A Call to Change: Why the U.S. Legal System Harms Americans, and How We Can Reclaim Our Rights

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Published July 03, 2007

| FoxNews.com

The president of the American Bar Association noted in an interview in June that almost half of the nation's 900,000 lawyers will be retiring over the next 10 to 15 years.

Karen J. Mathis told the Third Branch newsletter, published by the Administrative Office of the U.S. Courts Office of Public Affairs, that up to 400,000 attorneys will be retiring, and she called upon those baby boomers to make a positive impact on their communities and professions.

"Boomer lawyers," as they're called, came to the practice of law with the energy, enthusiasm, work ethic and democratic and liberal ideals of the ‘60s. We held the law in reverence and believed in a justice system that was created to protect the rights of all citizens.

And while the ABA president's call to retiring lawyers to continue to contribute through "active retirement" is critical, we cannot wait for these educated volunteers to create a positive impact on our flawed civil court system. The work must begin now.

I've been a lawyer for more than 30 years now, and since I practice in Las Vegas, I'm sure you'll believe me when I tell you I've seen it all: the young woman who had her pocketbook (and her identity) stolen and ended up being arrested on live TV for a crime she never committed; the sweet retiree who fell for a smooth-talking "gentleman" in one of the casinos and was conned out of her life's savings; the business partners who lost their friendship (and thousands of dollars) when their handshake agreement went sour.

In each of these cases, by the time the victims came to seek out my legal counsel, they had already become entangled in the legal system — whether they deserved to be or not. Without exception, these people were in emotional and financial pain. Their lives had been irrevocably changed by their encounter with the American justice system as it exists today.

These stories make me angry — and I hear them over and over again: tales of average folks who have been cheated by the very system that they expected would protect them. And while I contend that the entire legal system will benefit from close scrutiny and change, I also believe that lawyers are the average citizen's first line of defense.

Each year, thousands of people become embroiled in the bureaucracy of the civil court system. And most of them are there for the same reasons: someone is angry over a broken promise, or seeking revenge for an emotional wrong. Often they've gotten into a bad situation, at first avoiding seeking legal advice because it "costs too much" or because of a bad experience with the layers of bureaucracy that define our current methods for resolving legal dispute.

By time these clients arrive in a lawyer's office they have formed a poor opinion of our current overburdened legal system. It has let them down, cost them money, impeded solutions and delayed resolutions to their problems.

I propose that a lawyer's role today is not to "bail out" their clients but to educate them and help them find a solution without kicking them back into the legal system's vicious cycle of expense, delay and frustration.

People are right to look to the legal system for resolution of a dispute. But as it exists now, the cost, the complexity and the slowness of the system can be intimidating. However, there are ways to settle legal problems outside of the court system. These methods include mediation, arbitration (both binding and nonbinding) and other, more specialized forms of alternative dispute resolution (ADR). These methods are generally less contentious, less costly and less time-consuming than traditional civil litigation.

A radical shift in how lawyers, judges, courts and legislatures view the forum for dispute resolution is a critical step in restoring the legal system as a viable option for settling disagreements. Our legal system must return to the ideals it is rooted in and offer equal access and justice for all — not only for those with the means to afford counsel, but also for those without financial means who need impartial advice.

There is a lot I know as a lawyer that can be termed "practical knowledge" — information that extends beyond my legal knowledge of the torts and statutes of the state where I practice law. Through years of education and experience, most lawyers have acquired a store of preventative steps and proactive solutions that can be effective in avoiding or resolving many of the thousands of disputes that arrive in law offices and courtrooms across the nation.

In my office, in the courtroom, and on local and national television and radio, I try to educate people on how the system works — and how it could work so much better. Just as you would go to a doctor to seek a diagnosis, treatment and relief from an illness, so too should you be able to go to the legal system to gain clarity about, options for and resolution of a dispute.

People who have some knowledge of what can reasonably be achieved by the law, a respect for the legal profession and a trust that the process will fairly resolve their conflict are the clients who will benefit from our legal system. But this type of knowledge, respect and trust is lacking in many of those who come to me for help. For them, the services of a legal professional have become a last resort. By the time someone makes it into the legal system, their problems are often far more complicated than they ever needed to be. If lawyers do their job right, they should have fewer clients, not more, and the clients who come into their offices should spend fewer hours (and dollars) if they are educated about their situation.

So what can we do to begin this groundswell of change? The answer is simple. We can become more accountable. People can take responsibility for their own education and understand what they need to do to protect themselves legally. Lawyers can work to clearly educate their clients on how to work within the system and prevent future legal entanglements. Courts can mandate that people resolve their differences through mediation, rather than protracted legal battles. Judges can humanize the face of legal authority and use their powers to make the judicial system transparent to those it serves. And legislatures can listen to the voice of the people they serve and respond in ways that are tailored to individual constituencies.

The legal system was meant to promote equality and provide a fair venue in which to resolve disputes. But the erosion of access for those without financial means, the cynical and calloused attitudes of some of those who do legal work and the dehumanizing processes of an overburdened system have contributed to the erosion of our reverence for the law. Whether in active practice or active retirement, whether baby boomer or Generation X, if we believe we are to serve the law, as it was created to uphold the rights of all citizens, then we are all accountable to act in ways to change today's system.

Since 1998 Robert Massi has been a FOX News legal analyst covering high-profile court cases. He is the author of "People Get Screwed All the Time: Protecting Yoursel from Scams, Fraud, Identity Theft, Fine Print and More" (Collins Books 2007) and the host of a popular Las Vegas radio show that focuses on everyday legal issues, as well as a lawyer in private practice. In addition, he has founded The Conscience of America, an organization dedicated to improving the way citizens are treated by the legal system.

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