Does the Legal System Bully Americans?
by Kathy Batesel
No Justice, Just Judiciaries
We've heard so much about schoolyard bullying and social media assaults on students in the last few years, but there's an insidious form of bullying that you don't hear much about. It affects adults. Those who fight back become more vulnerable than they were in the first place.
I'm talking about legal bullying - something I'm experiencing right now.
Keep reading to learn how legal abuse is victimizing people across the United States and what happens to victims. You'll also discover what you can do today to make a difference.
Details of my Story
I certainly didn't predict it when I had an opportunity to build two modular homes near the river for $191,000. I knew they would sell for over $250,000 easily. One home contained more than four acres of land and the other just over two acres. I hired a general contractor to oversee the process. As a real estate agent, I was familiar with many aspects I needed to know, but not the technical side of things. My contractor would handle those.
Getting a loan was easy. I had great credit and enough assets to cover the loans if needed. The loan officer had me sign the paperwork and handed me something called lien waivers. "You have to turn these in to collect draws on the loan," he said. A draw was the money to pay for work being completed. I did what he instructed.
Unfortunately, he didn't explain that the signature block wasn't meant to be signed by me. It was supposed to be signed by the person getting the money as proof that they got paid for the work they did. When my general contractor demanded funds to pay subcontractors for getting the ground ready, pouring concrete, and the labor associated with things like this, I turned in a lien waiver and wrote the check so he could pay the laborers.
A month later, after I'd spent most of the loan, the bank finally informed me that the forms weren't being completed correctly. A few months later, I discovered that the general contractor had misspent nearly $30,000! I had to pay subcontractors out of my own funds to avoid having them place liens against the properties, and was forced to take another loan to complete the construction, adding another $40,000 to my debt I owed the bank.
I kept making payments. In fact, I never missed a payment on the loans, but the bank foreclosed after a year of my offering to give them the property titles - a process known as a "deed in lieu of foreclosure." I made $17,000 in payments after telling them I couldn't afford to keep doing so, and wiped out my retirement funds in the process. There was no reason to rack up the legal charges for a foreclosure, but they did it anyway.
I wish now I'd let them foreclose much sooner. I would have spent that $17,000 to fight instead of believing the bank's vice president who said they would take a deed-in-lieu if I did find myself unable to make payments.
Foreclosures, Debt Collection, and Divorce
If you've ever been involved in a court case, you already know that the proceedings can take a long time to get resolved. You also realize that what audiences see on shows like Judge Judy aren't what happens in a typical courtroom.
What does happen is far more sinister. It often begins before they finally receive the official notice that they're being sued for some reason. They've known that the divorce was coming, or that they've been behind on their bills. But few of them realize that receiving that piece of paper that says they'll have to go before a judge is just the start of their nightmares.
In my case, I did everything I could to avoid that moment. I'd already coped with a horrendous custody case that my ex-husband went through. That one had cost us over $25,000 and taken up about years of our lives. If I never see the inside of a courtroom again, I'll be a happy woman. But alas, that's not the way of things.
My real estate practice was flourishing when I took out a $191,000 loan to build two houses. Later, I had to take another loan to finish them, bringing the total I owed the bank to $230,000. Over the next couple of years, a combination of factors found me unable to continue paying. I'd relocated because of divorce, and the houses weren't sold by the real estate agents I'd hired. For over a year, I offered to let them go back to the bank, but the bank refused to take them. I knew the market value of the houses was at least $250,000 and that the bank would not lose money.
The bank resold the properties for about $320,000, so they got about $90,000 in profit. So why are they suing me for $11,000? I hired an attorney to attempt to settle the matter. I had $4,000 left, and instructed my attorney to offer it to them.
He said, "They said they will settle for $11,000." I paid him $750 for helping me get nowhere.
Many people don't have a thousand bucks to plunk down on attorney fees, especially when they're involved in a debt collection suit of some sort. They may want to do everything they can to keep their costs down, including representing themselves, but the legal system is intimidating and complex. Here's what they typically discover:
- Attorneys cannot work as consultants for a person who wants to represent themselves. To be precise, they can work in very limited capacity, but they cannot prepare paperwork of any type or offer legal arguments to a person who is not paying for full representation.
- In many cases, the attorney representing their adversary is well-known to the judge. After all, the judge and attorneys have shared the courtroom many times - sometimes for decades! Attorneys don't want to annoy the judge by taking on cases that they know are boring - money disputes and angry custody battles tend to fall into this category. They don't generate publicity or popularity that will get a judge re-elected.
- In small communities, a company or bank like the one suing me often makes political contributions and has hired most of the legal representatives in the area at one time or another. Thus, the local attorneys may have a conflict of interest that prevents them from taking any stand against the company. In my case, for instance, every attorney that works in real estate in the county where the suit's taking place turned down a request to represent me, and the bank hired a lawyer from a neighboring county, limiting my ability to get representation there, either.
- Attorneys may be willing to settle cases, but usually won't defend them at trial unless there's a very high dollar amount at stake. If a defendant has gone to great pains to keep accurate records, they might find representation on a cut-and-dry case, but in many cases attorneys won't bother hearing the details of a $20,000 case, for instance. "Trying this case will eat up anything you stand to gain," they'll say.
What's Wrong with the Judicial System?
Legal Abuse Syndrome
The American court system is not designed to encourage win-win solutions. It was established in a way that forces disagreements to become adversarial. This has fostered a mentality of "I'll ruin my opponent by burying them in legal actions that will eat up their finances and cause a great deal of strain for the next few years."
The authors of , state "PTSD/LAS is a traumatic reaction that follows a severe usually invisible impact event in the Court. The event is usually traced to the moment adjudication favors the side committing fraud on the court through misinformation used as strategy." In this book, psychologists Karen Huffer and Barbara Parrett describe how the court system perpetuates fraud that victimizes everyday Americans like you or me. Legal Abuse Syndrome
The problem is not entirely new. The dilemma faced by people unable to obtain justice in the American system have been receiving public attention for nearly a decade, but few advances have been made. Huffer and Parrett's book was published in 2005. That same year, the Legal Services Corporation reported on the problem. The report examined data since 1980 and revealed that more than 40% of Americans lived in areas not served by any legal aid programs, and that low-income households had an average of one legal need per year. The agency's definition of low income includes any household where income is 125% of the national poverty level, about $29,000 for a family of four in 2012, or about $19,000 for a couple with no children according to federal guidelines.
These numbers don't reflect the many thousands of people who are solidly middle class and still can't afford an attorney. As discussed by Kevin Coffee in his article on how middle class people cannot afford $250 per hour to hire an attorney, while underemployed legal graduates are hungering for business and could benefit from providing services between $50 and $100 per hour, something that sadly, hasn't happened.
Worse, many attorneys rely on their clients' ignorance and perform at a minimum standard, which is a violation of ethical principles and laws on fiduciary duty, but which the average person can rarely detect, much less prove. This could be an even greater problem among fledgling attorneys if they did cut their rates sharply to serve the populations that can't afford prolonged legal battles.
- LSC Programs | LSC - Legal Services Corporation: American Partner for Equal Justice
If you need legal help and believe you meet the income guidelines discussed here (125% of the federal poverty level), check out this list of legal aid resources by state when you need legal help.
Ensuring Legal Representation
America was created with an ideal that its citizens should have equality. It's true that the founding fathers' idea of who exactly could be considered a citizen has changed over the years, but the idea remains strong in the American people.
Yet today's citizens are no longer able to enjoy the protections offered by the U.S. Constitution because of the monopolization of the judicial system. Even practiced attorneys get confused by legal principles that affect all of us. Thousands upon thousands of laws, regulations, standard operating procedures, and case law have created an insurmountable mountain of legal standards that are confusing and often conflict with each other.
It's no wonder that court outcomes are so unpredictable!
However, this is something that we, as Americans, must object to if we want to retain our ability to be treated fairly in the judicial system. If the average American cannot rely on the justice system to be just, our society must be prepared for the outcome:
- Unfair practices from businesses.
- No means to ensure fair treatment from businesses and people we engage with.
- Increased psychiatric problems like post-traumatic stress disorder and depressions that result from feelings of powerlessness and loss.
- An increase in vigilante actions by disillusioned citizens who see no recourse but to take the law into their own hands - sometimes going off the deep end and committing outrageous acts or committing suicide.
- Immense financial burdens that may never be conquered within a victim's lifetime.
Congress created the Legal Services Corporation (LSC) decades in 1974 to battle this problem, but by 2011 the entire federal contribution for LSC's services to provide low-income people (more than 57 million Americans qualified in 2011) was $420 million. This sounds like a lot, perhaps, but consider that these funds not only pay for attorney fees, but must support the nation-wide corporation that administers the funds, determines eligibility, operates outreach and advocacy programs, and more.
A review of the LSC's 2011 budget request reports that a survey by the World Justice Project Rule of Law Index ranked the U.S. last in comparison to other countries when examining accessibility and affordability of legal services.
Remember, these figures only represent assistance available to people who earn 25% more than poverty level. A person earning $40,000 a year who is sued for $25,000 may never be able to obtain sufficient representation to win a case, or to recover from a loss because they had inadequate representation!
Law Professors Reveal Reasons for Legal Abuse
Deborah Rhodes' comments on the legal system (linked above where she is quoted) highlight the reasons our legal system perpetuates such abuses:
- The public doesn't have a realistic view of the costs of litigation.
- The public also believes the poor have access, even though less than 20% of all applicants receive more than token advice.
- The cost of subsidizing equal access to legal representation would be extremely high.
- Unrealistic caps on fees keep many attorneys from taking cases. Felony cases might pay only $1,000 maximum to the attorney working the case, for instance.
- Legislative bodies have failed to enact effective principles to ensure access.
- Courts do not appoint counsel in civil cases, resulting in the quality of a case relying purely on a litigant's financial means instead of the merits of his or her case.
- Severe and chronic lack of judicial oversight to ensure quality of at attorney's work. Examples of poor quality have included attorneys that have appeared drunk, were sleeping during trial, absented themselves from key points in the trial, or when the lawyers did not have experience to represent their clients.
- The "system" has been designed for and by attorneys rather than for the public it's supposed to serve.
Fight Legal Bullying
There is a high chance that you or someone you love will find themselves unable to launch a strong defense or to sue someone who has wronged them simply because the cost of doing so is too high for them to pay at some point in your life. Will it be your child, a parent, a friend, or will it be you?
Please consider taking a simple action to spur a change so that every American has equal access to the right to be heard in the only legal system we have - write a letter to your representative and let them know you're a voter who feels strongly about these issues.
Write a letter to your representatives asking them to sponsor a bill that requires attorneys to either abide by the American Bar Association's recommendation of providing fifty hours of pro bono (donated) services each year or to pay the equivalent of fifty hours of their billable rate into a legal aid fund to support citizens who earn less than 200% of the federal poverty level. You can find a list of your state's representatives and senators here.
Here is a sample letter you can copy and paste into a word processor to make it easy to do.
I am a voter registered in the state of _____________. I am writing to ask you to sponsor a bill that ensures better legal representation for American citizens by requiring attorneys to complete the pro bono work recommended by the American Bar Association (50 hours per year) or to donate fifty times their billable rate to a fund to help Americans offset the costs of obtaining legal counsel.
This is an important issue that affects most Americans in the lower and middle classes today at every level of our existence: how safe we are in our homes, our financial matters, and our daily affairs. Please show your support for American citizens by addressing this vital issue.
No More "I Can't Afford an Attorney"
There's no reason such an affluent country as ours, with this highest percentage of attorneys in the world, should have the worst legal representation of any developed country.
Taking this action won't simplify our laws, but it will make it easier for millions of Americans to get help if we can band together to force our legislators to do what they've promised - look out for our best interests.
Hopefully, it will ultimately disprove the notion that justice is "blind" to the needs of the people who need it most.