I got some really good comments on my earlier post about the Cleveland lawyers who went after the parents who successfully represented their son in a claim against the school district. I focused on the fact that, usually, the child's interest is indistinguishable from the parents' interest, making it appropriate in most cases for the parent to do for the child what the parent would do for himself — and, in this case, it was to proceed without a lawyer. Comments to the contrary were good, and I don't necessarily disagree with them.
I guess the larger issue in my mind, which I didn't articulate, is the monopoly lawyers have given themselves over the legal system. The ostensible reason is the same one the Bar representative stated in the article I quoted from in my earlier post: namely, lawyers do it better, and poor little lay people can't be trusted in the big bad courts. This is false, at least to the first part of the statement, which assumes that lawyers are competent. In fact, that is often not the case.
In my many years kicking around the legal system, I have known lawyers (all from reputable schools, all of whom passed their respective state bars) who were obsessive compulsive, or were cokeheads, or were alcoholics, or were utterly corrupt, or were pathologically lazy, or were complete idiots — and all of whom could not compare to even the most average competent legal assistant. I mention legal assistants because lawyers have been especially vicious in going after those legal assistants who worked in practice areas where 99% of the practice is filling out forms, and who realized that they could offer customers a "form filling out service" that bypassed the lawyer. Whew! Talk about all Hell breaking loose.
The fact is, lawyers have created a monopoly based on the fiction that they are always a wonderful choice. A real marketplace would be based on information. Mr. A is a graduate of a top law school, passed the bar, and works for a huge law firm. He's very expensive. Mr. B is an English major who spent 15 years at a huge law firm and specialized in filling out forms to evict non-paying tenants. He will help you fill out the forms, and you can represent yourself in Court — if that's what you want to do. Filling out eviction forms is all Mr. B knows, but he knows it incredibly well (which is not true for most lawyers). Mr. B charges half what Mr. A charges. Now you know the facts; you, the informed consumer, get to make the decision.
By the way, my choice of profession for Mr. B is not random. Unlawful detainer (as we lawyers call the practice of evicting tenants) is, in California, a stunningly rule-based legal area. You have to fill out and serve your eviction notice perfectly. Once that phase is completed, if the tenant remains, you have to fill out your Court forms perfectly. If everything is done perfectly, the tenant pretty much has to go. However, because this is such a summary procedure, one itsy-bitsy, normally insignificant mistake can derail the whole thing. A legal assistant who has spent 15 years preparing and serving these forms is infinitely more likely to succeed than a well-educated lawyer who has never done this procedure before (but who will charge as if he did).
Another area where cheap alternatives to pricey (and sometimes incompetent lawyers) would be a good thing comes in the area of setting up business relationships. That is, two people want to create a partnership, and they get a form from the stationary store, modify it, and go into business. When the business turns sour, one often discovers that they did a horrible job creating the form, most often because people cannot write clearly, and these do it yourself forms are filled with ambiguities. Again, a paralegal who spent decades preparing these forms would be cheaper than a lawyer, and less risking than a purely do it yourself approach. Again, in a marketplace where information flows freely, the consumer should be allowed this full array of choices, rather than what is really a Hobson's choice between an unaffordable lawyer or no lawyer at all.
The flip side of my market approach is that I don't think Court's should be at all lenient towards people who opt to represent themselves — which is something most judge's currently are. The fact is that our judicial system is labyrinthine and even the worst attorney will probably have more of a sense of how it operates. However, if we have a true open market, than those who make the informed market approach to represent themselves, or to get legal advice from paralegals, should not be allowed a special benefit in the court system from having made that choice.