Kia Franklin

Mind the Justice Gap?

The NYT alerts us that drops in federal interest rates are dwindling already-scarce IOLTA funds, which are used to provide funding for legal aid. (Check out this info on Civil Gideon for more about how IOLTA works). Needless to say, tort "reformers" aren't too upset about this. Nor were they upset when our failing economy dealt its blow to the civil court system. I can comfortably say that tort "reformers" will take advantage of the financial crisis to a) argue that civil justice reforms are too expensive right now and b) argue that tort "reform" will help the economy.

In fact, a proper economic stimulus plan must contemplate how the economy has affected the legal needs of the poor and include measures to address this. Financial stressors have both pushed people into some legal battles and rendered them unable to defend themselves properly. A proper stimulus plan will prioritize meeting these important needs to prevent additional costs that result from improperly resolved legal claims, and to provide a stronger security net to ordinary people.

Hat tip to the WSJ law blog.

Kia Franklin: Author Bio | Other Posts
Posted at 10:48 AM, Jan 20, 2009 in Civil Justice
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You can eliminate the financial concerns for "civil gideon" by making it manditory for attornyes to provide legal care for anyone who presents to their office and hold them accountable for this unreimbursed care. This is how it is for physicians when patients present to the ER.

Posted by: throckmorton | January 20, 2009 2:46 PM

And, don't be tryin' to dump any folks on public legal programs until they have been legally stabilized. That includes bums who have not washed since the Vietnam War Era.

Posted by: Anonymous | January 20, 2009 4:54 PM

throckmorton--that's how it works for ER docs. Plastic surgeons aren't required to do ER work. In the same way, the legal profession has triage professionals--legal aid attorneys. But when they're financially strapped they can only take on what they can take on. Anything more than that could lead to legal malpractice, and I know how you feel about that. It takes RESOURCES to supply the public service of adequate, affordable legal aid.

I do, however, think the private bar should be required to do more pro bono work. Why not?

Posted by: Kia | January 21, 2009 10:27 AM

No. Dr. T is not referring to nice charity work pro bono. He is referring to ruinous fines and civil liabilities if any smelly bum off the street comes into the office of a prestigious law firm, and is not legally stabilized before being referred to charity legal care. Nor is any penalty covered by malpractice insurance, since it is not negligence.

Here apply each element to the prestigious law firm open to the public.

Also, I like the part about being never paid again for the care of any other client in the future.

I would like to hear the lawyer scream, slavery, and have it fall on the deaf ears of a doctor sitting on the bench.

Posted by: Supremacy Claus | January 22, 2009 4:52 AM

It seems appropriate during a recession when the government is attempting to stimulate the economy to point out that the overcrowding of courts could be solved by seating more judges and hiring more clerks to keep up with the increased amount of cases, rather than throwing out cases without regard to their merits and potentially leaving some injured people without recovery. A better-staffed court system could also detect bogus cases and retaliate against lawyers who file them in bad faith - and also groundless motions that needlessly delay the suits already in the courts and keep them from being tried and closed.

Many courts are state courts, and many states can't borrow for economic stimulus, so the federal government should provide the money for the states to expand their court staffs and upgrade their facilities to handle the amount of cases they now have, or (in the case of facilities) expect to have in the next few decades.

IIRC, many existing court buildings were built by the WPA.

Similarly, government economic stimulus money could also go to legal aid programs to hire lawyers to represent people who couldn't have their legal rights enforced otherwise. Then the parties get their legal rights, the lawyers get fairly paid, and businesses patronized by the lawyers get increased profits.

Posted by: Chris | January 22, 2009 11:15 AM


Plastic surgeons do have to take ER call. Even if a surgeon has his or her own surgery center, they must be on staff at a hospital that can accept their patients if there is a problem. As part of this, they must be on staff and therefore must take call. This means that they must take the uninsured who come in to the ER with decubs and burns as well as facial and hand trauma. This is all nicely legislated through CMS.

It is really simple in medicine. You come in to the ER in any hospital and they are required to treat you. IF you care requires a specialist, they must see you and treat you. This is EMTALA and COBRA law. (are you an attorney?)

So, why cant anyone walk into a court house and have their legal affairs taken care of regardless of their ability to pay by the attorneys who practice in that court? Just be like every hospital in the country and have a call list. When they come in, they are legally triaged and the proper attorney is called who must see and assume all responsibility for their legal problems. Make sure that doing it is part of their privaledge of passing the bar and make sure that it is federally mandated and that there are large repercussions if they do not compele their duties such as losing their ability to practice.

Posted by: throckmorton | January 22, 2009 9:34 PM

I am not sure what is meant by the comparison to not refusing a patient who presents to an emergency room. Presenting to an emergency room for life saving or stabilization treatment is not comparable to helping someone with a legal crisis. For example, if a home is in foreclosure, helping that homeowner is extremely complex and may take several years of legal work. Are you suggesting that attorneys be required to perform extensive legal work without compensation? If so, who is going to keep their home out of foreclosure? Also, it is important to keep in mind that big law firms who are in a better financial position to do a lot of pro bono work often will not provide services in all areas. For example, big firms will generally not take a case which would require them to sue a financial sector defendant. They will take a death penalty case or a Guantanamo case but they will not generally represent an elderly victim of mortgage fraud in danger of losing her home.

Posted by: sheila canavan | January 26, 2009 4:04 PM