I attended an inaugural meeting of the Colorado Supreme Court’s new subcommittee of the Unlicensed Practice Committee devoted to considering reforms to law licensing in a vein similar to that of Washington State (perhaps with different details or specialties). Washington State is just in the process of launching a program to allow people to obtain a credential as a licensed legal technician with a specialty limited to a subset of family law after about a year of law school coursework, 3,000 hours of on the job training, passage of a limited practice bar exam, and passage of character and fitness review. Paralegals with ten or more years of relevant experience can test out of the one year of coursework.
It is an idea that I have been kicking around for many years on this blog and elsewhere, and now that it has some chance of going somewhere, I will be doing my best to help inform the subcommittee in ways pertinent to moving this idea forward.
As an initial research step, I have culled a number of posts from this blog that are either related to the idea, or the problem it is trying to solve, or that otherwise can provide useful background, in no particular order.
The immigration judge was presented with uncontested oral evidence and affidavits that a woman speaking fluently in the language of Ethiopia, where she claimed to have grown up, had mixed parentage, with one parent an Eritrean, and the other an Ethiopian. This, she claimed, resulted in violent and cruel government action against her on both sides of the border of the newly divided nation. Despite this evidence, (and the judge didn’t question that she was persecuted) the judgeordered her returned to the country of her torment.The Bureau of Immigration Appeals, as is its custom, summarily affirmed the judges description with essentially no analysis or discussion.The judge said that it wasn’t credible that she was an Ethiopian. Why? She had few official documents in hand to prove her citizenship. (I’d be more skeptical if a refugee did.) Her passport was torn up, although the important pages weren’t missing. A relative’s evidence was presented by affidavit, rather than in person. Was it sloppy immigration attorney lawyering? Probably, yes. The appeal was handled by DU law students who got it right, however, although we don’t know who handled the case at trial. Even when the attorney’s aren’t students, they are often volunteers with little or no experience in the field. But, there aren’t exactly a lot of non-Ethiopians in Denver, speaking fluently in the language of Ethiopia, claiming asylum with affidavits in hand from relatives, under penalty of perjury, who claim to know that her parents are Ethiopians.The 10th Circuit reverses the decision, basically finding that the immigration judge had no basis in the evidence presented to be unthinkably skeptical. The appellate court wasn’t allowed to consider extensive documentation of her nationality presented after the hearing, although they chide the government attorney stating: “We are frankly surprised that the government persists in defending the BIA’s decision, rather than acquiescing in remand in the interest of justice.” (The appellate court also chides the government attorneys in footnote 1 for incompetence in their appellate brief, noting that they admit key facts in one part of their brief, which they deny in their analysis “making it difficult for the Court to determine what facts the government deems to be material and disputed.”
Fifteen per cent of taxi drivers in the US have a degree, up from 1 per cent in 1970. Likewise, 25 per cent of sales clerks are graduates, against 5 per cent in 1970. An astonishing 5 per cent of janitors now have a bachelor’s degree.
Suzanne Shell, most recently in the news for receiving unauthorized practice of law sanctions from the Colorado Supreme Court in connection for her advocacy on behalf of parents facing termination of their parental rights, is back in the legal news again.
I am troubled by the existing system, which tolerates decision making about the future of parent-child relationships based in part upon the incompetent bumbling around in the court systems of economically marginal pro se parents or partially represented parents who are ill equipped to represent themselves.
Poverty itself, standing alone, should be a qualification for welfare, rather than a ground upon which to terminate a parental rights. The kind of functioning in the court system that the Court of Appeals in today’s decision expects of a pro se or only partially represented party to exhibit to avoid procedural defaults and penalties in the system is unrealistically high. The court system is simply not designed to provide meaningful justice in the absence of competent legal representation at every step of the process for all parties. . . .
When Should There Be A Right To Counsel
I do not believe that it is terribly important to have a right to counsel in every case, although in an ideal world this might be the better course. When only money is at stake, a party may be economically justified in not securing legal representation in a losing battle or a case with stakes too small to justify hiring a lawyer. Likewise, when a party is incompetently represented in a case involving only money, a legal malpractice action provides some recourse to a client who is hurt, without imposing conflicting duties upon an opposing private party to exercise restraint in pursuing their case. I also have not a great deal of sympathy in the rare high stakes cases where a big money dispute where someone who can easily afford a lawyer loses because they don’t take the case seriously.
But, there is a constitutional right to representation in termination of parental rights cases such as this one (a large share of which involve economically marginal parents), just as there is in criminal defense cases where one cannot afford a lawyer, which can be squeezed in a suspect way, when it is hard in practice to obtain representation. Expecting someone who makes just $2,000 a year and has an unstable economic life to be able to afford to obtain paid counsel to represent them competently in a parental rights termination case is unrealistic.
Also, there is currently no constitutional right to representation in parental rights and parenting time cases, for example in the context of a divorce, where the parents are too indigent to easily afford counsel, despite the fact that the legal system is ill suited to handling these cases in the absence of counsel and despite the fact that difficult custody issues often fail to coincide with the resources to litigate them properly in the current system, something that is very expensive even for affluent parents.
The American Bar Association agrees with me on this point, and also identifies several other categories (e.g. eligibility for income support benefits) that are similarly problematic.
Other Problems In Custody Cases
Lack of counsel in contested custody cases isn’t the only problem with the court system in custody and parental rights/termination cases, although the analysis above explains why so many divorces (upon which the courts have a monopoly) involve pro se parties despite the high stakes involved for the children and parents involved. While Colorado handles pro se parties in custody matters better than many states, as a result of a heavily in person court facilitation process early in divorce cases and a focus on alternative dispute resolution, it is still fundamentally not designed to be user friendly for people without lawyers.
The lack of guidance provided to those in the system by a vague “best interests of the child” standard plagues the system with uncertainty that provokes litigation. Even if there is complete agreement on the facts in a case, which are often awkward to present to a judge because almost everything is potentially relevant, the law does not provide an answer or even much practical guidance about what a court should do in a case.
The court system’s usual rules are designed to do justice between parties at a leisurely pace based on something in the past that is done and over with based upon relatively clear legal rules, something that works fine in a personal injury case, a criminal case, or a breach of contract case between parties who no longer do business with each other. But, these rules are ill suited to forward looking custody determinations in which the needs of the children are constantly evolving making a once and for all resolution of the matter inpracticable. Courts are bad at making quick decisions and bad at predicting the future.
Sooner or later, I suspect, we are going to come to the conclusion that we need to start over from scratch in the area of custody and parental rights procedure.
While an adverarial process works for most areas of the law, I see the law moving towards a basically inquisitorial process, in which someone like a child and family investigator evalutes the parties and issues in context in the field, rather than a court room, at public expense in addition to advocates for both parents at state expense for the indigent.
Likewise, I see the process moving away from the decree model, where a decree has a measure of finality and post-decree modifications are seen as an exception to be limited, to the probate court guardianship and conservatorship model, in which continuing regular court supervision of the parties is the norm to be applied, with the reviews being basically pro forma in the mill run of cases.
And, I think that ultimately, the vacuous “best interests of the child” standard will be fleshed out with standards serving children’s best interests that provide greater guidance in particular cases, such as interstate moves. For example, one such meta-rule that is evolving is what amounts to a presumption in favor of preserving the pre-separation status quo to the extent feasible, and a whole host of standards of conduct, such as an expectation that a parent not bad mouth the other parent in the presence of a child, is also evolving.
Once upon a time, where you wanted to sell real estate, you handed some soil or twig for the property to the buyer in what was called livery of seizen. Couples kiss, wear traditional costumes, and exchange rings when they marry in front of a crowd. One of the traditional ways to revoke a will (recently litigated in Colorado) is to destroy or deface the physical document (which leads to a number of peculiarities of probate law). Traditionally, wills were read aloud after a death, although that rarely happens these days. Even though it no longer legally matters, it is traditional to seal a contract with a handshake. When sports teams finish a game, win or lose, the players each slap hands saying “good game”, emotionally putting an end to disputes over the details that led to the final result. Churches acknowledge affiliations to their faith with dramatic baptisms in the Christian church and a vividly memorable circumcision ceremony for infant Jewish and (at least in traditional societies) adolescent Muslim boys. Basic trainees in the military, men entering monastic orders, and prison inmates have their hair shorn, and are stripped of almost all of their personal possessions. . . .
For example, one of the classic problems that one sees in modern family law litigation is that one or both of the people who once were married, or at least a loving couple, can’t let go of that relationship. The service of the divorce petition, the signing of the papers, the dryly worded court order ending a marriage and providing for the sharing of the children and property of the marriage, and often a restraining order as well, don’t communicate to the former member of that relationship with adequate emotional force that the relationship is really, once and for all, over. Some people are simply beyond reaching by any means of communications, but a large number of people who go through family law proceedings simply don’t really understand at an emotional and subconscious level what has happened until much later, even if they can parrot the court’s ruling.Perhaps if that message could be conveyed with more visual drama in some universally accepted new ritual, more people who move on, and there would be, as a result, less senseless fighting driven by old emotions instead of new practicalities. The demise of fault based divorce has made the process much more antiseptic for all involved in the process, but have we overdone it to the point of failing to really acknowledge in an emotionally valid way that not just the legal construct of the marriage, but also the emotional reality of the relationship that it approximates, has ended? Shouldn’t the symbolism and ritual that ends of marriage need to be even more powerful and less subtle than the symbolism and ritual that starts one?Adoptions tend to be even more understated, for fear of spooking the relinquishing parents, and not surprisingly, the main complaint that gets litigated in adoptions is that of relinquishing parents who claim they were properly appraised of the gravity of their actions.A classic problem in consumer litigation of all kinds is the not infrequent failure of a debtor or consumer, already overwhelmed by paper and having trouble determining what is most important, to realize that a summons and complaint in a lawsuit is a once and for all speak now or forever hold your peace notice that has profound legal consequences if ignored. This lack of understanding is one of the driver’s of the almost ubiquitous paranoia about ulterior motives and about being cheated by one’s betters found among unsophisticated people who have frequently been on the receiving side of litigation.Perhaps we would do well to imitate the litigation practices of the protocol agents of the advanced civilization in the science fiction book “Jaran” by Kate Elliott, where legal disputes are announced by delivery of a physical baton in person by a courier, and one responds to the allegations at a mandatory in person appearance at the designated place and time, as inefficient as that may be, rather than simply enforcing the duty to appear by entering a default judgment against a party who does not appear (one that is often forgotten until property is seized pursuant to the judgment).I have no empirically evidence to support the theory that more dramatic visual drama in the legal system would make any difference at all. The modern trend has been to strip away formalities, arcane language, pompous court room surroundings, wax seals, fancy ribbons and the like from legal matters. Instead, modern legal proceedings and legal facilities, favor plain English, the bare minimum of in person appearances, contemporary but understated and inoffensive surroundings suited for efficient, processing of business matters, dispenses with wigs and obtuse morning suits, and use very simple seals and acknowledgements – relying on the ability to confirm orders with third party repositories rather than lack of counterfeitability for reliability. Many documents that used to have to be notarized are now simply signed under penalty of perjury with no third party verification of identity or intent.For lots of purposes this trend may be a good one. It demystifies the legal system and makes it more accessible to pro se parties. Much of what courts do is as much administrative business as it is emotionally meaningful decision making. For the most part, people prefer an inexpensive, quick, form driven informal probate process to the traditional succession proceedings of courts of equity will all their pomp and circumstance. And, some parts of the court process, like the delivery of jury verdicts finding someone guilty or not guilty, have managed to hold onto some of the drama that gives them emotional power. But, maybe some of the time, particularly in civil matters that don’t involve business people and may have consequences for people who do not have the same cultural heritage as the lawyers and judges who are running the system, a higher touch, lower tech approach is in order and would make courts more effective. It is certainly a hunch that would be worth exploring with more systematic research.
What professions does Colorado regulate?Most professional and business regulation at the state level involves three industries: (1) health and psychological well being, (2) finance, insurance and real estate, and (3) the construction industry. There are, of course, a few professions that don’t fit any of these categories. The professions and businesses regulated by the Department of Regulatory Agencies are below.Health and Psychological Well BeingProfessionals:Nurses (CNA, LPN, RN) 67,615Barbers/Cosmetologists 45,743Nurse Aides 31,803Physicians/Physicians Assistants 22,737Emergency Medical Technicians 15,986 (Department of Public Health)Dentists/Dental Hygienists 8,952Massage Therapists 7,528Pharmacists 7,385Physical Therapists 5,537Social Workers 4,421Veterinarians 3,998Addiction Counselors 3,080Unlicensed Psychotherapists 2,706*Chiropractors 2,655Respiratory Therapists 2,630Psychologists 2,462Occupational Therapists 2,160Optometrists 1,144Acupuncturists 1,046Athletic Trainers 700 (projected)Marriage and Family Therapists 651Audiologists/Hearing Aid Providers 552Nursing Home Administrators 448Podiatrists 198Midwives 54 (direct entry midwives only, nurse-practitioners classified with nurses)* ironically one really does need a license to be an “unlicensed psychotherapist” and unlicensed psychotherapists in Colorado even have a professional association.Businesses:Barber/Cosmetology Shops and Salons 4,427Pharmacy Businesses 2,247Health Facilities (Department of Public Health)Hospitals (Department of Public Health)Medical Marijuana (Department of Revenue and Department of Public Health)Ground Ambulances (Department of Public Health)Air Ambulances 19 (Department of Public Health)Life Care Institutions 11Finance, Insurance and Real EstateProfessionals:Stockbrokers 154,580Insurance Agents 108,927Real Estate (Agents, Appraisers, Brokers & Sales) 53,251Accountants 16,497Investment Advisor Representatives 9,163Mortgage Brokers 8,729Businesses:Insurance Agencies 10,108Securities Brokerage Firms 2,403Insurance Companies (e.g. Life, Health, Property & Casualty, Title, HMOs) 1,464Accounting Firms 1,204Investment Advisory Firms 705Purchasing Groups (Insurance) 431Banks 107Preneed Contract Sellers (Funeral) 72Credit Unions 52Money Transmitters 40Government Entity Self-Insurance Pools 9Trust Companies 7Saving and Loan Associations 4Construction IndustryProfessionals:Architects/Engineers/Land Surveyors 29,738Plumbers 22,737Electricians 19,308Landscape Architects 681Other Professions and BusinessesProfessionals:Professional Counselors 4,424Boxers 1,194Outfitters, Hunting and Fishing Guides 738Bail Bonding Agents 497Athlete Agents 2Businesses:Tramways 365Funeral Homes and Crematories 349 (projected)Non-DORA RegulationThere are other professional and business licenses regulated at the state level by agencies other than DORA. Some of the more notable are: Attorneys (Judiciary),State Judges (Judiciary),Notaries Public (Secretary of State), Debt Collection Agencies (Attorney General), Payday Lenders (Attorney General),P-12 teachers in public schools (Department of Education), Public school administrators (Department of Education), Charter schools (local school districts and Department of Education),Private schools (Department of Education),Home Schooling parents (Department of Education),Car dealers and sellers (Department of Revenue), Powersports dealers (Department of Revenue),Manufactured home sales (Department of Local Affairs),Retail sales establishments (Department of Revenue),Restaurants (Department of Public Health), Nursery businesses (Agriculture), Pesticide applicators (Agriculture), Kennels (Agriculture), Sale of farm products (Agriculture), Feedlots (Agriculture), Zoos (Department of Natural Resources), River outfitters (Department of Natural Resources), Parks and Exhibitors (Department of Natural Resources), Water treatment plant operators (Department of Public Health), Firms related to air pollution, water pollution and hazardous waste (Department of Public Health),Mines (Department of Revenue and Department of Natural Resources)Fossil Fuel distributors (Department of Revenue)Establishments that serve or sell alcohol (Department of Revenue),Tobacco vendors (Department of Revenue),Racing (Department of Revenue), Bingo and Lotteries (Secretary of State), Casinos (Department of Revenue), Public utilities (including taxi cabs) (PUC and Attorney General), Commercial vehicle drivers 130,000+ (Department of Revenue),Lobbyists (General Assembly), Political campaigns (Secretary of State), Charities (Attorney-General and Secretary of State), and Law enforcement officers (Attorney General). A variety of businesses and professions are regulated at the local level. Some of the more notable include a variety of building trades (such as general contractors), real estate development (via building permits, zoning regulation, etc.), and street vendors.Likewise there are many businesses and professions that are licensed at the federal level. . . .
On the question of lawyers, I’ll grant you that (1) there is a good argument that entities should be able to represent themselves, pro se, via their officers, (2) the “practice of law” which requires a license should be more narrowly and more definitively defined to excludes quite a bit of transactional practice, (3) there should be more kinds of paraprofessionals authorized to act independently in particular legal areas, particularly where there is lots of unmet need that call on only a narrow legal knowledge skill set (e.g. criminal law, immigration and child custody). But, the case for regulating lawyers, who are in a particularly good position to take advantage of clients and the harms done in the unauthorized practice cases that do come up, also make the case for regulation pretty good.
As I previously noted, a very small percentage of Colorado lawyers handle a very large percentage of trials in which lawyers are used at all in Colorado. This continues to be true in light of the 2008 annual report of the Colorado judicial branch.The high volume, predominantly government employed criminal bar handles more than 98% of county court jury trials, and about 80% of district court jury trials (where more serious cases such as felonies and civil disputes over $15,000 are handled). In all, more than 90% of jurors called to serve in Colorado’s state courts serve on criminal or quasi-criminal (e.g. traffic, juvenile delinquency, and parental rights termination) cases.About two-thirds of non-jury cases in county court are also handled by the criminal bar, while more than half of the remaining cases are small claims court cases handled without lawyers (with less than $7,500 in controversy). About 98% of civil cases other than small claims court cases in county court which go to trial (1,374) produce a bench trial rather than a jury trial — typically for less than a full day.There are 19 civil trial per year in county court (jurisdiction up to $15,000 in controvery) and 246 civil jury trials in district court (general jurisdiction) each year in Colorado. Personal injury case make up a majority (at least) of civil jury cases in Colorado. There are 266 bench trials in Colorado district courts each year in civil cases.Most judicial decision making based upon evidence in Colorado District Courts (and the Denver Probate Court) comes in evidentiary hearings not classified as trials. There are about 12,988 final domestic relations hearings, 2,022 guardianship and/or conservativeship hearings, about 178 will, trust and formal probate hearings (only 7 of which are will contests), and about 134 mental health case hearings in Colorado each year. Many of these cases are only nominally contested, however.The courtroom part of American criminal procedure hasn’t changed much for several decades, and is remarkably inexpensive. It wouldn’t be unusual for the combined costs of the prosecutor’s office, the public defender’s office and the court system (but excluding police investigative costs) in a prosecuted felony to be below $200 each, on average, in a typical county. A significant percentage of the total costs for all involved is in capital cases. In many cases, much of the process is oral, and many of the motions that are filed are heavily form driven. As I noted before:
It is a fair guess that the vast majority of criminal cases in Colorado, probably 80% of jury trials and 30% of bench trials [excluding hearings], at least, are handled by roughly 1,000-1,400 criminal lawyers who make up about 5-7% or less (the 20,000 number above is probably an underestimate) of the lawyers licensed to practice in Colorado.
The county court civil process, which mostly handles small claims where lawyers aren’t involved, and collection and evictions cases brought en masse by lawyers specialized in that practice, is also quite quick and efficient, mostly because in a large percentage of cases defendants either fail to appear or settle on the spot in the courtroom. A few hundred more lawyers handle the bulk of the county court civil case load.
Non-criminal cases in district court, in contrast tend to be slow and very expensive, despite the fact that the stakes are often lower than they are in felony criminal cases. The process is somewhat streamlined in domestic cases, but in other civil cases, the rules contemplated a civil jury trial, even if this is highly unlikely.
Trials, Hearings and ADR
There were 1399 jury trials in District Court in Colorado in fiscal year 2010: 1,059 in criminal cases, 306 in civil cases, and 34 in juvenile cases (generally only termination of parental rights cases give rise to a right to a jury trial in juvenile cases). I know from other data that approximately 75% of general jurisdiction civil jury trials are personal injury cases.
There were also 763 bench trials in District Court: 53 in criminal cases, 368 in civil cases, and 342 in juvenile cases (many of which are quasi-criminal juvenile delinquency cases).
There were 13,860 domestic relations hearings in District Court: 13,487 permanent orders hearings in dissolution of marriage cases, 202 legal separation hearings, and 171 invalidity of marriage hearings. Note that almost every dissolution of marriage or legal separation of invalidity of marriage case must be concluded with a hearing (including every case where children are involved) even if the cases are uncontested. So this doesn’t necessary capture the full number of active litigations in these cases.
There were 183 mental health hearings in District Court: 49 for involuntary commitment for alcohol treatment, 78 long term certification hearings, and 56 short term certification hearings.
There were 2,729 probate hearings: 430 for combined conservatorships and guardianships, 614 for conservatorships without guardianships, 1,517 for guardianships without conservatorships, 137 for the formal probate of a will, 11 for will contests, and 20 hearings related to trusts. Many of the conservatorship, guardianship and formal probate cases are not genuinely contested but do require in court testimony to establish the faces beyond mere affidavits.
In County Court in Colorado, in fiscal year 2010, there were 1,321 jury trials: 821 in misdemeanor cases, 483 in traffic cases, and 17 in civil cases.
In County Court there were 4885 bench trials: 275 in misdemeanor cases, 176 in traffic cases, 1,295 in civil cases other than small claims cases, and 3,139 in small claims cases. There were also 9,053 final hearings in infraction cases.
These figures, naturally, omit, federal court trials and hearings, and hearings in administrative courts (e.g. DMV license revocation hearings). This list also omits parole revocation hearings and many hearings that aren’t the moral equivalent of a final bench trial in a case (e.g. scheduling hearings, motion hearings, temporary orders hearings, contempt hearings, etc.).
Compared To Case Loads
District Court Civil
There were 116,346 civil cases filed in District Court in Colorado in fiscal year 2010, that produced 306 jury trials and 368 bench trials, but not all of those filings are created equal.
Rule 120 hearings filings (a summary hearing, often uncontested and dispensed with after filing for lack of objection, in the non-judicial mortgage foreclosure process) accounted for 39,404 of those cases. The bulk of of the non-judicial foreclosure process is handled by the executive branch public trustee’s office, whose duties are ministerial and comparable to those of a sheriff enforcement a judgment rather than by a court imposing one. The court in a rule 120 hearing addressly solely the question of the existence of default justifying foreclosure (in all but rare cases due to non-payment of amounts due on a promissory note), not damages.
Distaint warrant filings (state tax lien filings) accounted for another 45,528 filings and generally don’t produce a hearing. A distaint warrant is roughly equivalent proceedurally to the administrative registration of a judgment obtained in another state and does not require proof of the merits before a claim can enforced against property.
These case make up 73% of the district court civil docket, but have a comparatively trivial impact on the court’s work load. The 578 foreign judgment filings, 322 out of state subpeonas and 278 name change petitions are also almost purely administrative matters that do not greatly burden the court.
There were 30,236 cases of other types on the District Court civil docket in the state.
About 5,809 are claims that fit in the heartland of tort law: cases involving personal injuries including worker’s compensation cases that end up in court) and wrongful deaths, breach of warranty, public nuisance, sexual harassment cases, fraud cases and malpractice cases (of all kinds) as well as motions to approve transfers of structured settlements. These cases make up a greatly disproportionate share of civil jury trials in District Court with about one in thirty-three of them actually proceeding to a jury trial
About 3,527 involve judicial efforts to establish title to or possession of specific pieces of property often in connnection with the collection of a debt. A big portion of the remainder of the cases, 13,165 involve contractual disputes or rights in real estate or other property. The number of jury and bench trials in cases such as these greatly understates the number of actual controversies resolve by the court process, because many “paperwork intensive” cases can be resolved by judges on the merits, or in a manner that makes a determination on the merits largely a foregone conclusion, in motion practice prior to trial.
Many cases involve judicial review of, or action collateral to that of other decision makers: There were 722 appeals from municipal or county courts and 72 cases to confirm arbitration awards. There were 3,820 cases are to seal records or seek habeas corpus relief that is generallly collateral to a criminal case. There were 5 public utility cases, 236 cases reviewing acts by local governments and by government officials, and 31 special district cases. Note also that appeals of municipal or county court cases classified as civil in district court, appear to include cases where the underlying matter appealed from would be a traffic or criminal case, and that it is possible to appeal such cases even in many cases when guilt is not disputed (and hence there was no trial) if there is an alleged error regarding the sentence. The number of civil cases appealed to District Court from county court or a municipal court is probably closer to one or two hundred.
This leaves 2,849 other kinds of cases on the docket. They include: 470 declaratory judgment cases, 583 injunctive relief cases, 1,484 cases classified simply as “other”, 29 restraining order cases, and 334 contempt of court cases.
District Court Criminal
There were 36,993 criminal cases in District Court that were resolved with 1,059 jury trials and 53 bench trials (with the balance being resolved by plea bargain or dismissed prior to trial).
There were 12,189 probate filings in Colorado in fiscal year 2010.
Of these, 5,600 were for the informal probate of a will, 1651 were for informal probate in an intestate estate, 425 were for the formal probate of a will, 225 were for formal probate in an intestate estate, 18 involved appointment of a special administrator where the probate or determination of intestacy was informal, 27 involved the appointment of a special administrator following a formal probate proceeding, 78 were small estates, 103 involved a determination of an heirship, 231 were trust cases, 93 were public administrator statements, and 149 involved “estates.” All of these cases combined produced 137 hearings for the formal probate of a will (out of 452 such cases), there were 11 hearings for will contests (out of roughly 6,070+ wills presented for probate), and 20 hearings related to trusts (out of 231 trust cases). Less than two wills presented for probate in a thousand gave rise to a genuine will contest that must be resolved in a hearing in 2010 in the entire state of Colorado.
Denver’s Probate Court has only a couple of dozen contested will hearings a decade. In 2010, Denver’s Probate judge and her magistrate handled held 342 guardianships and/or conservatorship hearings, 3 contested will hearings, 14 formal probate hearings, and 7 trust hearings. Thus, there were 6 or 7 guardianship or conservativeship hearings in a typical week, and there was two hearing related to the probate of a will or to trusts every month. In addition, official statistics do not reflect, but there probably were, proceedural hearings, hearings on creditor’s claims, and hearings related to accountings in probate and guardianship and conservatorship estates.
Of the 8,220 decedents estates that were handled by the courts in Colorado in any capacity in fiscal year 2010, only 45 (about half of one percent) involved the appointment of a special administrator which gives rise to the kind of close court oversight of the estate that is routine in many states such as Florida, New York and Ohio. Slightly more than 90% of primary decedents estates that had any court involvement in Colorado were handled administratively and approved as a matter of course by the Probate Registrar in the clerk of the court’s office, rather than by a judge, on the basis of a simple court form. Other parts of the probate docket were also purely administrative and required little or no judicial intervention: 592 were trust registrations, 36 were will transfers (where a will has been lodged and is moved to a new court), 4 were registrations of foreign orders, 449 were ancillary proceedings to a probate elsewhere domesticating a foreign appointment as personal representative, and 1 was a disclaimer filing.
In contrast, there were 192 adult conservatorships, 378 combined conservatorship and guardianship proceedings, 227 conservatorships for a minor, 668 adult guardianships, 560 guardianships of minors, 26 involved approving single fiduciary transactions, and 374 were personal injury settlement approvals. These produced 430 hearings for combined conservatorships and guardianships, 614 hearings for conservatorships without guardianships, 1,517 hearings for guardianships without conservatorships. Thus, almost every guardianship and conservatorship case produces a hearing and some more then one. In most, the key issues are determining the competency of the adult in question (if the case concerns an adult), and determining if the person seeking to be appointed as guardian or conservator is the right person to do so. Frequently, only one of these questsion, or neither of these questions, is at issue.
County Court Civil
County courts in Colorado in civil cases in 2010 had 1,295 in civil cases other than small claims cases and 17 civil jury trials.
This comes from 148,425 money claims, 42,689 eviction cases, 531 cases to repossess personal property, 13,257 restraining order cases, 1,496 name change petitions, 27 purely administrative registrations of foreign judgments, and 529 cases classified as “other.” The vast majority of these cases are low stakes cases brough by collections attorneys for businesses in the business of lending money and by professional landlords. Less than 1% of civil cases in county court go to trial and only about 1.2% of trials are jury trials. This is particularly notable given the fact that county court procedure has little or no pre-trial dispositive motion practice. The vast majority of cases either produce default judgments or are resolved in a pre-trial settlement (usually reach in person in the court room at an initial appearance date or, much less frequently, immediately prior to a scheduled trial).
Court Sponsored Mediation
The courts also sponsor mediation (or its close cousins, excluding arbitration) through its ADR programs. There were 7,160 such cases in Colorado in the fiscal year 2010: 5,476 in domestic relations cases, 410 in juvenile dependency and neglect cases, 200 in child support enforcement cases, 172 in juvenile delinquency cases, 8 in probate cases, 283 in district court civil cases, 130 in criminal cases, 435 in county court civil cases, 36 in small claims cases, and 10 in restraining order cases. While court affiliated domestic relations ADR is offered in all judicial districts, other forms are offered only in some judicial districts.
For example, the Fourth Judicial District (El Paso and Teller Counties) is the only one with court affiliated, formally recognized ADR programs for criminal cases and restraining order cases. It also accounts for just under half of the dependency and neglect ADR cases (with all but ten of the rest being in Denver), and 57% of the county court civil ADR cases. All but 7 of the small claims ARD cases are in the 11th Judicial District (Chaffee, Custer, Fremont and Park counties). All but eight of the child support enforcement cases happen in one of four judicial districts in the Denver metro area (the 2nd, 17th, 18th and 19th judicial districts). Most court affiliated ADR programs in Colorado in non-domestic relations cases are effectively pilot programs.
8. Higher educational degrees in many fields are an excessively time consuming and expensive de facto required credential for entering many professions in which the kind of information used by colleges and universities to admit new students accounts for substantially all of the economic value added associated with the degree in the occupations that student ultimately pursued that is inferior to the benefit that would have accrued from starting in that profession at a younger date. In particular, mechanisms should be developed to encourage occupations where higher education is used as a signal of intellectual capacity but the occupation itself requires little formal academic training, such as journalism and many forms of direct and middle management, for example, by encouraging some form of graduation with distinction from high school as an alternative credential.
9. Excessive credentialism is particularly harmful to women who plan on spending some time out of the workforce to have children and be stay at home parents to those children, because accentuates conflicts between biological fertility clocks and the time needed to establish oneself in a career, and because interrupting one’s education to start a family makes it much harder to continue to pursue higher education.
10. Excessive credentialism drives up the cost of professional services across the board for consumers by creating a barrier to entry into professions that have excessive credential requirements and by creating an addition cost that must be recovered by members of those professions.
22. There is an economic need for legal professionals who are less expensive than today’s lawyers who could have a narrower field of practice in imitation of independent medical professionals such as pharmacists, nurse practioners, emergency medical technicians, and independently operating physician’s assistants. Criminal law, child custody, and immigration law are among the areas of law that would be particularly well suited to the establishment of these kind of allied legal professions.
If you have an LSAT score of 145 or less, you have a very dim chance of graduating from law school and then passing a state bar exam. An LSAT score of 145 is roughly equivalent to an IQ of 117, a bit more than one standard deviation above average, and roughly average for a college graduate (roughly the 86th percentile of the general population).An LSAT score of 165, which would be more typical of a law student who passes the bar exam, corresponds to an IQ of 133, which is a little above the 98th percentile necessary to qualify for MENSA membership, and is about two standard deviations above average. Law students at top law schools and law students at the top of their classes on law review and graduating with honors tend to have still higher IQs (usually in the 99th percentile).
The Feminist Argument For Undergraduate Legal Education
Women make up 60% of law school graduates, appropriately because there are significantly more women than men who are extremely high performing in verbal and writing ability pertinent to the practice of law (Wai 2010). But only about 17% of equity partners in large law firms are women (citing Wittenberg-Cox 2014). The percentage of women at each intermediate step in the large law firm lawyer career path declines. Women have made up about 45% or more of law school graduates for more than thirty years, so the pipeline arguments are exhausted.The reason for this is really not a mystery. Men who marry and have children who work at large law firms and have what it takes to advance on that career ladder continue to devote “Big Job” class time commitments of sixty hours a week or more to their jobs. Women who marry and have children who work at large law firms and are capable of doing the work necessary to advance on that career ladder take time off for a number of years while they have young children if they can and pay a punishing economic price for doing so for the remainder of their careers and in terms of job advancement.In the ordinary seven years of higher education needed to obtain a law degree, a typical newly admitted to the bar attorney is 25 or 26 years old. Women who have kids before completing graduate school are much more likely not to earn their degrees at all and almost never get into the large law firm career track. Further, the creme of the crop of law school graduates who go onto be partners at large law firms, are also often expected to spend a year or two as judicial branch law clerks prior to entering private law firm associates as a sort of final on the job training process for the best and the brightest that provides insights in future trial practice.Promotion at a large law firm from associate attorneys to “of counsel” or “non-equity partner”, which are the next steps up in the large law firm career ladder, typically takes seven to eight years as an associate and then “senior associate” attorney in that firm working sixty to eighty hours a week. This puts a would be non-equity partner in a law firm at 32 to 35 years old. . . .
It is almost impossible to commit the relentless long hours necessary to be on partner track at a large law firm to an associate attorney’s job if you are pregnant and then give birth to a couple of kids spaced a few years apart. This is particularly true if you want to breast feed for at least the medically recommended lengths of time (about twelve months) and to not wish to feel like you are being a terrible mother. Taking six months to a few years off immediately after being promoted to “Of Counsel” or “Non-equity partner” is likewise not a recipe for keeping your job in a large law firm, not matter what your reasons may be.This leaves a woman who wants to have children without fertility treatments and other biological clock problems by having children before reaching advanced material age who is otherwise perfect law partner material with a window of three years or less to have kids while still securely reaching the penultimate step in the career ladder as “non-equity partner”, which is pretty much the lowest perch from which you can return to the firm after an extended leave of absence and have any hope of ever becoming an equity partner in a large law firm. Indeed, many women with an aptitude for law become paralegals or legal secretaries rather than lawyers because the earlier start is friendlier to their aspirations and desires to be parents at a reasonably young age while still having time to establish a meaningful career that they can return to without undue penalty once all of their children are ready to go to preschool.Making law and undergraduate degree and disregarding the tradition of judicial clerkships for top law school grads seeking to become partners in private law firms turns a zero to three year window into a four or five year window, and maybe even a six year window to have children while having some hope of eventually becoming a partner if a woman takes enough AP classes, IB exams, and local college courses while in high school to finish an undergraduate degree in three years rather than four Indeed, the addition three to five years in this window also makes it much more feasible for women who want to have children to make it all of the way to equity partner in a law firm before doing so. And, holding onto the economic rewards of your career following an interruption in your working life for a few years is much easier for someone who has attained the status of equity partner than it is for anyone with a less senior position in a law firm.If the biological clock theory advanced here is correct, it is fair to estimate that a shift of legal education from a graduate degree to an undergraduate degree would roughly double the number of women who become equity partners in large law firms.
There is overwhelming empirical evidence to show that the cost of higher education results in much lower levels of college attendance and completion for poor students with given test scores and grades, than for more affluent students. The most academically talented poor students are only about as likely to earn a college degree as the least academically talented affluent student.Cutting three years and about $150,000+ of education costs (in the form of student loan debt for most poor, working class, and middle class law students) off the investment in human capital necessary to become an attorney dramatically expands access to the profession for students from less affluent families.Put another way, given a choice between a 26 year old associate attorney applicant with one year of experience, and one with four years of experience, almost all employers would find the latter more valuable, and the change would make the lifetime earnings of all attorneys’ net of education costs substantially higher.In another related point, lower levels of student debt make it more viable for law school graduates to pursue governmental or public interest law careers out of law school, rather than being debt driven to pursue the position with the highest possible starting salary.The Comparative Argument
The United States is exceptional in making a pre-professional law degree a graduate degree rather than an undergraduate degree. Almost every other country in the world that has higher education requirements for becoming lawyers, in countries in the English common law tradition and in countries with the European civil law tradition alike, make a law degree an undergraduate degree. This is solid evidence that there would be few if any detrimental effects to making a law degree in the United States and undergraduate degree rather than a graduate degree. There is really nothing radical about making legal education an undergraduate enterprise except for institutional inertia.A Footnote Related To Legal Education In Less Developed Economies
Even with both a typically four year bachelor’s degree and a three year professional degree as well as a bar exam as pre-requisites, the American economy manages to have enough resources to provide a legal education to almost every law school applicant who is capable of passing a state bar exam and is astute enough in applying to safety schools to apply to a school with sufficiently lenient admission law school admission standards. (Of course, admissions standards at some law schools are even lower if you are politically connected).Likewise, very low levels of full time law degree required employment for recent law school graduates(particularly those with relative poor academic credentials at less prestigious law schools), unprecedented associate attorney layoffs during the financial crisis that are still continuing at low levels into 2014 (also here perhaps with actually quite significant layoffs in 2014) low pay for significant subsets of entry level lawyers (e.g. Massachusetts deputy district attorneys make on average less per year than court house janitors and public defenders there (who on average have more experience) make only slightly more), all tend to support the conclusion that the higher education system is not under-producing new lawyers at the margins in the United States.In most less developed economies, this is not the case. High school graduates are rare and college graduates are even more scarce, while many people in these countries are not just functionally illiterate in the official language of the country, but are totally illiterate in their native language. In these circumstances, allowing people to enter the full fledged practice of law with a year or two of post-secondary training in law, may make a great deal of sense. It is better to have a sufficient cadre of lawyers with some formal legal training to administer of functional legal system, than to have a much smaller cadre of lawyers trained to developed country standards whose numbers of completely inadequate to operate a functioning legal system. The former may have more mistakes of law than would be optimal, but the latter will be effectively a system with lawless anarchy because the system can’t handle the demands it needs to serve.Also, in a less developed economy setting, it is probably more sensible to categorically limit the jurisdiction of courts that conduct Western style legal proceedings to a subset of the total judicial system docket that the available supply of lawyers can manage and to choose the cases for the subset of the total that are most critical to have handled by well trained legal professionals (e.g. serious felonies and real estate disputes), while reserving minor cases of the sort handled in courts of limited jurisdiction in the United States (e.g. misdemeanors and minor debt collection and residential eviction cases) to traditional dispute resolution processes or lay adjudication of some other type. It may also make sense, if the supply of formally trained lawyers is small, to deploy the lion’s share of formally trained lawyers as judges to maximize the accuracy of ultimate decision making based upon the cases presented to them, and to dispense with any formal licensing process for people assisting litigants in this process.
Most people assume that lawsuits, apart from those in small claims court, are primarily both brought and defended by lawyers. The reality, however, is that a very large share of all cases are handled without lawyers. Consider the following statistics from the 2010 fiscal year in Colorado’s state courts:
In 60% of divorce cases, neither husband nor wife has a lawyer – this is the case type in which it is most common for neither party to be represented by counsel that generally involves meaningful adversarial litigation activity beyond a partial day one time hearing (apart from the small claims court division of county court limited to money claims of up to $7,500, which are lawyerless by design; about 12,000 of these cases are filed each year and about one in five are resolved through a brief bench trial with no pre-trial proceedings). At least one of the parties in a divorce is not represented by a lawyer in an even larger share of all divorce cases in Colorado.
There were no lawyers in 73% of adoption cases, and in 65% of juvenile relinquishment cases, both of which are frequently uncontested, form driven and involved fairly small raw numbers of cases. There were no lawyers in 56% of district court civil case (although I have a suspicion that this may include all of the “distaint warrant” cases, which are basically state tax lien filings prepared by the State of Colorado, that don’t involve meaningful court proceedings since the due process takes place within the Colorado Department of Revenue process). About 50% of all district court civil cases are distaint warrants (which rarely give rise to any hearing) and another 26% are approvals of non-judicial foreclosures in brief, unappealable hearings, usually by default and when held usually involving unrepresented defendants at which the non-payment of a mortgage payment is typically the only issue which may be considered. Fewer than half a dozen law firms handle the vast majority of non-judicial foreclosures statewide in Colorado.
Defendants are not represented by lawyers in 64% of misdemeanor criminal cases, although describing these cases initiated by the District Attorney’s office as lawyerless is deceptive, and the lack of representation is related in part to an unconstitutional Colorado practice of denying misdemeanor defendants access to a public defender prior to considering a plea bargain offer, that will probably be discontinued by court order in the near future.
A very large share of all civil cases brought in county court (mostly consumer debt collection and residential eviction actions), about 200,000 a year in round numbers statewide in Colorado, are brought by a collections attorney (often en masse with the pleadings prepared primarily by collections officers and paralegals), but give rise to a default judgment or result in an answer being filed by an unrepresented defendant. A typical county court case alleged that the defendant has missed one or more credit card or rent payments.
Justice Kennedy recently spoke on the issue (Hat tip to SCOTUS Blog) to the American Bar Association, as it presented the most powerful judge in America (because he is the swing vote on the highest court) an award.
“In the developing world, there are not enough lawyers, there are not enough paralegals, there are not enough college-educated persons to make such a system work,” Kennedy told delegates . . . In some countries, he said, half to three-quarters of the population works in the “shadow sector,” with no licenses or legal regulation, and half the people have no official birth records. Lawyers can’t merely advise millions of young people in those nations to wait decades while the groundwork for a legal structure is established, Kennedy said.
But he said lawyers are well-suited to educate and recruit those young people to promote law by fighting lawlessness – families in Asia that sell their young daughters into the sex trade, an African nation that charges fees to women who want rape complaints investigated, nations that hold prisoners incommunicado and without charges for a decade, “the ongoing and looming greater disaster in Darfur.”
Lawyers should tell their listeners, “Here is a cause for your passion and your anger and your youth and your energy,” Kennedy said. And he said U.S. lawyers must also realize that “the rule of law cannot stand here unless you address those problems in other nations.”
The issue he charged American lawyers with is not an easy one. How do you build a legal system with few or no lawyers?
The most recent serious effort to try to do so has been in China, with decidely mixed results. But, the absence of formal legal education doesn’t mean that a society has to be without lawyers all together.
The Washington Post recently highlighted the remarkable authority that a “Children’s Parliament”, run, as the name suggests, by children, in Goma, Congo has developed (as modest as it is) amidst a failed overall legal system, largely on the strength of the fact that it is not corrupt and makes a good faith effort to apply the law to the facts, despite the fact that its opinions are not themselves binding.
Prior to 1890, when New Hampshire adopted one, there was no such thing as a bar exam; every state, but one, had one by 1915. A college education wasn’t a prerequiste to law school in the United States until about 1900 (and is still not in most of the world). When Yale Law School was founded in 1843, there were only eight law schools in the country and many lawyers learned the profession in another lawyer’s office rather than in a law school. From 1779 to 1817, there was only one law school in the United States (at the College of William and Mary). Harvard Law School, founded in 1817, was the second.Also, as far removed from actual practice as American law schools are, they are far closer than their civil law cousins, who lean on bar exam preparation courses even more heavily to teach students substantive law than do American law schools.Early Americans were actually far more litigious than we are today, but most of the cases would have been considered small claims and were dealt with in the style of a modern small claims court. For every day legal purposes, the “Justice of the Peace” concept, in which lay persons met out justice in minor civil and criminal cases, are considered a pretty abysmal failure compared to status quo alternatives in places like New York State, where professional judges with graduate degrees in law in well organized state courts of record do a far better job. But, compared to a system like that of Liberia, which has only 22 judges (about a tenth of the number of judges per capita as Colorado), it looks attractive.Both the civil law system, and the British, distinguish between a core group of litigators, and other lawyers with less formal credentials, reducing the size of the core group — although the civil law system achieves this partially by having far more judges than common law systems do, per capita, and by entrusting much transactional legal work to the notary public’s office.The Roman legal system, one of the earliest, referred essentially all private law cases to rent-a-judges paid by the parties and largely independent of a formal court system, much like modern day arbitrators, another attractive option in a country with a weak state.English law has its roots in the Norman Conquest, after which the occupying Army, itself in a military hierachy, divided up the conquered territory among Army officers, creating the foundations of the modern aristocracy, and granted each aristocrat the authority to met out justice in his own territory. Originally, this was mostly done directly by nobles hearing disputes between his subjects, but, eventually, this task became specialized and largely delegated to skilled specialist servants of the local ruler. The early Islamic empire, which fused religious and political authority followed a similar pattern, allocating the power to mete out justice largely to local rulers who often acted on the advice of educated servants.Justice by general purpose local political leaders is another attractive alternative to bureacratic lawyer based justice, which, while it has its flaws, also offers a desirable alternative to the anarchy that prevails in much of the world today.The notion that law without lawyers is a desirable thing is mostly a hoary myth that ignores the downside of that approach. But, as Justice Kennedy appropriately points out, the Rule of Law is a necessity that the much of the world can’t afford to conduct American style.
A while back I noted (and I will update this post with the reference if I find it), a Denver study comparing criminal law outcomes between defendants represented by public defenders and those represented by private attorneys.In cases that went to trial they did equally well, but private attorneys fared better during plea negotiations. It isn’t clear if this was due to the nature of the cases (with the marginal good cases seeking private counsel) or if this was due to better lawyering.A counterpoint to this is a recent study on attorney effectiveness in tax court, which compared settlement and trial outcomes in pro se cases to those in lawyered cases.
Interestingly, the study found that the presence of an attorney for the taxpayer significantly improved the taxpayer’s financial outcome in tried cases, an effect that increased with the experience of the attorney. No such effect existed in settled cases. Although the latter result initially is surprising, it highlights the paramount importance of procedural expertise in formal trial proceedings, as opposed to negotiations with the opposing party. The study also found that the presence of an attorney for the taxpayer did not affect time elapsed to trial or settlement. Thus, the study found that taxpayers’ attorneys, who generally are paid by the hour, neither prolonged disputes nor expedited their resolution but did significantly improve the financial outcomes of the cases they tried.
Thus, in tax, lawyers help at trial, but not in the civil equivalent of a plea bargain. This may indicate that having no lawyer at all, as opposed to a different kind of lawyer does matter at trial, and that the I.R.S. is considerably better at enforcing low level uniformity and discipline on its trial lawyers than most district attorneys’ offices.
California has adopted a law providing legal representation at state expense in certain non-criminal family law, eviction and foreclosure suits. Previously, publicly appointed counsel was available only in criminal and termination of parental rights cases, and in rare cases where courts appoint counsel so that a position can be properly represented (often in appellate cases).I’ve argued for something similar in the past, particularly in custody cases where the interest of the parties is significant, but the parties may all be indigent. The representation will be funded through court costs.Those who think that it is more expensive to hire lawyers in these cases than to let the parties fumble though the court process should look at the tangles these cases routinely produe and then think again.
* We need to develop more middle ground in our economy and social class system between winner-take-all successes and those who are just getting by; to invigorate the middle class.
We . . . have a lot of valueable legal work that isn’t done, or is done by overworked and underpaid idealists, because it is hard to make pay. This includes a lot of family law in low asset/low income households, a lot of termination of parental rights litigation, a lot of criminal defense work for moderate to low income individuals, representation of consumer defendants in debt collection and eviction and foreclosure cases, a fair amount of probate litigation in low asset estates, and immigration law work in areas other than employer visas. Lawyers with seven years of post-high school education are very expensive ways to meet the public need to counsel and advocacy in these areas, but many individuals who are involved in these kinds of disputes aren’t qualified to represent themselves competently. If independent specialized paraprofessionals who could just hand child custody cases, or just handle criminal defense work, or just handle immigration work could do these kind of cases with an associates or undergraduate pre-professional degree, rather than a law degree, unmet legal needs could be filled in an affordable way that is more competent than the status quo without really impacting the market for existing lawyers much, and a lot of middle class jobs would be created in the process. In some cases, the most sensible way to handle these cases would be the way we handle most criminal cases – with their services provided by a government agency with professional employees on payroll, but this wouldn’t have to be the case.
This has happened somewhat in the area of tax law, where certified financial planners and certified public accountants, tax preparers, and enrolled agents before the IRS fill the gap between what people need and what they can afford that lawyers cannot bridge. In the area of bankruptcy, in theory, independent paraprofessionals are mere scrivners, but in practice, they subtly provide more guidance to bankruptcy petitioners than their formal duties suggest. There is also a very small niche conceirge/personal assistant niche of people who help people with personal consumer disputes sometimes formalized as a “health care advocate” when it involves medical bills.