Sunday, July 23, 2006

Do You Need a Lawyer?

Thirty-five years ago, Jake Warner and Ed Sherman kick-started the legal self-help movement by publishing Nolo’s first do-it-yourself legal guides. This week, we’re speaking with Jake Warner, one of the founders of Nolo, and the author of several books, including “Everybody’s Guide to Small Claims Court.” Today, we’re going to talk about a question that’s directly related to Nolo’s mission: when do you need a lawyer, and when can you handle something yourself?

NOLO: Jake, last year Americans paid their lawyers over fifty billion dollars for personal legal services. Are we paying too much for legal services?

JAKE WARNER: Absolutely. We’re paying $300 an hour on average, for a lot of services that are probably worth $50 or $100 per hour, and one of the reasons is that lawyers have a cartel, which basically says that lawyers own the law. They don’t just own some of the law, or a little bit of the law, they own all the law, so even if you have the simplest kind of procedure, something that is way simpler than doing your own income tax, not much harder than filling out a driver’s license application, for example, doing a name change. 99.5% of the name changes are approved; it’s filling out a few pieces of paper, taking it to a court clerk, and in a few states you have to go before the judge… that is going to be charged at $300 an hour, the same as if you are handling a complicated business transaction, or doing a criminal defense matter, or all sorts of other things where maybe lawyers are worth more. The truth is, by simplification, by making forms available at clerks’ offices, by providing some reasonable help, by a lot more electronics, we ought to be able to do a lot of these things on a versa teller-like approach, or a bank ATM-like approach, I guess I should say. Yeah, we’re paying way too much.

NOLO: Nolo is definitely not anti-lawyer.

JAKE WARNER: Well, Nolo was never anti-lawyer; lawyers were anti-Nolo.

NOLO: When we talk about non-lawyers representing themselves, there’s the viewpoint of the public, and the viewpoint of the legal profession. You were around when the legal self-help movement started in the early seventies; have the viewpoints of the public and the legal profession changed?

JAKE WARNER: Yeah, no question, and we’ve made a lot of progress. When we started Nolo in 1971, the attitude really was, lawyers own the law, they own every bit of the law, and no one else can do it, so there were absolutely no forms available for the simplest kind of procedure. Court rooms were very hostile; if you went into a court clerk’s office and asked the simplest question, “How do I fill out line one on this form?” they’d say, “That’s practicing law without a license; I’m sorry, you have to go get a lawyer.” So, we have come a long way in the sense of the legal profession, the consumer movement, a whole lot of forces in society have opened up the system to quite an extent, so it’s a lot easier now for a non-lawyer to do simple legal procedures. Does that mean it’s as easy as it should be? No, we’ve maybe gone halfway in the more progressive states, and not that far in the others, but I think we’re on the right track, and so, Nolo is now much more working with people to solve problems. Sometimes that involves lawyers, sometimes it doesn’t, you can do an all-self-help approach in one area, you need a little legal advice in others, and hey, if you’re charged with murder-one, you probably ought to turn the whole thing over to a lawyer; it’s a continuum.

NOLO: One issue that’s addressed in Everybody’s Guide to Small Claims Court is, “how do I know if my case is any good?” The book makes the point that unfair is not necessarily illegal, and because that’s the case, regardless of whether you’re in small claims court or superior court, isn’t a lawyer always going to be better-suited to decide whether you should proceed with the legal claim?

JAKE WARNER: Not necessarily; you’ve got to think about what a lawyer’s motivation is, and the main motivation is to pay the rent, to pay the secretary, to support his or her nice house in the suburbs and whatnot, so a lawyer’s going to look at your claim as primarily as, “Is there some money in it for me, as the lawyer?” But so many claims, where you feel like something was unfair or wrong, might involve twenty or thirty thousand bucks, say you are doing a kitchen repair or kitchen remodel and the contractor screws up – you’re out $20,000; it’s a real deal. You go to the average lawyer in America, and they’re going to say, “Wait a minute, this guy’s going to fight back, we have to go to court, this is going to involve depositions, this is going to involve a trial… there’s no way this is economic.” You might say, “Hey, if I pursue this on my own, I’m not paying a third or half of the money to a lawyer; I can handle this.” So, there are definitely times where checking your conclusions with somebody that knows more than you do and is experienced in the legal system makes sense, but it’s a false dichotomy to say, “Okay, we have all self-help over here, I just have to make up my own mind without any legal advice, or I’m going to turn the whole thing over to a lawyer.” There’s nothing to stop you from, say, calling up a lawyer in the phonebook and saying, “Hey, I want a consultation, half an hour; I’ll pay you $150, and just tell me what you think.”

NOLO: What about the conventional wisdom, that a demand letter on an attorney’s letterhead is more likely to get results than a demand letter from a non-lawyer?

JAKE WARNER: Right, okay, so you’ve got a conflict with somebody else; the question is, should you go get a lawyer and try to do the nuclear option, or should you choose some other option, and the answer, of course, is that it depends on the circumstances, and in many, many circumstances, what the lawyer will do, the lawyer’s letter, the lawyer’s phone call, will escalate the dispute. You get two people who have separated, they’re in a divorce thing, they’ve got a little kid, they’re on their way to working it out, they’ve had a couple of conversations, one person gets mad and runs to a lawyer… what’s the other person going to do? They’re going to run to another lawyer, and the lawyers will now spend two years and $50,000 or $100,000 arguing over something that the people are going to end up settling themselves, and the same kind of thing is true with a neighbor, with a small business in your community and whatnot; there are many other approaches. For example, community mediation is available in many, many areas of the United States, where you sit down, and you talk about it; it’s almost free – in some cases it is free – and you don’t pull the nuclear option, but hey, you’re a small businessperson, you’re on one side of the country, you’ve established your trademark, you’ve got your little business going, and some bigger company on the other side of the country suddenly grabs your name and isn’t going to let go of it, well, yeah, probably writing a letter on your own stationary isn’t going to be as effective as going out and hiring a lawyer with a good reputation in the intellectual property law area. So, again, it’s all over the place in terms of what the best way to approach stuff is, but running off to a lawyer every time you get mad at somebody is rarely the best option.

NOLO: One thing that’s often overlooked by non-lawyers who pursue legal claims is that winning a court case doesn’t guarantee you can collect; all you get when you win is a piece of paper that says you’re the winner. So, can laypeople collect judgments with the same efficiency as an attorney?

JAKE WARNER: Yeah, you know, I think it’s the wrong way to think about it; like, if you have a small claims case for example, and you’re considering whether to go ahead with it, you really have to ask that question before you file the lawsuit in the first place, whether it’s a lawyer, or it’s you, because most judgments are pretty easy to collect; if you sue a business, hey, the business is there – if they won’t pay, you can go take the money out of the cash register, send the sheriff over, he’ll take it out of the cash register, and he’ll charge the business. If you’re suing an individual, you can garnishee their wages. So, most people have assets, and collecting is no big deal, whether you’re an attorney or you’re not an attorney. The kind of people, especially, say, in a small claims venue, where you’ve got an unlicensed contractor who does his whole bank account out of his back pocket in twenty-dollar bills; that kind of person is going to prove almost impossible for anyone to collect from, and the lawyer is not going to be one bit easier; in fact, the lawyer, who values his time at $300 an hour, is going to say, “Turn it over to the collection agency,” and the collection agency, if they don’t find it easy to collect, will just give up, so no, I think in most circumstances, you’re really using your intelligence in advance.

NOLO: Don’t non-lawyers, because it’s their case, lack that non-emotional perspective that’s necessary to convince a judge or jury?

JAKE WARNER: Go down to a small claims court almost any day, in any place in America, and you will see people standing on their own two feet presenting their cases so unbelievably more convincingly than any lawyer would ever present it, because they know they’re right, and they believe in it. Now, does that mean you have to be confident to succeed if you just get up there and blabber on and on and call the other guy a dirty rat and whatnot, are you going to win? No. So, yes, you need a little knowledge of how to proceed, that’s part of it, but you can learn that. In some cases, getting a little coaching from a lawyer may help, and yes, it’s true that in some situations where you are so seeing red that you can’t think straight, getting someone to help you might make sense, but this whole, you know, lawyers invented this Madison avenue advertising campaign about eighty or 100 years ago, that somebody who represents themselves has a fool for a client, and they’ve sold that to America. Well, why have the sold that to America? Because they’re selling their services at $300 an hour, just like accountants aren’t real happy with you going and buying turbo-tax and doing it yourself.

NOLO: Is choosing a lawyer always going to be an either-or situation, or are there new paradigms for working with lawyers?

JAKE WARNER: You know, when I started all of this, getting involved with law and self-help and whatnot thirty-five years ago, almost every state had a ruling that if a lawyer represented you any kind of way involving a certain kind of legal case or dispute, they had to represent you in the whole dispute, otherwise, ethically, they couldn’t take the case. Well, part of that, we’ll leave aside whether that was part of the lawyer cartel’s political paradigm, but that’s the situation you face. Lawyers have come to realize that the average consumer just can’t afford $300 an hour, especially to do a lot of ministerial things, like fill out forms and drive to the courthouse and whatnot, so what we’ve got is a new movement called “unbundling,” lawyers call it unbundling, which is just great; they can never come up with plain English, even for something as simple as saying that the lawyer can help you with part of the case, and you can do part of the case yourself, which is what unbundling means. So now, in most states, in most jurisdictions, there are lawyers, and some of them will advertise because now we have lawyer advertising, “Hey, we’ll help you help yourself,” and if you’re in a situation where, say, your mom dies, you’ve got to push an estate through probate, it’s filling out a lot of forms, it’s not contested, it’s not going to go to court, it’s just a lot of work, and this thing has to go before this thing has to go before this thing, you can get a lot help from the court clerk these days where you didn’t used to, but you may want to, at some point, go to a lawyer, review what’s going on, maybe even have them handle a tricky part of it, but do 80% of it yourself. Hey, that way, maybe you spend $500, instead of $5,000, so yes, you can do that these days.

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