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March 1, 2015
Lawmakers talk access

Access Commission brings its story to the Legislature

By Jan Pudlow
Senior Editor

Charles McBurney is a member of the Florida Commission on Access to Civil Justice, an eclectic array of 27 leaders from all branches of government and the business world. But on this February day, the Republican legislator and attorney from Jacksonville chaired the House Judiciary Committee and invited his legislative colleagues to ask questions of Chief Justice Jorge Labarga and Bar President Greg Coleman.

Rep. John Wood, R-Winter Haven, an attorney, asked Labarga’s opinion of the biggest challenge the new commission faces.

Charles McBurney “Obviously, funding is an issue, but it can’t just come from government,” Labarga answered. “It has to come from the business community, the Bar association, all segments of society. That, obviously, is going to be the biggest challenge.”

Rep. Dave Kerner, D-Palm Springs, also an attorney, said, “I think our access to civil justice is a reflection of our standards and morals as a society. I think this issue is probably bigger than most people think. . . . One of the five factors you talked about was resources. I think we all have to admit that is probably the biggest barrier to access. . . . It looks like some states swallowed the pill and saw fit to fund access, pro hac vice fees and IOTA accounts and all of that.

“As the commission moves into this and tries to tackle the resource issue, what have been the most successful ways of providing resources to access to civil justice? And, noting that the IOTA accounts are not stable and [revenue generated from the accounts] have dropped precipitously over the last couple of years, are there other, more stable areas of revenue the commission is going to examine?”

Noting that the commission’s first meeting was only two weeks earlier on January 16 and they’ve been “pretty much bombarded with tons of information about what other states have done,” Labarga said all ideas are up for discussion.

“Texas, for example, they are heavy on taxpayers and the Texas Legislature provides some funding for their system,” Labarga said, referring to $17.6 million funding for legal aid last year.

“Perhaps that may not be a fit here in Florida. But we are looking at other ways to fund this. Funding is always going to be an issue, obviously. I’m hoping our commission will come up with ideas on how to do it, how to streamline things so it doesn’t cost as much, so we don’t have to pay a lawyer $600 an hour to do the work. Hopefully, this study will come up with some great ideas.”

Kerner gave what he called a “suggestion as a new practitioner. I think in years past, the information of the law has been closely guarded. It used to be in books, and it’s hard to read those books. Over time, with technology, this information has been put out there. Defending a foreclosure may not be as difficult as a lay person thinks, for example. . . . So I hope the commission embraces such things as Google Scholar and putting them in an easy-to-use format.”

Labarga replied: “We will look at everything. But bear in mind, forms only get you into court. . . . Once the person gets into court, there is still court procedure, hearing rules. . . and the person is going to have to cross-examine witnesses, call witnesses, subpoena witnesses, and make closing arguments. And the judge can’t help.”

The chief justice recalled a time from his trial judge days in a foreclosure case.

“I felt kind of bad for the folks and I started to tell them they could do this and that. And suddenly I get a sarcastic remark from the bank lawyer saying, ‘Judge, why don’t you just go over and sit at the table with them?’ Judges have to be very careful. . . . That’s why we need to have a live lawyer present.”

When it was Coleman’s turn at the podium, he said, “To Rep. Kerner’s point, back in the heyday before interest rates fell through the floor, $70 million was being generated through the IOTA trust accounts. So, when you compared that to the $500 million of free time that lawyers give [a reported 1.9 million hours multiplied by Florida’s median rate of $250 an hour], then it’s only a drop in the bucket. . . . At its height, it’s only serving 20 percent of the indigent.

“We have a problem,” Coleman said. “Again, I look at it completely as a societal problem. The problem and the struggle are primarily in the area of family law practice. A staggering number. In Florida, 85 percent of the family law cases have at least one pro se, or self-represented, litigant in each case.

“So they wander into this system that’s designed for lawyers. It’s not designed for the average citizen. It’s a frustrating system for them. It’s an aggravating system for them. They get depressed. They get anxious. It costs them productivity at work. A recent TaxWatch study says that for every dollar in access that is spent, you get a $4 benefit in the business community.”

Rep. Michelle Rehwinkel Vasilinda, D-Tallahassee, an attorney and college professor, serves on the Bar’s Vision 2016 commission looking at the future of the legal practice. She asked how to use paraprofessionals and technology to help with access to civil justice.

“I think lawyers often are not utilized to their highest level, and we don’t rely on paraprofessionals as much as we should,” she said.

“Interestingly, some of this is going on in other areas of the country,” Coleman said. “In Washington state right now . . . they have paralawyers, somewhere between a paralegal and a lawyer . . . this new system where they sort of carved out paraprofessionals, paralawyers, whatever you want to call them, and they are not under the supervision of a lawyer. They have their own regulatory oversight by the court, and they are allowed in certain limited areas to meet with clients, to discuss issues, to write letters, to draft documents — all without supervision of a lawyer.

“Now, is that a good thing or a bad thing? To be quite honest, I don’t know. Time is going to tell. But I think creative thinking around the table will come up with some suggestions like this, and like Chief Justice Labarga said, we’re going to look at them all.”

Rep. Wood said, “Following up on this thinking outside the box, let’s just take the family law area. Do you see any constitutional prohibitions against creating courts . . . like small claims courts, where we encourage citizens to appear unrepresented? . . . . Maybe we need to be result-oriented rather than process-oriented, in terms of our strategies.”

“I can tell you that one of the business leaders asked me a question after the meeting. He said, ‘You know, it seems to me that you all carved out small claims and made it simple,’” Coleman said, explaining how it’s a simplified way for people to resolve disputes under a certain threshold of money and about 85 percent settle in mediation on the first day.

“He asked if we should look at coming up with a simpler way to deal with the lower-value estates and divorce and family law matters. Pick a number. If you have a marital estate of less than $50,000, whatever the number is, and try to think about simplified forms, simplified process, looser rules of evidence, things like that. That would require significant change, from a rule perspective, and from the court’s perspective. But I think those types of creative suggestions and thoughts are on the table.”

Wood, who has been a member of the Bar since 1978, said, “My biggest observation is the lack of knowledge of our citizens is really the great barrier to access to justice. . . . Law is knowledge. It’s not about having a good lawyer. It’s having knowledge of your legal rights.”

Labarga said, “That is one area that I agree with you 1,000 percent. A lot of people don’t even know they have a claim.”

Lawyers need to be educated, too.

As Coleman relayed, a recent Florida Bar poll asked if there is an access to justice problem for the citizens of Florida.

“Sixty-six percent either think there’s no access problem or don’t know,” Coleman said. “Our lawyers. That’s a problem. That’s my problem. I have to get them educated. Then we need to educate the public and say, ‘Here are some technological resources you can use to educate yourself so you don’t get yourself in a bind.’”

McBurney closed the hour-long meeting saying, “I anticipate at some point there will be consideration of some legislation, maybe not even this session. . . . We appreciate your input, and in the meantime, stay tuned.”

[Revised: 04-16-2018]