Doing Justice

Abraham Lincoln admonished, "Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser - in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.” "The Collected Works of Abraham Lincoln edited by Roy P. Basler, Volume II, "Notes for a Law Lecture" (July 1, 1850).

I enjoy trying cases. Over the years, I tried hundreds of custody, divorce, criminal, and civil cases. As a lawyer it can be an incredible intellectual and professional exercise. In many instances, it is the worst thing for the clients. The trick is knowing when to battle and when to bend and then convincing your client to go along.

Most clients want their day in court. Some simply need to tell their story to someone who they believe has the power to fix it or, perhaps, just someone who cares. It is cathartic. Or, frequently, they believe, rightly or wrongly, that once the judge hears their side of the story the day will be carried, the battle won, and the war will end in a glorious victory. That is rarely the case and, usually, the ones who are most insistent on warfare are those with little ammunition and are least likely to be successful. Regrettably, there are far too many attorneys who happily take cases to trial with little or no effort to resolve the matter.

Despite a spate of alternative dispute resolution (ADR) programs and prompting by courts and sectors of the profession, settlement discussions seem foreign to many attorneys. They seem to lack either the ability or desire to convince their clients of the benefit of compromise. Even the inducement of decreased attorney fees, an expeditious resolution, and the certainty of the outcome are inadequate to keep some people out of court.

Ignoring the formal ADR or mediation programs, I am amazed at the number of attorneys who do not offer a settlement proposal; even a bad one. Some seem almost shocked to receive a letter or phone call in which a position is laid out and negotiation is invited. It is as if it is a new concept; an alien thought. What should be an expectation is often not even a fleeting thought.

In two decades of representing private clients, I learned that when given a thorough explanation and the chance, she will consider the cost and risk of litigation except in the most emotional of contests. A client should insist on making reasonable settlement overtures or she should expect to spend, perhaps, thousands of dollars more than may be necessary and risk an unfavorable judgment at trial. If she is not reasonable and realistic, the only winners in the case are the attorneys whose bill will grow hour by billable hour.

Legal Aid and pro bono clients are a different circumstance. Since no fees are involved, it may seem there is limited pecuniary benefit or risk. Even though he may not be running a tab with a lawyer, he must consider the benefits of resolving versus trying a case. There is a risk of an adverse result such as the loss of custody or property, or even homelessness. It is understandable that if a client has little it may be difficult to part with even a small portion of what he has and can ill afford to lose. Still, he and his attorney must make the effort to minimize the potential loss. He should treat his case like the bird in the hand rather than taking the risk to have the two in the bush.; they are often very elusive.

There are times when trying a case must happen and times when resolving issues outside the courtroom should occur. Part of being an attorney, a good attorney, is in knowing when to do battle and when to use diplomacy. Lawyers need to know that the best way to do business is to do justice. Getting cases to resolve in a fair and appropriate manner is the best advertisement for an attorney and the legal profession.

The legal system is often a winner take all arena where there are winners and losers. Well reasoned resolutions often create win-win situations in which each party gets some or most of what they really want usually at a fraction of the cost financially and emotionally. Perhaps, the time has finally come when lawyers and clients alike will understand the need to talk, to compromise, and to take their legal matters into their own hands.

Pro Bono Heroes

October 25 – 31, 2009 is the National Pro Bono Celebration sponsored by the American Bar Association’s Standing Committee on Pro Bono and Public Service. I, too, would like to extend my gratitude to all those who handle pro bono cases. And, I would like to challenge those who do not to consider joining the effort.

The reward for accepting pro bono matters is far greater than you can imagine. Yes, you spend time for which you receive no monetary compensation. Yes, your staff spends time that you cannot bill. And, yes, you use some office supplies that could have been used for a cash client. But, the satisfaction of helping a person who could easily have been lost in or entirely excluded from the system is a reward in and of itself. It is knowing that you gave your time and talent not the person best able to pay for them but to the person most in need; not for pay but because it was the right thing to do. To them, you are a hero.

Before leaving private practice in Pennsylvania to work at Legal Aid, I had the good fortune to work in a county in which the bar association decided to make pro bono effort a priority. With the strong support of most of the bench, a program was developed which encouraged attorneys to accept pro bono cases. Last year, 60% of the nearly 500 members in the bar association either handled a case for a qualifying client or they paid the $250.00 “opt out.” The opt out provision allows attorneys who are not assigned a case, who practice in an area not conducive to pro bono representation, or who would simply rather not take a pro bono case for any reason, to participate. The opt out fee is then donated to the legal services provider in the area.

In addition to the pro bono program and the encouragement of the bench, the bar association also runs periodic “custody workshops” on Saturday in which clients can receive information regarding custody or representation, if appropriate, from volunteer lawyers. The bar also issues an annual pro bono award to an individual and firm for their efforts for the poor.

There are undoubtedly similar efforts in many other locations to meet the legal needs of an ever increasing number of qualifying persons. At a time when the economy is floundering, joblessness is rampant, and legal aid organizations are being stretched very thin, those lawyers and paraprofessionals who step up to fill the void are invaluable and worthy of all the praise and thanks we can muster.

Seeing The Poor

“The poor are despised even by their neighbors, while the rich have many “friends.” Proverbs 14:20. This too often is the case for the impoverished in the legal system. I don’t believe that judges or jurors want to or even intend to treat the poor differently; they just do.

Often, the reasons for decisions against the poor are couched in terms that allow the tribunal, social worker, or anyone expressing an opinion to feel OK about it. The poor mother cannot have custody because her house, where the children have lived all their lives, is inappropriate as compared to dad, who moved in with his parents after the separation. The poor father cannot have custody of his child because the grandparents, who saw the child sporadically before their daughter died, can provide a more stable environment, or they would go to a better school in a better neighborhood. A landlord can evict a tenant whose neighbor suspects she may be committing some crime just because she lacks the financial resources to stand against them. Why?

These things happen because they are poor. They happen because it is easy to look at someone and think that they are not worthy simply because they have little or nothing. We can look at the litigants on each side of the aisle and see the poor man in his shabby second hand clothes and the opponent in his nice suit and tie. It’s easy, but it’s wrong.

The church is admonished not to show favoritism to the rich over the poor in the congregation or give them status based on their wealth and dress. Just as important, I believe, is the need to change the way the courts, attorneys, social workers, those involved in the justice system, and even the public perceive those who qualify for free legal services; those who live in the neighborhood of the federal poverty level. Part of the problem in relieving some of the burden of the poor is how they are seen by those who are not poor.

I was in private practice for 19 years before choosing to leave my partnership to work at legal aid. I did a great deal of pro bono work, most of which was the referral of clients from the local legal aid office when it had conflicts or lacked resources to assist. On a number of occasions, I was in court with my pro bono clients at the same time legal aid attorneys appeared with theirs. There were obvious differences in the treatment of my clients and me as compared to the legal aid attorney and his clients. It was inexplicable given their similar financial status other than my clients were with private counsel and apparently able to pay their own freight.

In order to achieve justice, we cannot look at a man’s clothes, his station in life, the color of his skin, or the accent with which he may speak. We cannot apportion justice based on a person’s perceived importance to the community or ability to pay for representation. We see poor and assume any number of reasons for it. In most instances, those assumptions are simply wrong, particularly in the current economic environment in which many suddenly find themselves in financial distress through no fault of their own. Clearly, we must learn to control how what we see affects what we think and the decisions we make. We must see the facts but not see the circumstances of the litigants.

But, you may ask, exactly how do we do that. It's not easy. Let's face it, we have an almost instinctual ability to jump to conclusions. We see something and assume we know the answer even before we are sure of the question. That's why advertising works so well. They tell us something over and over again until it becomes the first thing in our head when the trigger is pulled. The trick is to overcome the knee jerk response.

We must remember the words of Dr. Martin Luther King, Jr. who said, "I have a dream that one day this nation will rise up and live out the true meaning of its creed: We hold these truths to be self-evident, that all men are created equal."

The courts, we as individuals, and society as a whole need to learn to take a lesson from lady justice and approach life blindfolded. Then, perhaps, we will realize the dream for the poor and for all of us.

The Importance of Volunteers

This is National Volunteer Week and those who volunteer in any arena should have the gratitude of all. Whether your efforts are directed to schools, churches, playgrounds, non-profit organizations, or just picking up the trash in the neighborhood, thank you. I want to give a special nod to those who volunteer to represent the indigent in legal matters, particularly in these times when more people are in need.

Non-lawyers often comment that lawyers should do free work because they charge so much and make so much. That is true in many instances, however, the pressure on lawyers to work, bill, and generate business in private firms is very strong for partners and associates alike. The cost of running a law practice or any business is mind boggling when you actually find yourself in charge. There are bills, fees, expenses, and taxes around every corner. There is also the concern of providing a paycheck for all of the folks who help make things work.

Doing pro bono work in a private firm is often like walking a tight rope as it may be important to some of the powers that be but the lost revenue is always a concern. While in private practice, I had the luxury of working for or being a partner in firms which encouraged pro bono work. Despite this, partners and employers questioned the cost to the firm of the quantity of free work I did. So, I understand the sacrifice and precarious situation of those who feel the need to volunteer.

Let me say to those who give their time, energy, and talents, thank you.

Why Consider Pro Bono?

As the spring term begins at law schools across the country, third year students are frantically looking for jobs. At a time in which law firms are dissolving, laying off associates, and rescinding offers to summer associates, job prospects are bleak. The same economic factors that placed this legal talent on the market are also creating an ever increasing population eligible for representation by a legal services program. According to the law of supply and demand, what is the logical answer for lawyers without jobs? Legal Aid and pro bono, of course, is that answer.

Pro bono work requires the actual representation of clients. The experience of presenting your case to the court, investigating facts, developing a legal theory, drafting documents, and examining witnesses may give you an edge over other job candidates to keep your current position or help you land a job if you decide to go back to private practice. Frankly, a candidate with a year or two actually representing clients versus one who has labored in the cavernous law library of a formerly huge firm, mining arcane facts for memoranda that a partner will use to try to wow some corporate client should be more marketable.

But, working for a legal services program, or, for that matter, doing pro bono work as part of a private firm, is more than being a do-gooder, gaining practical legal experience, or giving back to the community. These are all good reasons for doing the work, but it's really about truly participating in the justice system. Representing clients for pay and billing by the hour is the business of the practice of law. It is how lawyers pay the bills and make a living. Giving freely of your time and legal skills to those most in need is the essence of justice. More importantly, it can be an eye opening experience as to how the system works or often does not work for those of differing socioeconomic status. It allows you to concentrate on the client and the result and not the bottom line.

Whether you are a practicing attorney, a soon to be law school graduate, or someone who found him/herself suddenly unemployed, remember there are a variety of reasons for considering working “pro bono” either for a legal services program or as part of your private practice. The important thing is to consider it.

Why Legal Aid?

"Each time a man stands up for an ideal, or acts to improve the lot of others, or strikes out against injustice, he sends forth a tiny ripple of hope...." -Robert Kennedy

The path by which attorneys become Legal Aid lawyers is probably as unique as the individual him/herself. The caricature of the “Legal Aid” attorney within the profession and in the mindset of the public at large is as inaccurate as the thought that all birds are sparrows. Yes, there are those who strike the casual observer as liberal crusaders. And, yes, there are those who think they can save the world one client at a time. And, there are those recent grads who want to jump right into the mix without laboring in the research department of some big firm for five years and use Legal Aid as a way to get immediate client and courtroom experience, albeit at an economic sacrifice. But, there are also those, like me, who are fiscally conservative, socially to the right of center, Christian, and Republican.

I can hear the audible gasps of disbelief. Conservative Republicans infiltrating Legal Aid? Can it be? Is it even legal? The answer to these questions is yes, yes, and yes. Let me explain how and why this happened and just as importantly, why it should.

After nearly nineteen years of practicing law in the private sector, I left my partnership to work for Legal Aid. Most reasonable people would be (and were) mystified by such a decision. After working long hours year after year to build a practice, establishing a fairly loyal clientele, and positioning myself to make a decent living, why would I opt to walk away and join the ranks of those who represent those who cannot pay? While that is a reasonable question, I doubt the answer will sound reasonable to many or, perhaps, even to some. But, to my family it made and makes perfect sense. It is where my heart lies. That may sound trite to some, but is the truth nonetheless. Fortunately, it is also the heart of my wife.

For nineteen years, I peddled my “talents” to whoever could write a check. In the midst of all of the criminal trials, civil trials, custody hearings, real estate settlements, bankruptcy proceedings, and zoning meetings, I also managed to do a fair amount of pro bono work. These cases often gave me more pleasure and a greater sense of accomplishment than those for which clients paid. The clients were often embarrassed by their inability to pay and the need to lay bare their soles to show their lack to prove their eligibility for pro bono representation. For those used to being self-supportive, this was a humiliating and traumatic event. For those who relied on government programs for sustenance, it was one more reminder of their perceived failure and station in life. I saw it as a ministry.

The Bible teaches that, “The godly care about the rights of the poor; the wicked don’t care at all.” Proverbs 29:7. By giving of my time and talents to help those in need, I meet part of my obligation as a Christian. While I hope to never need welfare or to rely on the charity of others, I certainly hope that if I do need assistance someone will care enough to help. And, given the political nature of government programs, I pray that someone other than the government is ready, willing and able to step up. Not that the government should not be the primary monetary support for Legal Aid; it should. However, its record on providing adequate funds for Legal Aid since its inception in 1974 has been abysmal.

I also found that those who could not afford to pay me, those who had so little, were often the targets of liars, cheats, and charlatans of every size and shape. Those who had great wealth, those at least financially comfortable, and even those with little seemed quite willing to take advantage of the poor. Frankly, at times they outright stole from them. There seems to be a never ending supply of people who are willing to perpetrate creative forms of dishonesty on those who live hand to mouth.

And so, with a great sense of righteous indignation, I repeatedly agreed to accept the pro bono cases. Then, I took on more and more. Pro bono work was an expectation of the attorneys in my firm as we were all Christians and ran our firm on a Biblically based business model. But, even in that environment given the business demands of running a law firm, one or more of my office mates suggested, from time to time, that maybe I was doing more than my fair share. It was my Achilles heel. If it meant taking the files home and working on them after work, I did. Luckily, my wife’s concern for the poor easily matched mine, so there was no question about spending this extra time.

As part of work for a committee I was on, I was looking for ways to help the many litigants who found the need to represent themselves but did not qualify for Legal Aid. I began to look at pro bono and court websites for ideas. My wife also began to look at these sites to help with the task. We had discussed the possibility of moving to a Legal Aid position as a sort of segue to retirement but I was nowhere near retirement. But our timing is not always God’s timing. We found the job I wanted in the place we often talked about moving to. So, we made all the arrangements to leave my partnership, sold our house, found a new house and packed. We delivered our daughter to college for her freshman year on Tuesday and moved on Friday.

I have now been representing clients for Legal Aid for more than a year. I have helped people to keep their children out of foster care, to keep a roof over their head, and to escape abusive relationships. I have had the opportunity to work with students, senior citizens, and abuse shelters in educational and professional settings. While our resources do not allow us to help everyone, there is great joy in telling someone you can help them with the custody of their child, to save their home, or to make certain they get the benefits to which they are entitled without ever saying, “if you write me a check.”

My path to Legal Aid is paved with faith, personal beliefs, and family. Others got to the same destination in a multitude of other ways. The important thing is that they and I arrived. I am impressed by the talent and dedication of my colleagues, particularly those who have dedicated their careers to it. This is a noble task which, to many, means the difference between sleeping in a bed or in a car in the Wal-Mart parking lot. So, when people ask me “Why Legal Aid?” I ask “Why not?”

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