Disenfranchised: Gaping Hole in System Deprives Many of Legal Recourse
By Mark Deuitch, CEO, PeopleClaim.com
Many Americans would be surprised to learn that when it comes to civil cases their "right to legal counsel" has a catch-22. What if no lawyer will take your case? It turns out this happens all the time, leaving people confused, frustrated, not knowing where to turn, and prone to give up.
According to a recent study, 95% of medical malpractice victims would have serious trouble finding a lawyer. Winnable case but less than $250,000 in damages involved? “Not interested,” said more than half the lawyers surveyed. Make that $500,000 (or more) if a win is less certain.
The "winnability / damages / cost-of-services" equation applies to ordinary non-contingency cases as well. A slam-dunk case with likely damages of $15,000, where expected legal fees would run $16,000 makes no sense. For most prospective clients, numbers like this will end the discussion.
What's being done about it? Not enough. Traditional alternatives like small claims court and legal aid can handle only so much. But a relative newcomer, online dispute resolution, shows promise for a wide variety of situations where hiring a lawyer is out of the question.
If you can't find a lawyer, what are the options?
1. Keep looking. A key variable is cost of services. Hourly rates for lawyers run from less than $100 in small towns and solo practices to $400 and more in large big-city firms. So, depending on the lawyer's fee structure, the winnable case with $15,000 damages could cost you, say, $6,000 rather than $16,000.
2. Try small claims court if it's a low-damages case. Caps on claim sizes vary by state, but most range between five and ten thousand dollars. If your damages are under the cap, you can go this route and get a judgment without a lawyer. Remember, getting a judgment and collecting are two different things. This can add time to the process and you may find it difficult to get what you won at court.
3. Advocate for yourself. Called pro se litigation (pronounced "pro say"), this form of representation is on the rise in a variety of civil suits, especially divorce – despite many judges’ dislike of pro se trials. Your chances of winning are generally greater with a lawyer; in fact, you can be at a huge disadvantage without one. To have a chance to win you’d need to study the area of law involved, fulfill all necessary paperwork, make all required appearances in court, and present your case well.
4. Seek legal aid services. You can get a lawyer to represent you if you qualify for legal aid. Legal aid organizations are need-based, so qualification may depend on lower-than-average income levels, whether you're receiving public assistance, are a disabled veteran, a victim of domestic violence, an immigrant, have HIV/AIDS, or other considerations. For a state directory of legal aid organizations see this: http://hirealawyer.findlaw.com/do-you-need-a-lawyer/state-legal-aid-resources.html. State bar associations and/or law schools sometimes offer their own legal assistance programs, so these, in addition to designated legal aid organizations, are worth exploring.
5. Try online dispute resolution. Online dispute resolution has shown an ability to get people settlements for a wide variety of problems. It's an option worth exploring if you can't get a lawyer – or if you have an everyday dispute you'd prefer to handle yourself, without intermediaries. For example, Natalie D., an American college student on an overseas trip, was forced by a connecting airline to pay a $100 excess baggage fee in cash, despite assurances by the primary carrier that there would be no additional charges. She used PeopleClaim to file a complaint with the connecting airline with demand for a full refund, plus $50 for her time and trouble. The claim was emailed to the airline. The airline reviewed the complaint, which was marked for posting online, where it would be available to search engines for public scrutiny and comment if not resolved promptly. In three weeks Natalie received an apology, plus a check for $150. This claim, like any other settled through the system, was removed from public posting after settlement. It’s a simple process, and it can work for consumers, patients, employees, tenants, and businesses looking to settle disputes without a lot of expense and complexity.
About the author. PeopleClaim founder and CEO Mark Deuitch is a DePauw University alumnus and graduate of the University of Saint Andrews, Scotland. With a background in the financial services industry, he started the online dispute resolution service PeopleClaim as a social experiment to see if the power and efficiency of the internet could be applied to solving problems people encounter with daily transactions of all kinds.
