The Justice Gap

It is customary for the Chief Justice of the Texas Supreme Court to give a State of the Judiciary address to the Texas Legislature. Chief Justice Nathan Hecht delivered his address on 2/1/17.

Chief Justice Hecht made mention of the need for the civil justice system to be accessible for all. He correctly stated that, “Justice only for those who can afford it is neither justice for all nor justice at all. He said: There is a justice gap in this country and, If justice were food, too many would be starving. If it were housing, too many would be homeless. If it were medicine, too many would be sick. If it were faith, too many houses of worship would be closed.” Justice Hecht also estimated that “…only 10% of the civil legal needs are actually being met.”

Justice Hecht’s remarks are entirely correct. If anything, Justice Hecht’s figure may be too high.

Most people are familiar with the fact that state and federal governments must appoint counsel to represent indigent persons who are charged with a crime. This is true because persons charged with a crime have a right under the U.S. Constitution to the effective assistance of counsel. However, there is no such right in civil cases. Consequently, while the law may provide a hypothetical legal remedy for a civil wrong, a person of average means or less usually cannot afford to hire a lawyer to enforce their legal rights in the civil justice system.

Why is this so?

There is the obvious fact that lawyers charge what they believe their time is worth or what the market will bear, and that fee is often too high to be affordable to a middle class person. It is also true that legal fees reflect the high cost of a lawyer’s overhead, i.e., the cost of doing business, which is increasing at a rate greater than inflation and greater than wages. This unhappy combination means that fees have increased beyond the reach of average Texans. It is a sad fact that many lawyers would find it financially uncomfortable to hire a lawyer for themselves.

The civil justice system is complicated and time consuming for lawyers to navigate. This is more true in civil cases than in criminal cases and the complexity begins with the Texas Rules of Civil Procedure, which are promulgated by Justice Hecht’s Texas Supreme Court.

A large portion of the time spent by lawyers in bringing a civil case to conclusion is devoted to what is called “pretrial discovery.” This catch-all term encompasses many forms of information gathering sanctioned by the Texas Rules of Civil Procedure that take place before trial. These information gathering tools include the taking of oral depositions. A deposition is a legal proceeding that takes place before trial whereby a witness who is believed to possess knowledge of relevant facts is asked questions. The witness’ answers are given under oath and may be used at trial whether or not that witness appears in person at trial to testify. Depositions are very expensive because they involve a lawyer’s time and high fees charged by court reporters and often videographers. Furthermore, if the witness is an expert, the witness may be charging a professional fee for the time spent in preparing and testifying. It is a strange dichotomy that our law grants greater rights of pretrial discovery to litigants in civil cases, where it is usually only money at stake, than to those charged with crimes that could result in imprisonment.

As a general rule, legal fees and litigation costs for pretrial preparation will be equal to or may even exceed the cost of the trial itself. This imbalance of legal fees and costs is unheard of in criminal cases where the pretrial discovery process is very, very limited. In today’s civil practice, by the time a trial date arrives, both sides know virtually every facet of their own case and that of their opponent. While this is said to be intended to eliminate surprise, facilitate the gathering of necessary documents and facts, and promote settlement, the pretrial discovery process can be and often is used by a wealthy corporation or individual to financially crush an opponent of lesser means.

There is an ever increasing reliance in civil cases upon the testimony of expert witnesses. In some cases the law requires expert testimony. For example, healthcare liability cases against doctors, nurses, hospitals and all other healthcare providers must be supported by the testimony of expert witnesses. The same is true for cases against engineers, architects, pharmaceutical companies, medical device manufacturers, manufactures of goods alleged to be defective, and even gun ranges. These legal requirements are courtesy of the Texas Legislature and the Texas Supreme Court. The high cost of expert witnesses makes it financially impossible for many potential litigants to bring their complaints into the civil justice system.

The Texas Legislature has in many cases limited the amount of money that can be recovered in a civil case. For example, the limit on non-economic damages in medical malpractice cases is $250,000. Because of the legal necessity of hiring experts to testify and the high cost of the pretrial process, it is common for lawyers to be forced to spend $50-100,000 out-of-pocket to bring a malpractice case to trial. With the $250,000 limitation in place, many legitimate malpractice cases are not economically viable for lawyers to handle on a contingent fee basis. There are similar damage caps on other types of cases that act as a disincentive for litigants and their lawyers. The practical effect is that those who are harmed by wrongful conduct often have no realistic legal remedy.

In many common civil cases, the winning litigant cannot recover their attorney’s fees and the true litigation costs. For example, if you are involved in a simple car wreck and can’t get the at-fault driver’s insurance company to pay you a reasonable settlement, you will have to hire a lawyer and that lawyer may have to file suit. If your lawsuit goes to trial, the judge and jury cannot award you your attorney’s fees even though you were in the right. Because of this, insurance companies can afford to play hardball with your claim during settlements negotiations.

Back in the 1970s, a much more progressive political climate existed in the U.S., including Texas. Texas passed a Deceptive Trade Practices-Consumer Protection Act. The Texas law was modeled after similar laws in other states. The law granted to consumers of good and services the right to file suit for a long laundry list of deceptive or unconscionable business practices. The law gave consumers the right to collect attorney’s fees and costs and, in some cases, treble damages if they proved they had been intentionally harmed. This law was a real effort to provide meaningful relief to consumers. However, the progressive era passed and politicians and judges with a decidedly business-friendly bias were elected. It took only a short time before the Deceptive Trade Practices-Consumer Protection Act was neutered, returning the advantage to business interests.

The federal government has financially starved into almost nonexistence the federal legal aid program. This is intentional. Enabling people to seek legal help is a progressive philosophy that is not currently in political favor. If the Congress cannot agree on a means to provide even basic medical care, you can imagine how unlikely it is that a Congress beholden to special interests will agree on meeting the legal needs of their constituents.

Texas and most other states have no publicly funded mechanism to provide legal services in civil cases to those who cannot afford to hire a lawyer. Texas, like most other states, relies almost entirely upon a voluntary system whereby the state’s lawyers are asked to contribute their services free of charge. Although most Texas lawyers do some pro bono work, it is far from sufficient to meet the need.

There is no political will in Texas or at the federal level to address the need. Special interests with money control every facet of government. There are no high-paid, influential lobbyists advocating for money in the budget to fund legal services for the poor. In fact, it is probably true that most monied interests enjoy their privileged place within the existing civil justice system and don’t want to see anything done by government which would increase access to the civil justice system by those who can’t afford it, i.e., they do not want a level playing field.

The remarks I have made thus far primarily deal with civil litigation. Beyond litigation, there are a plethora of other needs. For example, it is virtually impossible for people of ordinary means or less to get legal advice on routine legal matters involving wills, consumer contracts, landlord/tenant agreements, credit card debts, immigration issues, etc.

In short, no one who counts really cares. This is a cynical point of view, but I believe it to be true. If it was not true, governments would be actively trying to identify and quantify the legal needs of the public and appropriating money to meet them. In point of fact, no one with the political means to do something about it is seriously attacking the problem. It is just not the kind of issue that will get you elected and, if you are an incumbent, it might get you defeated. Although Justice Hecht’s platitudes have a noble ring, they are, without more, just words.

The civil justice system is divided into haves and have-nots. It is short-sighted, foolhardy and cruel to do nothing about this justice gap.