The American legal system is in grave danger of becoming a system of oppression used by the powerful against the weak. When our courts are no longer accessible by the average person, when there is no mechanism for payment of lawyers who enforce the rights of those without economic or political power, when funds to legal services programs are cut or abolished, when laws are written that increase the procedural burdens and burdens of proof required when the average person challenges the wealthy and powerful, when the right to trial by jury is consistently nullified by boilerplate contract language, when judges are increasingly selected for their ideology and political alliance rather than their jurisprudence and temperament, when the legislature and corporate-drawn contracts of adhesion take away the right of the average person to use our courts, when the legislature passes laws prohibiting working-class people from bringing their often modest claims as a class-action lawsuits in our courts and forces them into expensive individual arbitrations, when the legislative and executive branches of our government seek oversight of our courts and underfund our courts to a degree that renders them incapable of performing their function in our democracy, you no longer have a system of justice, but a system of oppression wherein the law is used as a weapon against the weak.
Sadly, I see all of these things happening at ever-accelerating rate, based upon a fictional claim that the system is broken and over-run with frivolous claims by greedy consumers and their lawyers. If one looks at how our civil ccourts are actually utilized, the falsehood of these claims becomes readily apparent. Consider that, for the week of March 3 – 12, 2017, there were 126 civil cases filed in the Leon County Florida Civil Courts. Here is the breakdown of those cases by type:
Case type Number Filed
Auto Accident 6
Debt Collection 60
Residential Foreclosure 10
Premises Negligence 1
Medical Malpractice 1
Discrimination 4
Products Liability 1
Inmate lawsuit 6
Residential Eviction 20
Misc Other 9
Of the cases filed last week listed above, 48 were filed in small claims court, which is supposed to be “the people’s court” due to relaxed pleading standards deigned to allow a less formal process than Courts that deal with higher dollar or more complex cases. Sadly, small claims courts are increasingly the place where the wealthy and powerful bring cases filed by their lawyers against poor people who in the vast majority of cases have no access to lawyers. Of those 48 small claims cases filed last week in my local courts, 40 of those lawsuits were not claims brought by individuals, but were filed by companies who purchase defaulted debt, usually credit card debt, and were suing individuals and families. Most interesting, of those 40 cases, 20 were filed by a single company, Midland Funding, a company who has never once been willing to go to trial in any of the cases where I’ve appeared on behalf of a consumer who they were suing. Unfortunately, most consumers are not able to secure representation by a lawyer and so they either settle or the court enters a default judgment when the consumer fails to show up for court.
Politicians, supported by corporate donations, are quick to raise a cry of alarm that we are experiencing an epidemic of lawsuits. They say tort lawsuits are out of control, but is this claim in any way reflected in the numbers we find above? Do we really need to limit medical malpractice lawsuits when they constitute less than one percent of all the lawsuits filed? Why do debt collection lawsuits, evictions, and foreclosures constitute 75 percent of our civil cases? Where is the epidemic really? Where is reform really needed?
I fear that justice is about to become much more elusive in our legal system. There are a number of new laws being considered at both the federal and state levels that will only increase the one-sided nature of our legal system. Most alarming to me is the current federal legislation entitled “Fairness in Class Action Litigation Act” that is purposefully designed to kill class action lawsuits. The American Bar Association and a large number of consumer rights groups have issued statements opposing the law. Consumer claims are often unfeasible when brought individually due to the small amounts of damages that often represent huge profits for the dishonest business when spread over thousands of customers. I understand that some people either don’t understand or are philosophically opposed to class action lawsuits, but no other mechanism is as important or as potent for maintaining integrity in our marketplace as the class action lawsuit. Class action lawsuits are going to be even more important in an era of reduced government oversight as we see the disappearance of important consumer protection laws such as Dodd-Frank, and the restraint, if not outright elimination, of administrative watchdogs such as the Consumer Financial Protection Bureau, Environmental Protection Agency, Food and Drug Administration, and the Federal Trade Commission.
Another misguided bill is the “Lawsuit Abuse Reduction Act” which is aimed at lawyers representing individuals and families, and would require federal judges to impose sanctions in the form of costs and attorney fees against lawyers who file lawsuits that are deemed “frivolous” by the court. Such a law would have a chilling effect upon the development of new legal theories or reinterpretation of the law. It’s also notable that this law would not impose any risk for the lawyers on the other side who raise frivolous defenses.
Lastly, and I admit self-interest here, we are quickly reaching a point where lawyers like me who seek to protect the rights of individuals and families are going to be unable to continue our work. Ending class-actions, capping attorney fees, forced arbitration, complex and onerous pre-suit notice requirements, under-funded courts that charge excessive filing fees, making consumer lawyers vulnerable to one-sided sanctions, and the repeal of consumer protection laws will effectively put me, and many of my colleagues, out of business. I know there are some who will celebrate getting rid of lawyers with a cheer of “kill all the lawyers”, ignorant of the roots of that statement and what an America without lawyers representing individuals and families will look like. As for me, it’s a frightening future, one devoid of real opportunities for justice, where the masses live their lives subject to the whims and will of their corporate overlords. We will no longer have a justice system; our legal system will be nothing more than a system that maintains the current power relationships in our society. It will be a system of oppression.