Can the Middle Class Afford Justice?

Despite the fact that I spend as much time as I can in courtrooms, I still enjoy reading fiction about the law and lawyering. I worry always about what I am missing as I stand in the middle of someone else’s storm. Legal fiction provides perspective, and, frankly, entertainment.

Why is it that not one writer of legal fiction deals realistically with the business of making a living at the practice of law? Is the topic too difficult to render? Or is it that we don’t want to be honest about legal fees?

Few clients can afford the lawyer they want, and few private lawyers can afford to give clients the representation the client deserves. But you wouldn’t know that reading thrillers.

In Scott Turow’s world, Kindle County, portrayed in “Presumed Innocent” and other novels, lawyers never sweat about a fee. They hire experts and investigators, and spend countless hours passionately pursuing psychologically nuanced, and literate, justice.

John Grisham’s lawyers — there are dozens of them — are obsessed by money. They bend and break rules to get enormous sums of it. Both good and bad attorneys make bundles, either by winning improbable verdicts or by engaging in scams that get them either imprisoned or disbarred.

Both Turow and Grisham are lawyers. Turow, a Harvard Law School graduate, works in a big firm in Chicago, the sort of place where partners weigh their money, it being too time-consuming to count it all. Grisham started out as a lawyer after attending the University of Mississippi’s law school. Grisham left the law when fiction proved more lucrative. Both men lead charmed financial lives; so do their fictional lawyers.

Most lawyers struggle daily with such things as meeting their payroll, servicing their law school debt, paying their mortgage(s) and otherwise staying one step ahead of their creditors.

Ironically, the only writer of legal fiction who comes close to grasping this is Michael Connelly, the author of “The Lincoln Lawyer.” Connelly is not a lawyer, he is a former crime reporter, a journalist. Mickey Haller, his protagonist, tries a good case, works his files, and chases fees. Yet, even Haller leads a charmed life. Some high roller always seems to rescue Haller just as his creditors are about to move in for the kill.

Most lawyers live lives of quiet financial desperation.

Walk the halls of the criminal courts in New Haven, Bridgeport or Hartford some time and you’ll see a world that fiction doesn’t capture. Sit in a law office after 5 p.m. sometime and you’ll hear stories too heartbreaking and hopeless to entertain. What you will see and hear is the middle class being sacrificed on an altar of need.

The wealthy don’t have to worry about legal fees. Money talks, and lawyers listen to its whispering ways. O.J. Simpson won an acquittal in large part because he could afford a team of lawyers and investigators who could literally travel coast to coast in search of evidence. A man with lesser resources might never have found compelling evidence that Mark Furman had a thing for the n-word, a singular factor inflaming the jury that acquitted Simpson.

The poor and members of the lower-middle class get lawyers free of charge courtesy of state and federal public defender systems. These lawyers engage in litigious fury without the nagging worry about how to pay for it all. Connecticut has one of the best public defender systems in the nation, with funding for experts and investigators generally available. I envy public defenders.

It’s members of the middle class who get skewered when it comes to legal representation. Shouldn’t they have access to the same experts the wealthy and the poor can afford?

Most private criminal defense lawyers charge flat fees paid in advance. This is not because the cost of such work can easily be forecast. It is rather because few ordinary people can afford hourly legal fees. And the dirty little secret among criminal defense lawyers is that the first money you receive is likely to be the only money you will ever see.

People don’t plan their budgets with hiring a criminal defense lawyer in mind. An arrest is like an illness, an event you very well may have invited into your life, much as a smoker invites a world of ills into hers. An arrest is an unwelcome and malignant presence. There is no insurance market to relieve a person charged with a crime of the financial consequences of seeking representation. You are on your own.

So time and again, criminal defense lawyers find themselves listening to folks bargaining with dread: Will you take a payment plan? Can I give you my car, a lien on my house, some other item of value? Idealism crumbles in the wake of these calls. No lawyer can pay his staff, his creditors, himself, with other people’s promises. Any private lawyer can tell you about the Caribbean islands he could purchase with the unpaid promises of the desperate.

But clients don’t want to hear about the lawyer’s troubles. They want justice. They are entitled to justice, aren’t they? Indeed, they are. But that does not mean they are entitled to the unlimited time and resources of a lawyer they cannot afford. That only happens in legal fiction, in Turow’s or Grisham’s world, the world where money is like magic.

In a better world, no one would have to worry about legal fees. Members of the middle class, just like those without resources, would be entitled to public defenders. We’d have something like a national legal plan. Anyone accused of a crime would get a lawyer at state expense. That would be the fair and just thing to do. Why should a family be pressed to the point of privation while their loved one is presumed innocent?

It is costly and time-consuming work seeking a just result in a criminal case. The fact is, few people can afford it, and those who can’t are forced to make compromises with rights we call fundamental.


Also listed under: Journal Register Columns


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© Norm Pattis is represented by Elite Lawyer Management, managing agents for Exceptional American Lawyers
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