Lawyers’ Fees

The following copies of email messages are self explanatory:

Thank you for responding to my email message.

Although I am not a lawyer (or rather I should say
BECAUSE I am not a lawyer) I have a strong personal
interest in law reform, having been myself the victim
of lawsuit abuse (of an unusual type).
My experience led me to the same dismay at our legal
system as you express; however I come to different
conclusions about the causes and solution.

> As it is, every case not has a “settlement” value
> (extortion value?), since
> you can sue anyone for anyreason … and usually not
> be faced with the
> consequences
> of at least having to pay the other sides legal
> fees.

This is unfortunately true.
But what is the reason? The keyword is “LEGAL FEES”.
Why are legal fees so outrageously high that the issue
of fees is greater than whatever is the issue of the
underlying litigation? This is obviously because the
lawyer industry – whose sole interest is in achieving
high legal fees – has taken over the courts.
Since the 1930’s and 1940’s the bar associations
(lawyers’ trade unions) have quietly, little by little
taken control of the entire judicial system.
The reality today is that the courts no longer exist
to serve the public in resolving their disputes – the
courts exist for the purpose of enriching members of
one particular industry – the legal industry.
“Unlawful practice of law” laws, “vexatious litigant”
laws, and other sanctions laws (which in practice, if
not in theory, only benefit the lawyers)have created a
monopoly by cutting out the competition.
I don’t think people are any more litigious today than
they were in former times. I don’t have statistics to
back this up, but I think that in colonial times there
was more per capita litigation than there is today.
The difference is that a higher percentage of
litigation in those days was “pro se” (people
representing themselves without a lawyer). The book
“Everyman his own lawyer” was a bestseller in colonial
times, and lawyers were actually banned from some
courts (or,in some, not allowed to charge a fee).
It’s obvious! Who has more incentive to drag out a
simple dispute into years and years of litigation:
someone who must take time away from work and family
to represent himself in court – or the lawyer who
earns hundreds of dollars per hour sitting in court?

And the presumption that a litigant who hires a lawyer
to represent him is less likely to file groundless
litigation than a litigant who doesn’t is totally
irrational. The United States Supreme Court said the
following:

“Under our adversary system, the role of counsel is
not to make sure the truth is ascertained but to
advance his client’s cause by any ethical means.
Within the limits of professional propriety, causing
delay and sowing confusion not only are his right but
may be his duty.” (Walters v. Nat. Assn. of Radiation
Survivors (1984) 473 U.S. 305,325 (upholding
constitutionality of 38 U.S.C. §3404© which limits
to $10 the fee that may be paid an attorney
representing a veteran seeking VA benefits).

The fact that “lawyers” and “groundless litigation” go
hand in hand has been universally perceived by most of
humanity since ancient times. Even the ancient Romans
recognized that the danger of an increase in
groundless litigation is greater from lawyers’ greed
than from innocent errors of pro se litigants. “During
the rise of Rome, its citizens involved in lawsuits
pleaded their own cases, as was true everywhere in the
ancient world. . . . According to the lex cincia
passed by the Senate in 204 BC, the advocati [legal
experts] were forbidden from taking fees. During a
Senate debate [47 AD.] of the issue, Senator Gaius
Silius said:

“If no one paid a fee for lawsuits, there would be
less of them! As it is, feuds, charges, malevolence
and slander are encouraged.” (Tacitus, The Annals of
Imperial Rome, Penguin Books, Harmondsworth, 1956,
pg.233).

This common sense held sway for much of early American
history also:

“Lawyers were actually banned outright or faced tight
restrictions in many colonies for much of the 18th
century. . . . The “Body of Liberties” adopted by the
Massachusetts Bay Colony in 1641 expressed the typical
attitudes of the time: “Every man that findeth
himselfe unfit to plead his own cause in any court
shall have libertie to employ any man …, provided he
give him noe fee or reward for his pain.”. .
. The strong tradition that each American should be
able to master the laws probably peaked in the years
between . . . 1825 and . . . 1865. Most states
enforced few if any restrictions on non-lawyers
appearing in court on behalf of others – as Lincoln
himself did before he talked a judge into granting him
attorney status. . . . the American Bar Association
convinced states to pass “unauthorized practice of
law” statutes in the 1920s and 1930s, which
effectively gave lawyers a monopoly over the sale of
legal information. . . . in the last two decades many
Americans . . . have begun to assert their historical
and constitutional right to participate in the legal
decisions that affect their lives. Unfortunately, the
Bar – despite the fact that its leaders concede that
at least 100 million Americans can’t afford lawyers –
continues to resist this powerful democratic trend.”
(Warner, Every American a Lawyer” at
).

> Some of these suits
> are “frivolous” …
> some may simply be lacking in merit. (a real victim
> who was injured, but not
> by actions
> of the defendant.)

What is a frivolous lawsuit? Anyone who is sued by
someone else thinks the other side’s case is
frivolous. Is it frivolous to sue McDonald’s because
you burned yourself by spilling a cup of their coffee
on yourself? One lady got an award of millions of
dollars over such an incident. Someone else (with not
as sharp a lawyer) would have been thrown out of court
for bringing such a “frivolous” suit. In other words,
what is or is not “frivolous” is an entirely
subjective judgment.

“Webster’s defines the term ‘frivolous’ to mean ‘of
little or no weight or importance.’ Webster’s does not
say ‘of little or no weight or importance’ to whom.”
(GOLDSMITH, “Frivolity is in the Eye of the Beholder”,
139 N.J.L.J. 435 (1-30-95, p.23)).

Punishing people for bringing (in good faith) a
lawsuit which a particular judge considers “frivolous”
does not serve the cause of justice. Such sanction
laws do not simplify litigation they create mountains
of new litigation about the new issues created (what
is or is not frivolous, etc).

“Unnecessary laws are not good laws, but traps for
money” – Thomas Hobbes.

I am writing because your organization acknowledges
the problem (which nearly everyone acknowledges)- that
our court system doesn’t work well and something
should be done about it – but takes an oversimplistic
approach to solving it – one which is dangerous.
Limiting access to the courts (which is the practical
result of punishing so-called “frivolous” lawsuits) is
dangerous.

“. . . untrammeled access to the courts promotes
social peace by providing the citizenry with an
alternative to potentially dangerous self-help methods
of redressing private grievances.” California Supreme
Court in Crowley v. Katleman (1994) 8 Cal.4th 666,694.

Instead of more laws restricting access to the courts,
the courts need to be more open to the public and less
of a private club for lawyers and judges. That would
go a long way toward solving the problems which you
have correctly identified.

Specifically, I propose the following:

1. Repeal of “unlawful practice of law” statutes
(which prevent people from seeking legal help from
non-lawyers);

2. Repeal of “vexatious litigant” statutes (which
punish litigants who fail to hire a lawyer);

3. Repeal of sanctions statutes such as Cal.Civ.Proc.
128.7 (which terrorize pro se laymen who fail to dot
every “i” or cross every “t” in their court papers);

4. Enforcement of existing Barratry statutes (Common
barratry is the practice of exciting groundless
judicial proceedings “with a corrupt or malicious
intent to vex and annoy.” – it applies equally to
lawyers or non-lawyers);

5. Choosing judges from real,three-dimensional people
of integrity,instead of from the ranks of lawyers
(most countries have a separate education track for
becoming a judge);

6. There should be many changes to our anachronistic
civil procedure rules. Why, in a society where we can
communicate around the world in seconds by internet,
are we locked into 14th century procedural rigamarole?
Decisions involving life, death, liberty and property
take years to resolve? Obviously, because we are being
held hostage to the lawyer industry.

The courts belong to the public, not to one industry –
the lawyer industry!

> —–Original Message—–

> Subject: lawsuit abuse
>
>
> >I came across your website today at
> >.
> >I am very interested in law reform, however I
> question
> >your approach (at least from what I see at your
> site).
> >
> >As I understand it, your goal is to reduce
> litigation
> >in general by promoting legislation that will
> punish
> >frivolous lawsuits. Is that correct? In my view
> (based
> >on some unfortunate experiences as a pro se
> litigant)
> >such legislation would most likely have the effect
> >opposite of that intended. I can explain what I
> mean
> >if you are interested. In any case, I am writing to
> >see if your organization still exists and if I have
> >correctly characterized its goals.

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