Occasionally I run across truly fascinating news items in the legal journals; let’s call them “legal bits” for lack of a better term. We try to keep up with the explosion in self-represented litigants and how we’re faring in the courts. Three recent “legal bits” caught my eye.
First up, a New York judge has recused himself in the case of Floyd v. Cosi, a discrimination suit in which a former employee alleged Cosi showed bias against Floyd’s race, age and disability in firing him from the restaurant chain. Floyd is representing himself in the case and had caused Judge Jack Weinstein some concern about fairness. From the New York Law Journal (courtesy of
During a hearing earlier this month on the dismissal motion filed by restaurant chain Cosi in Aikiam Floyd’s racial discrimination case, Weinstein said he asked “leading questions” that prompted Floyd to give testimony showing his claim was not time-barred. While recusing himself in Floyd v. Cosi, 14-cv-3772, Weinstein denied Cosi summary judgment but gave it permission to renew the motion before another judge, after discovery was conducted “under close supervision of the magistrate judge.”
Weinstein said, “While no partiality could be construed in rejecting defendant’s motion for summary judgment based on timeliness, recusal now is desirable to avoid the appearance of partiality by the undersigned judge in future decisions in the case.” … Noting his repeated intercessions, Weinstein said Floyd was “probably not capable of adequately representing himself.”
That’s a tragedy. There’s nothing at all disqualifying about a judge leveling the playing field for a pro se litigant in his or her court. Courts have a legal duty to help pro se litigants wade through the procedural muck, and more judges should take it as seriously as Judge Weinstein.
Secondly, there may soon be new players in the legal profession, or perhaps it’s new licensing for old players. State bar associations enforce the unlicensed practice of law (UPL) statutes in every state. The idea is to keep criminals that never went to law school from fleecing people who desperately need legal advice. Trouble is, the state bars have sometimes used this power to maintain a monopoly on the delivery of legal services, by intimidating and threatening paralegals, document preparers and others with useful knowledge to keep them from competing with lawyers.
But this has kept many people from being able to access the halls of justice at all. There is serious talk at the ABA about testing and certifying “limited license legal technicians” or LLLTs, those paralegals and others with basic legal knowledge who can be trusted to competently assist pro se litigants on minor legal matters. They’ll need an associate’s degree and 3000 hours under a lawyer’s supervision to get certified. With certification, they can legally help people fill out forms and advise them on family law or worker’s compensation claims, and even join them in court in some cases. That’s good news and bad news. On the one hand, pro se litigants may soon have a better shot at getting a fair shot in the courts. On the other, those paralegals and others serving pro se litigants will now have to go through a certification process to do what they’re already doing, which could raise the costs for everyone. Worth keeping an eye on…
Lastly, the Boston Bar Association has made the best argument for civil legal aid programs I’ve seen in awhile. We should fully fund legal aid for better government efficiency! Nearly two-thirds of qualified Massachusetts applicants for legal aid are turned away for lack of funds. That lack of funds is largely due to the drop in interest rates over the last decade, so legal aid programs in Massachusetts and around the country are down 60, 70, even 80%. The resulting glut of unprepared self-represented litigants is clogging the courts, and the injustice of taking their homes and levying wrongful judgments against them puts a drag on the economy. Says Julia Huston, president of the Boston Bar Association:
We need to listen to our judges at the frontlines. They’re telling us that the proper and efficient administration of justice is in jeopardy when we leave so many people to their own devices in our courts. …We need to make the case that ensuring that every American has access to justice is not only a just cause, but a sound investment that is worth our resources. Economists who conducted independent evaluations as part of our Task Force report found that greater funding for legal assistance actually saves taxpayer money and supports the economy.