I'm a few years removed from law school, but this really sounds like it should run afoul of the rules of professional responsibility. [off to poke around in the model rules for a few minutes]
problem with treating lawsuits as financial investments is that it treats a lawsuit as a means to an end, not an end in itself.
This is so wrong-headed it's hard to know where to begin. A lawsuit for money damages or equitable distribution is about recovering money, not an end in itself. It should not be filed if there is another way to recover the money, and should be withdrawn as soon as settlement on appropriate terms is possible. Continuing a lawsuit just to get to the end of the process (e.g. in the domestic case the wife insists, "I don't care how much he offers. I want the Court to tell him it was his fault we're divorcing") makes everything much more expensive and time-consuming, It also has very unpleasant effects on the lives of the parties and those around them, such as forcing the young children to testify in favor of one parent against the other.
Could different procedures make litigation less expensive? Probably, and the legal system has been experimenting with procedural change for decades, with some successes, such as no-fault divorce, and no-fault auto insurance. Lowering lawyer copmensaiton would also make lawsuits less expensive, but there's the problem of a free market at work. Since this author suggests no particular change, I don't know what he thinks we should do. The wealthy housewives are not good candidates for pro bono representation.
Disclosure: almost all of my firm's cases are lawfirm-funded, which isn't very different from third party-funded. These funding vehicles arise only because ethical codes prevent divorce lawyers form accepting contingency fees.
Now that I click through, I see that this guy is Canadian. Down here in the states,
Rule 1.8, Current Conflicts:
(f) A lawyer shall not accept compensation for representing a client from one other than the client unless:
(1) the client gives informed consent;
(2) there is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship; and
(3) information relating to representation of a client is protected as required by Rule 1.6.
So I remembered right, we look askance at this kind of thing. The entire question is punted away in subpoint (2), of course, where the lawyer can go ahead and accept third party payment if it seems like a good idea at the time.
Can you bundle them up. divide into tranches and get S&P to rate them?
I agree with unimaginative that expecting any personal or emotional value to flow from a lawsuit is nuts -- the only good thing that ever happens in a (civil) courtroom is that money flows from someone who shouldn't have it to someone who should.
The problem of how a poorer spouse can get access to a courtroom to get financial justice (actually, the problem of how anyone poor can get access to a courtroom) is a serious one -- the 'third-party litigation funding' described sounds shady and probably exploitative. In at least some states (I think in NY, but I really don't know anything about family law here or anyplace else) the richer spouse can be ordered to pay for the poorer spouse's lawyer, which sounds interpersonally ghastly but is a partial solution.
Really, I'd like to take divorces out of the courts and into a state agency. Sit down with a bureaucrat (I like bureaucrats) with authority to make you produce all of your financial records. Make your case without a lawyer. Have the bureaucrat split the assets. You don't like the outcome, there'd be administrative appeal within the agency, and then ultimately to the courts (limited mostly to review of whether the agency determination was insane, rather than refighting everything). I think that would work much better, but I'd also like a rainbow ponycorn with sparkly tailfeathers.
2: The rules of professional conduct apply to attorneys -- they have nothing to say about how a litigant secures financing. Based on the excerpted passage about Balance Point, it appears that the women contract directly with the funders, so the rules wouldn't apply.
Is barratry even still illegal? And is that barratry? It's something like it, I think, although I'd have to go look it up.
If wikipedia's right, I'm wrong that a third-party funding a lawsuit is barratry. I thought it was something, though, with a comically obsolete sounding name.
Champerty it is. I'm sure there are ways around it in most jurisdictions these days, but it's at least questionable.
(I like bureaucrats)
Oh gosh, LB. We think you're swell too.
Clicking around from "barratry" on Wikipedia, I think the more applicable term is "champerty" or "maintenance."
12: You too, of course, but what I do all day is defending bureaucrats, and they generally do good work.
Pwndy pwned.
Really, I'd like to take divorces out of the courts and into a state agency. Sit down with a bureaucrat (I like bureaucrats) with authority to make you produce all of your financial records. Make your case without a lawyer. Have the bureaucrat split the assets. You don't like the outcome, there'd be administrative appeal within the agency, and then ultimately to the courts (limited mostly to review of whether the agency determination was insane, rather than refighting everything).
I like this. In particular I think we could stand to relax our insistence on sticking to precedent, in family law at least - it seems to just make things more and more inequitable, and from what I read here it doesn't keep outcomes from fluctuating wildly based on who the judge is. Just something like "the arbiter must try to adhere to this set of basic principles, and their decision stands unless it's clear that they recklessly discarded one of them."
It sounds like Furlong is working towards talking about some kind of mandatory (or voluntary but heavily-encouraged?) alternative dispute-resolution system -- changing the rules of procedure and evidence for family law cases enough to make self-representation a viable possibility, or to enable representation by advocates who aren't lawyers.
It's not crazy, and my general understanding is that family law in the US (not my own practice area) has been incorporating a lot of ADR procedures in recent years.
Perhaps worth pointing out, though, that the specific problem of at least one woman described in the article is that her husband is refusing to provide information about his finances (i.e., his law practice). If the husband is really withholding that information, it's hard to see how any kind of system is going to yield a fair result without making him produce it.
But existing US ADR systems have problems with resolving disputes about withheld information: often the neutral (mediator or arbitrator) has little or no authority to order the parties to provide information. And neutrals (usually arbitrators) who do have that kind of authority often won't use it, because ordering parties to provide information is just exactly the kind of thing that makes dispute resolution take up a lot of time and money.
Anyway, Furlong doesn't actually talk about ADR in any substantive way, so it may be that's not what he has in mind. And I probably have blinders on this issue, because most legal systems get along without US-court-style discovery procedures. But I do think that this kind of issue means that you see a real tradeoff between the kind of procedural cost-of-justice problems that Furlong is talking about and the substantive problem of actually reaching a just result for a person in a position like the one described in the article.
(On preview: None of this is responsive to LB's point about administrative systems, so the discussion may have moved past me, but I spent a while typing it and I'm posting it anyway.)
It'd need to be a good agency -- I'm thinking of something much more like a tax audit than a judicial proceeding: a wealth audit for both spouses. You could stipulate your way past it, if you could come to an agreement, but the idea would be that investigation into the marital assets would be conducted by a dispassionate professional rather than by lawyers controlled by angry people.
There's a weird thing about divorce for high earners, that so much of the marital wealth can be the human capital wrapped up in the future labor of someone who can be expected to continue to earn a great deal. I can talk myself into thinking that almost any way of dealing with that is transparently unjust, depending on the circumstances.
But existing US ADR systems have problems with resolving disputes about withheld information: often the neutral (mediator or arbitrator) has little or no authority to order the parties to provide information. And neutrals (usually arbitrators) who do have that kind of authority often won't use it, because ordering parties to provide information is just exactly the kind of thing that makes dispute resolution take up a lot of time and money.
Right. ADR, as it currently exists, can be great when the parties are in essentially equal positions of power. When you've got one party that's more sophisticated or richer, it doesn't seem well-suited to leveling the playing field.
Would the agency have the authority to enforce its own production orders through administrative contempt-type penalties, or would it need to apply to a court?
Also, how would you handle a dispute where one party thought the other party wasn't producing everything -- would their angry lawyers (or angry individuals) have standing to go and complain to the agency?
Would the agency have the authority to enforce its own production orders through administrative contempt-type penalties, or would it need to apply to a court?
The former, I'd think, or at least the power to estimate wealth based on insufficient information if the party won't produce: "You won't give us the books for your law-firm? Fine, your income from it is $10M/year." (Estimates to be made as plausible as possible, of course.) You want to prove you have less, make with the documents.
I guess that a dispassionate professional could issue a report on the total finances.
But, not the disposition of those assets.
Are you suggestiong Solomon on the Mount?
I am leery of many mediators bc they act like Solomon on the Mount when they are supposed to be neutral facilitors. Everyone has their opinions on what should happen in a given case. Those opinions shouldnt necessarily be accorded more weight than someone else's opinion. Example: I think shared custody works great. Someone else might not. Who is correct? People often act as if there is some scientific basis for their opinion: "Everyone knows..."
With regard to financing of family law cases, some random thoughts:
1.Without a financial disincentive (lawyer's bill), people will fight forever. This is why nobody wants to take a contested family law case on pro bono.
2. Is there a big difference bt this proposal and using your credit card/your parent's money/borrowing from your friend/hiring a lawyer with a low retainer and then owing your lawyer lots of money?
There's a weird thing about divorce for high earners, that so much of the marital wealth can be the human capital wrapped up in the future labor of someone who can be expected to continue to earn a great deal. I can talk myself into thinking that almost any way of dealing with that is transparently unjust, depending on the circumstances.
A high-earner issue: Typically, the high-earner would have been a high-earner regardless of which specific person they married. On the other hand, the low-earner spouse's economic circumstances often are related to which specific person they married.
Are you suggestiong Solomon on the Mount?
You do this, and I don't, so this is with all deference to your knowledge of how this stuff works in practice, but doesn't the decision of how the assets are to be split come down to a judge being Solomon on the Mount in the end, if the parties don't agree? I was thinking of moving that judicial role into an administrator's hands, who would also act as an auditor/investigator.
24:
Without professionals to assist them? Who will be more persuasive to the administrator? What bias does the administrator have?
Does the administrator have discretion? What standards should govern them?
The result sounds like another layer.
I think that I have mentioned that I believe strongly in the collaborative model which is based on complete transparency with two lawyers to advise the group. http://collaborativepractice.com/
Of course, this still costs money.
I think this is okay based on King Henry I's Coronation Charter, under which people didn't have to directly present their antagonist with a writ but could give it to a bailiff or sheriff or whatever who would take care of it on behalf of the people's justice in general.
Bias is of course an issue for any decisionmaker -- I don't see any a priori reason to think that my imaginary bureaucrats are going to be better or worse than judges on that front (and of course my imaginary agency is never going to happen). What I was thinking of as the main virtue would be that that combining the auditor and decision-maker roles would provide for a decision less dependent (maybe? It'd all depend on how it worked out in practice, and it's never going to happen, so who can tell?) on the better/more-aggressive lawyer's capacity to stonewall.
Back in the real world, the collaborative model sounds like a great idea, but of course both sides have to agree to buy into it.
In my humble opinion based on my area, courts allow for fairly extensive discovery.
The expensive part is stuff like business valuations, auditing of financials, etc.
On the other side of the coin, it is also hard to prove that the lower-earning spouse could be earning more money. So, the stay-at-home spouse with the college degree could probably get out in the work force and make more money than you will ever be able to prove she (or he) could make.
I am leery of many mediators judges bc they act like Solomon on the Mount when they are supposed to be neutral facilitors.
29:
Judges are not supposed to be neutral facilitors.
They are the decision-makers. In mediation, the parties are supposed to be the decision-makers. My issue is when the mediators direct the result.
30: Yeah, LB's proposal sounds more like arbitration to me than mediation.
Or perhaps a neutral forensic financial specialist assigned to every case.
But I read this article and come away with an overwhelming sense of appreciation that there's a lawyer somewhere willing to say these things publicly.
Back to the OP: is this rare? I feel like I hear lawyers say more or less exactly these things publicly all the time. But maybe that's because I'm another lawyer--it's possible these sort of sentiments are being expressed to general audiences less frequently than I realize.
33: I hear lawyers say more or less exactly these things publicly all the time.
Really, all the time? Exactly how many Furlongs-per-fortnight?
It sounds like where LB's proposal winds up with is an agency with about as much power as a judge but many fewer procedural constraints (rules of evidence, procedure, and so forth). Also, judicial review would be minimal (6: "limited mostly to review of whether the agency determination was insane") -- which, to be clear, is the standard model for judicial review of agency action in the US legal system.
It makes me nervous -- it becomes very hard to correct errors. It's the kind of situation where you wind up advising a client going in: "Well, here is our position on the facts and on the law, but mostly the result is going to depend on whether the hearing officer thinks you're a good guy or a bad guy."
I'm not insensitive to the points, though, that (a) family court judges have a lot of power anyway, in the existing system, and (b) this particular set of instincts on my part (must have procedures! to constrain discretion!) and on the part of other people who think like me are arguably a big part of why it costs so much to do anything in the US legal system.
35: This is absolutely true -- you'd be handing over huge amounts of power to an agency without much scope for review, and if the people working for the agency were incompetent or biased, things could get really unfair, really fast. I'd still like to try my idea, because I think the problems with having courts handle divorces are at least of the same magnitude, and possibly worse, but if there were any realistic prospect of it happening I'd start getting very tense about designing procedure.
And as Will says, if you can get the parties to cooperate on handling everything by agreement, that's always the way to go.
I'm not sure such a system would need to be in the executive branch - just make a new section of the courts, perhaps.
Also, cutting the number of lawyers turned out by 5-10 times would go a long way toward delitigiositization.
But proposing a system where you're not able to buy bias? Very iffy and un-American.
38 makes me think there are some similarities to a bankruptcy proceeding. You might be able to borrow some historical lessons learned for the institutional design.
On the other hand, if your process starts by modifying a judicial proceeding to something more streamlined, you are likely going to wind up with something that is more procedurally bulky than if you start from an administrative template and only add procedures as needed.
38, 41: What 41 said, and what I'm really attached to is the idea of basing it on a tax audit -- putting the decision-making authority into the hands of someone who has as unmediated an understanding of the totality of the marital financies as possible. I think it'd be really hard to combine the investigatory and judicial roles if you were starting from a court proceeding.
But this is all silliness.
A practical discussion would be about how to fund representation in the legal system we have.
Some general thoughts:
1) Unimaginitive gets it absolutely right w/r/t the original article.
2) In my own divorce, I was very insistent that mediation and alternative procedures be tried first, in part because of experience with the legal system and in part because lawyers are incredibly expensive, even for fairly well off people. Mediation worked well in my personal case and I would certainly strongly recommend that anyone try it first, although obviously you need to find a good mediator.
3) Third party funding of divorce litigation seems (a) no different than borrowing money to fund legal fees in some other way and (b) in many ways prefereable to the current rule, at least in California, which is basically that the higher earning spouse pays the lawyers for both sides. That gives the lawyer for the lower-earning spouse an incentive to overwork the case, as well as creating a potential conflict between the lower-earning spouse and the attorney (since the legal work is directly eating into the size of the recoverable pot of money). And of course the rule does nothing when even the higher-earning spouse lacks enough to pay for both sides' legal fees.
4) Handling divorce -- and particularly child custody -- through the legal system is horrible, and I favor some form of mandatory ADR, with the court system providing a backstop.
5) Having said (4), I really, really dislike mandatory binding arbitration procedures, which, for reasons Widget says, often are black holes that combine most of the disadvantages of an adversarial proceeding without the procedural protections you get in Court. LB's idea sounds quite awful, unless I'm misunderstanding and it's simply a mandatory facilitated mediation combined with mandatory disclosure, with ultimate recourse to the court system.
(In practice, California currently requires something like that; disclosure of a set number of items is mandatory upon filing and mediation is mandatory in some circumstances, althugh if the mediation fails you can go to court. Both of those facts seem like good aspects of the current system that should be expanded.)
So you are envisioning forcing parties to go through something akin to a tax audit, with binding results (subject to appeal rights), without the benefit of a lawyer? (at least that's how i read 6.3) I think for many people that would be horrifying, and could disadvantage the less-sophisticated spouse even more than the current system.
And if you involved lawyers for both parties, then suddenly I don't see how this ends up being very different from a court proceeding. marginally different (more investigatory power), but i'm not sure you save a lot of money.
44.5: Again, my idea is not going to happen, so discussing it is pointless, but I do agree with you about mandatory binding arbitration, which has most of the bad aspects of litigation and less in the way of safeguards. I was thinking of something that wouldn't be much like an arbitration at all -- not saying that it would be practical to design such a process, it'd be pretty labor intensive. But I can daydream.
Again, my idea is not going to happen, so discussing it is pointless
Mouseover text! Er, but I'm lazy.
Come to think of it, wouldn't this simple change do a lot of good on its own? -- : make it the default that both parties must fully disclose all assets as a precondition for using the court system, instead of all this nonsense about discovery. And maybe create a special judicial-support agency of auditors with IRS data-access.
And as Will says, if you can get the parties to cooperate on handling everything by agreement, that's always the way to go.
The idea about colloborative practice is the legal advice is going to be remarkably similar when the two lawyers and the two clients are in the same room and the lawyers are required to give full, accurate advice without positioning.
It isnt just for touchy-feely-we-all-get-along people.
It is based on the idea that when everyone has the full info and full perspective on the law, they realize that the results are fairly close.
45: You can't, and shouldn't, keep people from hiring advisors -- you could have your accountant or whoever participating in the process. But having a simple procedure, driven by the agency rather than by the parties, and with lawyers not permitted to act as advocates, rather than as advisors, would, I think, work better than our current system. It'd still be a big huge unpleasant deal, of course, but there's no way I can imagine of untangling marital finances where the parties can't come to an agreement that wouldn't be a big huge unpleasant deal.
must fully disclose all assets as a precondition for using the court system
This is, practically speaking, the current rule in California. You have to produce mandatory declarations of disclosure with backup exhibits -- they're a mandatory part of the proceeding, not something one asks for in discovery at the request of one side or another. Of course, one side could hide assets or not comply with the law, but if you get caught there are quite severe penalties.
But having a simple procedure, driven by the agency rather than by the parties, and with lawyers not permitted to act as advocates, rather than as advisors, would, I think, work better than our current system.
There's a model for this in family law, I think. It's called Sharia.
and with lawyers not permitted to act as advocates, rather than as advisors
I'm not sure I understand what this means, but it sounds unworkable.
I'm also good with limb amputation for minor property crimes.
55: It'd mean that parties would be expected to communicate directly with the agency rather than through a lawyer. Get all the advice you want, but show up yourself, and deal directly with the agency.
50 -- My family lawyer, who was great, was a big fan of collaborative family law practice. My ex's attorney wouldn't agree to it, partly (my biased view, obviously) because it would have exposed the fact that he was giving bad advice in order to overbill the file. But something like that as a mandatory first step (or, in the alternative, a lawyer-free mediation) seems like a very good idea.
I don't know if I could buy into that. My wife would kick my butt in a quasi-trial-type adversary proceeding. (Which, admittedly, would probably wind up being in my daughter's interests, but still.)
57:
So the party with more experience advocating for themselves is more likely to achieve the better result.
57: so lawyers are or are not permitted in the proceeding? It sounds like they are not. That's all I was talking about. I never imagined that you were envisioning prohibiting parties from talking to attorneys at all.
Honestly, and with apologies, either collaborative family law practice or mediation with a court as a backstop sound about a billion times better than LB's idea, which seems to be to send people without attorneys before a bureaucrat with unlimited discretion to make decisions on complicated and significant issues. Would you let the same bureaucrat make the child custody orders? Also, it seems unlikely to save substantially on legal fees; only a tiny part of fees are generated from actual face-time representation before a court, and you damn sure better have some good advice before you go in and have your meeting with the bureaucrat.
it would have exposed the fact that he was giving bad advice in order to overbill the file.
Of course, the other possibility is that he was giving accurate advice based on the information that he was being given.
If you were there to provide additional facts, then perhaps his advice would have been different.
Also likely: he was a rat-bastard who deserved to have his ass kicked for being mean to Halford.
the other possibility is that he was giving accurate advice based on the information that he was being given.
Yes, that's possible, although he was also prone to writing letters with legal arguments that were pretty crazy.
Dumb background question, but has the principle of dividing assets in a divorce settled down? Last time I paid any attention we were still split between 'possession of ladybits', with alimony ending on remarriage, and 'implicit wages', trying to pay someone back for the opportunity cost of having raised children/waitressed someone else through med school.
I don't know anything solid, but I'm pretty sure that we haven't settled on anything unless you narrow it down to one state. Federalism's a bitch.
1: Sorry, Stanley! I was just excited because for once I could send in a guest post for a weekday when I would be around to chime in (my office is closed today) and then it turned out I wasn't here until just now anyway.
Unimaginative responds to problem with treating lawsuits as financial investments is that it treats a lawsuit as a means to an end, not an end in itself.
with This is so wrong-headed it's hard to know where to begin. A lawsuit for money damages or equitable distribution is about recovering money, not an end in itself.
Maybe I'm missing something, but the crucial difference is profit. A spouse could legitimately be seeking money damages for child support. An investor is by definition seeking to make a profit.
Perhaps there are times when this ugly combination of incentives nevertheless produces the least-bad result -- if a spouse with no money was bankrolled so he could afford to pursue a divorce case, and was therefore able to secure a divorce settlement that insured his child would have food on the table and proper health insurance, that could be a win even if the process of getting that win meant that some third party was getting a cut of the money.
But from my perspective, there are some obvious competing incentives. For example, it's seems to be in the third party's best interest for there to be some amount of cash settlement. But it might be in the parties' best interest -- and in their child's -- if the "solution" included, I dunno, one spouse being compelled to put the minor child on her health insurance policy.
That could have huge impact on the child's health and well-being, as well as the ability of the other spouse to provide for the child, but is not a cash transaction and would not produce any investment profit for the third party.
(I am only on comment 2! I think I agree with all this collaborative stuff below, but I haven't gotten there yet.)
the opportunity cost of having raised children
This, when combined with the "how do you account for the plausible future earnings of the higher earner" is the justice problem in splitting up marital assets that I find absolutely impenetrable -- I can't figure out how anyone does that, for a long-term marriage with kids and one spouse who devoted significantly more time to unpaid work and less time to career.
1.Without a financial disincentive (lawyer's bill), people will fight forever. This is why nobody wants to take a contested family law case on pro bono.
That may well be true, but it's my experience that lawyers also don't want to take uncontested family law cases on pro bono.
2. Is there a big difference bt this proposal and using your credit card/your parent's money/borrowing from your friend/hiring a lawyer with a low retainer and then owing your lawyer lots of money?
Yes. Because a) your parents or friends are not expecting to make a profit, and b) whatever the downsides of the credit-card debt or lawyer debt (and they are considerable), I am unconvinced that they create any additional incentives to drag things out in hope of a higher cash settlement.
4) Handling divorce -- and particularly child custody -- through the legal system is horrible, and I favor some form of mandatory ADR, with the court system providing a backstop.
I'm generally agreeing with the ideal of collaborative practice as outlined in this thread, but the above point highlights a problem that others noted: That kind of setup can wind up favoring the person who has more experience advocating for him/herself.
I often wonder what kind of social benefit there would be to providing publicly funded family law attorneys, especially for poor people. I can foresee a number of problems it could cause, but it would sure solve a lot of others.
68: An outside investor probably would not involve itself in a case where the recovery would be something other than money. As a contingent fee lawyer, I sometimes decline a case because the plaintiff has no money and wants something that isn't money (e.g. "my job back" or "the mineral rights under my home that the evil people claim they own"), so there's no way for me to get paid.
I don't understantd the distinction between "legitimate damages" and "profit." A lawsuit always seeks legitimate damages. The recovery of the legitimate damages is the profit to the plaintiff from the time and money invested in the lawsuit. If achieving that profit requires the plaintiff to give an oustider a cut, it may still be worthwhile.
Sorry, Stanley!
No need to apologize to me; I'm the one who feels bad for STOMPing a substantive post with fluff. But, then, it's a blog.
Back to the OP: is this rare? I feel like I hear lawyers say more or less exactly these things publicly all the time. But maybe that's because I'm another lawyer--it's possible these sort of sentiments are being expressed to general audiences less frequently than I realize.
Disclosure: All of my (very strong) biases on this topic come from painful personal experience. While all of the experiences are true, I am aware that they may be an unrepresentative sample.
Nevertheless, having worked on many occasions to try to get even one-time informed consultations -- never mind representation -- for people who are poor, disabled, non-English-speaking, crime victims, domestic violence survivors, etc., my overwhelming experience is as follows:
- Lawyers vastly overestimate the number of problems that can be solved with litigation
- Lawyers vastly overestimate non-lawyers' understanding of fundamental aspects of the court system
- Lawyers massively discount the value of their own role in providing accurate legal information to allow non-lawyers to make informed judgments about about the risks and benefits of their possible courses of action
- Lawyers are professionally trained to think in worst-case scenarios
- Lawyers' willingness to acknowledge the shortcomings of the legal system in providing access to poor or marginalized people is frequently absent, most often when said lawyer is being asked to lend his or her expertise to someone who otherwise has no prayer of getting legal assistance.
Some this can be chalked up to class paradigms, as many lawyers come from middle- or UMC backgrounds and genuinely can't conceive of the kinds of barriers that people without their social capital can face. And some of it is doubtless due to lawyers' fear that the straightforward consultation they are being presented with will somehow turn overnight into a seven-headed Hydra of unending litigation that requires a years-long commitment.
Be that as it may, I'm still very inclined to celebrate when a lawyer is brave enough to say this sort of thing publicly.
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The fixation on civility hits a new low. It's like our local reporters are trying to drive me insane.
2nd man sentenced in battle-ax attack
By all accounts, Cody Augustine is polite and respectful.
Original account: Teenager in critical condition after being attacked with battle ax
Cody Augustine is accused of stabbing 17-year-old Justin Ennis 11 to 12 times on July 29. According to police, that was after Augustine's friend, Scott Stapley, hit the teen with a four-bladed medieval battle ax.
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From the link in 74:Police were able to find the suspects because the victim ripped a necklace off one of them. It had the symbol of the Juggalos, a group that follows the rap band Insane Clown Posse.
These were some of the most polite juggalos to ever attempt murder with a comically ornate four bladed battle ax.
68: Isn't that malincentive already there to some degree due to the simple fact that litigation costs a lot of money? Since we're talking about outside sources of funding, we're pretty much by definition not talking about Mr. Moneybags here, so the alternative to a shared-gains setup is borrowing the cash. If one party borrows to pay for a lawyer, they'd still prefer cash as part of the settlement, to pay off the debt, same as in the investment setup.
Of course as 71 points out, there is a selection effect here - the only cases that get help will be the ones likely to produce serious cash. Which is probably more pronounced in the investment setup. But if these are legitimate cases, then it is a net improvement in fairness for some litigants who deserve help to get it, even if the basis by which some get it and others don't is unfair.
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My nomination for Lawyer of the Year:Barack Obama
"People can have philosophical ideas about certain things," President Obama explains. "But, look, I can't conduct diplomacy on open source." He then goes on to add that he has to abide by certain classified information rules or law and if he had released material like Manning did he'd be breaking the law.Now, here is the remark that deserves the most attention: "We're a nation of laws. We don't individually make our decisions about how the laws operate." He adds, "He broke the law." Finally, before removing himself from the conversation, he says Manning "dumped" information and "it wasn't the same thing" as what Daniel Ellsberg did because what Ellsberg leaked "wasn't classified in the same way."
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73: There's a real problem with asking lawyers to give out legal advice -- we've had it pounded into us that giving any kind of advice without full attention and commitment to the client's interest can be malpractice. I do that twitchy "I'm not your lawyer and this isn't legal advice" bit when we're talking about legal stuff here partially to be funny, but partially because I sometimes get pretty close to the line of where I could be exposing myself to liability.
That's not an excuse for why lawyers are less helpful than they could be, but it's a partial explanation of why they react the way they do.
78: Just to be clear, I'm not accosting anyone at cocktail parties here. These are formal requests, following established protocol, often to the lawyer personally but sometimes to the pro bono committee if they work for a large firm.
Eh. I can sometimes get the breathing room to see this as a natural result of the structures we've chosen to create, rather than personal moral failings.
I was reacting to 'one time, informed consultations" -- that'd need to be in some protective structure to not put the lawyer at risk of being responsible for everything that happened to the client in the future. I'm sure it's doable, but it's the kind of thing that we've been trained to be terrified of.
Voluntary pro bono is pretty broken as a solution to representation for poor people. Hiking bar registration fees (tied to income?) and using the take to fund more legal aid would work better, maybe.
Yes, I think IOLTA is genius, but $133M/year doesn't come close to filling the need for low-income legal services.
- Lawyers vastly overestimate the number of problems that can be solved with litigation
However, the number of problems involving litigation that can be solved without lawyers...
- Lawyers vastly overestimate non-lawyers' understanding of fundamental aspects of the court system
- Lawyers massively discount the value of their own role in providing accurate legal information to allow non-lawyers to make informed judgments about about the risks and benefits of their possible courses of action
- Lawyers are professionally trained to think in worst-case scenarios
All good reasons for them.
- Lawyers' willingness to acknowledge the shortcomings of the legal system in providing access to poor or marginalized people is frequently absent, most often when said lawyer is being asked to lend his or her expertise to someone who otherwise has no prayer of getting legal assistance.
Suggestion: rather than some clankywanky bureaucratic solution, what about civil legal aid?
PS: Bob, I used to whine about lawyers all the time back in peachy peacetime '99. Clive Stafford Smith and various JAGs changed my mind.
what about civil legal aid?
Sounds terrific to me. Witt no doubt knows more about this, but the legal aid organizations I've known of here have seemed to be non-profit organizations which I've assumed function in part through government grants (state, local, and/or federal, I don't know), but that kind of funding is inevitably hit-or-miss, the organization is operating on a shoestring, and it may or may not manage to still be around in 5 or 10 years.
I'd love to see something like a formalized civil legal aid division. We need an equivalent of an Access to Justice Act (per the wikipedia link in Alex's comment) here!
The selling point would be that such a service would cut down on frivolous lawsuits and concomitant expenditures which could have been cleared up had people only had access to reliable information about their rights regarding, say, housing, consumer debt and so on.