Home » Legal Stuff, PG's Thoughts (such as they are) » As DIY Litigants Crowd The Docket, Courts Step In To Help

As DIY Litigants Crowd The Docket, Courts Step In To Help

7 January 2019

Not necessarily about authors and books, but an illustration of a problem that has been around as long as PG has been a lawyer.

From Law360:

Tarikul Khan turned around and whispered, “I’m scared now.”

Waiting in a wood-paneled Brooklyn courtroom for the first hearing in his lawsuit, Khan was watching U.S. Magistrate Judge Lois Bloom grill a plaintiff also representing himself, in an unrelated matter, about his failure to hand over evidence.

When he eventually stepped before Judge Bloom, though, the judge’s first remark was about how Khan’s complaint for disability benefits was unexpectedly shipshape.

Khan, 68, wouldn’t have been able to create that document without behind-the-scenes help from a key consultant.

“Ms. Cat made this. She did help, everything,” Khan told Law360 in the court cafeteria before the Nov. 8 hearing. “I can’t make this thing myself. I finished high school only, no college — a little bit of college. I have nothing like this.”

“Ms. Cat” is Cat Itaya, the director of the Eastern District of New York’s legal assistance clinic for “pro se,” or self-represented, litigants; it lives inside the courthouse and is run by the City Bar Justice Center. Khan visited Itaya beginning four months before his first hearing, and over six or eight visits — a couple with volunteer lawyers, but most with Itaya — she digested his story and put together a complaint in language the court could parse.

While they remain rare for now, clinics like the one in the Eastern District of New York appear to be catching on in federal court as a way to aid self-represented litigants, for whom putting together a legally coherent complaint can be an insurmountable barrier.

Link to the rest at Law360

PG says there is plenty of blame to go around.

– Laws are made by legislatures. Federal laws are made by the Congress of the United States. State laws are made by the legislatures of each state.

Most legislators are not attorneys. Theoretically, legislatures have access to attorneys who may help in drafting the language of the laws the legislatures pass. In practice, political or business advocacy groups may draft language that friendly legislators then submit for passage.

The legislative process involves a lot of negotiations and the results of those negotiations can be various provisions of the statutes that aren’t consistent with each other or that carve out exceptions to the general application of the statutes. Amendments to the statutes to solve perceived problems may generate additional problems.

It is very unusual for a legislature to simply eliminate laws that prior legislatures have passed without providing replacements. The net result of this behavior is a collection of laws that grows larger and larger over time. The first Congress of the United States met from March 4, 1789, to March 4, 1791 and subsequent congresses have been passing laws ever since.

– Many laws authorize federal or state agencies to write regulations to implement the laws. These regulations typically have the effect of laws. Once passed, regulations may be amended by the agencies without going back to Congress for approval.

Every working day, The Federal Register, publishes agency rules, proposed rules and public notices regarding agency rules and practices. During the past several years, The Federal Register has released 70,000-90,000 pages of new federal regulations each year.

To remain current on every regulation released by The Federal Register, an individual attorney would have to read 200-250 pages of new federal regulations per day every day of the year with no time off for weekends, vacations, holidays, etc.

– A popular idea for providing legal assistance for indigent individuals is to require attorneys to provide free pro bono (from the Latin pro bono publico,”for the public good”) services for such individuals.

For reasons that may already be obvious, no attorney is competent to handle every type of legal matter that may arise under state or federal law. The finest patent attorney in the United States would almost certainly have no idea how to handle Mr. Kahn’s disability claim described in the OP.

Speaking from past professional experience, PG can say that indigent individuals have different legal problems and requirements than school teachers, doctors, and bankers. The types of legal issues that indigent individuals face are within the realm of expertise of a very small number of attorneys. The reasons for this will be obvious – If you wish to earn your living as a lawyer, representing bankers is a better professional decision than representing indigents is.

– Can’t U.S. Magistrate Judge Lois Bloom help out Mr. Kahn with his problems as described in the OP?

A magistrate judge or “magistrate” is what amounts to an assistant judge operating under the direction of one or more US District Federal Judges. (A US district judge is one who conducts trials in cases that fall under federal laws. State trial judges do the same things for cases arising under state laws. In the US, there are many more trials conducted by state judges than federal judges.)

Under US law, judges are supposed to be neutral arbiters of the disputes that come before them, favoring neither side.

The OP doesn’t go into detail, but PG suspects Mr. Kahn’s claim for disability insurance was being pursued because the US Social Security Administration had denied Mr. Kahn’s claim for disability benefits for one reason or another. The SSA is the adverse party and Magistrate Judge Bloom is supposed to decide the dispute between Mr. Kahn and the SSA on the basis of the law and facts as she finds them without unduly favoring either side. If she coaches Mr. Kahn, she compromises her obligation to be a neutral arbiter.

Additionally, most Magistrate Judges are enormously busy handling a flood of various cases, including criminal cases in which the constitutional rights of the accused require speedy trials.

– Legal Aid or other legal assistance organizations as described in the OP can be a very good solution to the challenges PG has described. Essentially, such organizations include groups of lawyers who specialize in representing poor people in the types of legal matters in which poor people are commonly involved.

Unfortunately, funding for such organizations is always a problem. Most are funded by state legislatures. In some cases, the state bar association kicks in some money. In large and wealthy cities like New York City, city government and/or the city bar association may also help provide funding.

Whatever the sources of funding, there are always more indigent people with problems than there are salaried lawyers at a legal assistance organization to provide competent legal assistance.

A significant number of private attorneys provide voluntary legal assistance to indigents, either directly or through legal assistance organizations as described above.

Attorneys who specialize in the more remunerative areas of the law are often not of much use in assisting indigents because of their lack of knowledge about the law outside of their specialties. Attorneys in general practice, who, as a group, earn less than legal specialists, are of the most use to legal assistance organizations because of the general practitioner’s broader and more general scope of legal knowledge.

In a former life, PG was an attorney in general practice in a small town located in an area not known for its wealthy residents and represented a lot of poor people, either through the local legal assistance organization or on his own. He was also a member of the board of directors for that organization for several years.

Although he won’t go into detail, PG will say that some of the most personally-satisfying cases he handled in his former practice were for some of the indigent clients referred to him by that legal assistance organization. The term, “deserving poor,” has most definitely fallen out of favor, but some of PG’s former clients were excellent exemplars of that term.

As he said at the outset, this post is not necessarily about books and authors, but more for the general education of US visitors to TPV. PG knows little about similar problems and solutions in other countries other than to know they exist to a greater or lesser extent.

TPV receives visits from more than a few attorneys and they, along with everyone else, are invited to comment.

 

Legal Stuff, PG's Thoughts (such as they are)

9 Comments to “As DIY Litigants Crowd The Docket, Courts Step In To Help”

  1. Canadian law has similar experiences and outcomes, and there are lots of legal aid clinics staffed by pro bono, new graduates and law students. Often times they are focused heavily on rental unit disputes with landlords or custody/family law matters.

    And yet the same thing appears in another area, with slightly different causes. Disability benefits often require proof of three things — a) a prolonged or severe injury; b) the injury is producing a disability; and c) the disability prevents someone from working. That’s a simplification and mischaracterization to some extent, but it’s an okay explanation. For one prominent Canadian benefit program, the approval rate at first instance is only 40%. So 60% are rejected. Why? Some because they simply don’t qualify. Others because they are disabled, often with an impact on their cognitive ability, and they have to represent themselves in their application:

    a. How do you prove severe/prolonged injury? Medical evidence…but very few applicants would know that a three-year old respirology report is worthless to a decision-maker, they need an updated one. If they even know that respirology is relevant to their diagnosis/disease. If they even know how to read it or access such a report.

    b. How do you prove it’s causing a disability? Most self-represented applicants assume the diagnosis of injury proves the disability but in fact you have to show the impact. Just because you have diabetes doesn’t mean you have a disability, need to show where you are on the spectrum. Almost need to be a doctor to show where you are, to even interpret the tests.

    c. How do you show it prevents you from working? Need to show how it impacts you on day-to-day basis, not just the original diagnosis. Lots of people are in car accidents, doesn’t mean they can never work again. And this gets close to the legal and medical definitions.

    For appeals of denials (because no one appeals approvals!), self-represented clients do poorly; those with advocates (lawyers or non-legal experts trained in disability applications and appeals) do way better. On the lines of 10% success vs. 80-90% success. It’s a bit of a misleading indicator though as the advocates are paid on contingency fee basis so they only take cases they can win on appeal. Very few people use advocates for their first application, just the appeal.

    As a manager, I saw similar experiences for the “client”. I had an employee who received a head injury / concussion, and was off work because she couldn’t focus, her cognitive ability was impaired, her judgement was off. And then I had to send her HR forms with medical docs of 20-30 pages to say “Here, fill these out and figure out what you want to do with your life”.

    To put it context, you want to know what one of the biggest challenges with dealing with clients who are dealing with disability? Getting them to open their mail. And yet we expect them to represent themselves in a timely and organized fashion for applications and appeals.

    There are people who hate these legal aid clinics and think people should be able to take care of themselves, but in my limited experience in this area, there are clients who need help just to rise to the level of being able to access their basic rights.

    Whenever I see one of these groups closing, I think “Here comes a whole bunch of ex-clients who are about to get screwed because they don’t know the basics of how to represent themselves effectively.”

    No solutions, only depressing outcomes often…

    PolyWogg
    aka The Bleeding Heart Tadpole

    • In the States, first disability claims are often routinely denied. And many of the applicants will die before they get a chance to appeal or apply again.

      It saves money.

      It is incredibly hard on the disabled.

      And, even with a lot of proof, it took me three applications over six years (the long-term disability insurance company required I keep applying to SS) before rules changed at SS, and I was approved.

      This for a research physicist working at Princeton who could no longer stay awake in meetings, much less understand the content or contribute to them.

      People with ‘fuzzier’ claims go through real horror stories.

    • Thanks for all the detail, Paul.

      It sounds like that, regardless of the differences that may exist in the underlying disability benefits laws between Canada and the US, the behavior of individuals seeking benefits is quite similar.

      • I think it depends a bit PG on the provider. The Cdn federal govt program used to be seen as a “social program”, and the people doing the reviews used to err on the side of approvals. As time progressed, and costs increased, it has moved towards “the right decision” and so obvious ones are out or in, and the focus is on the gray areas. But unlike a program like unemployment insurance where someone might get several months worth of benefits, the “hit” to the bottom-line is larger — most disability recipients get in their early 50s and continue until retirement. 9 years on average. So a much larger outlay. And going back to the criteria — yes someone has an injury or a disease, and yes they have a disability — the focus is on whether it prevents someone from doing the job they were doing or whether it prevents them from doing ANY job with retraining, adjustments, etc. At times, it is more art than science. But it is a pretty high threshold to reach. In the public sector, I don’t think it is a “default no” but you do have to prove it.

        In the private sector, there is a double no at work. First and foremost, most benefit plans ONLY provide on top of whatever the government provides. So they always want you to file for govt first. So if insurance program says you should get $1000 a month but govt will give you $500, then you only get $500 from the private. In most jurisdictions, the company has no official status to deny you until you apply for govt (they’re on the hook either way), but they will do everything in their power to sequence it that way and say “no” until you do (or lose your file, etc.). Often times, they’ll calculate what you SHOULD get from govt and deduct it anyway, even if you’re not getting it yet. Secondly, the jurisdictional issues in the US make it easy to have the insurance companies located in friendly states taht allow them to say no to everyone with little legal recourse. The reps actually have key performance indicators that they’re measured on that show that a certain percentage of applications are refused at first instance. One legal way they do that is to say they guarantee a 30 day decision…but most applicants can’t get all the medical forms in within 30 days. So at 30 days, the insurance company denies the claim because “there is insufficient evidence”. And they close the file. Then the person has to apply to re-open it or appeal, blah blah blah. And as Alicia said, some do this until the person gives up or is dead. In another life, I am on a discussion group with people who are seeking reimbursement for contact lenses for their kids — medically necessary after surgery to remove congenital cataracts. Denied at first instance because they get treated as cosmetic for adults…but if the optometrist/ ophthamologist codes it as a prosthetic, it goes through no problem. So a lot of the conversation amongst our US counterparts are “what is the right code with insurer X or Y”, something we don’t experience in Canada much.

        Sorry, I think I hijacked your thread to say I agree with Alicia, insurance companies are evil. 🙂 And the average person, particularly dealing with a disability or other social factors, need help dealing with programs that seem relatively simple to the designers.

        One of the big US programs has a GREAT option…they have a voucher system for anyone who gets to a certain level of application/appeal that automatically routes them to advocates and specialists in the private sector to help package their file before it is submitted. And of course one of their biggest “value adds” to the process is they have seen it before and they know, for example, that a respirology report is only good for a year or if you’re applying with disease X, you should definitely lead with the neurology report and not the GP’s report, etc.

        At it’s most basic form, the “helper bees” just know how to properly structure an argument in the form that a court or decision-maker in a benefit program needs to follow to make a decision.

        The more you look like the normal file, the easier it is for the bureaucracy of any sort (private or public) to process you.

        I suddenly have a 1984 flash coming over me…

        P.

        • Sorry, I think I hijacked your thread to say I agree with Alicia, insurance companies are evil.

          This is easy to fix. Just increase insurance premiums and taxes to finance a larger pool of recipients, and increase benefits. It’s math, not good or evil.

  2. In the UK disability cases (after appeal to the government department) would be heard by special courts (a tribunal) which are specifically designed to allow people to represent themselves*. While impartial the judges are tasked with ensuring justice is done which allows them a degree of patience and coaching.

    * There are a lot of similar courts such as small claims court, as well as ombudsmen who are given arbitration powers for some specialist actions. The UK in general attempts to keep civil cases involving data protection, state benefits, housing, healthcare, and consumer finance out of mainstream court.

    • The Cdn side has an admin tribunal too, but self-representation is a huge challenge to handle when you are facing a disability. It almost seems like a cruel test at times…if you’re capable of getting through the tribunal, you probably don’t need benefits; if you can’t get through the tribunal, you probably needed them.

      Outcome rates seem pretty similar at the final “outcomes” overall for Australia, UK, Canada, NZ…but within, some approve more up front and few appeals; others deny up front and reverse on appeal.

      P.

  3. Richard Hershberger

    The way most of these federal disability cases work in practice is that there are lawyers who specialize in them. But how to pay the lawyer? First off, the legal fees are set, and surprisingly low. The process is fairly standardized, and frankly pretty assembly line. Once a lawyer has mastered the process, he can churn through a lot of cases, not making much on any given case but working in bulk. Once the award comes through, there is a backlog of unpaid benefits paid in a lump sum, with the lawyer’s fee deducted from it. Many versions of How Poor People Pay for a Lawyer work along similar lines, at least in civil matters.

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