(The following text is all of Section II out of a paper entitled Law and Science: A Necessary Partnership delivered to University of Florida College of Law Dean Richard Matasar during a sit-in demonstration for legal reform in his offices on 9/17/96, in which I was arrested.)
According to an article in the 3/15/95 Florida Bar News, "Study: Legal Needs going Unmet", quoting a survey of the Florida public carried out by Temple University, "more than 40 percent of Florida's poor and middle class face problems that could be addressed by the justice system, but the majority never find their way to court. The most common needs of low and moderate income Florida households pertain to housing and real property problems, personal finances and consumer issues. But the study found that no lawyer, mediator or hearing body is involved in 70 percent of those legal needs. Moderate income households were more likely to say they could not afford the cost, the survey found. These two groups combined include about 85 percent of the household population of Florida" (making up to $60,000).
The study found further that in 40 percent of low income legal needs and 34 percent of moderate income legal needs nothing at all was done to address them and a lawyer was involved in only 19 percent of the legal needs of the poor and 25 percent of the legal needs of the middle class. Again we are talking about 85 percent of the household population of Florida with incomes up to $60,000.
Clearly the sociological problems created by this pathetic profile of the delivery of legal services is profound. Families with DUI and domestic violence problems are not getting the advice they need to keep their problems out of the criminal justice system which so often only creates more problems for both them and society for which taxpayers must foot the bill. One must ask in how many cases are those few who have access to the legal system taking advantage of those who don't? How many people have joined militias because they got into situations where they had no access to the legal system to protect their rights?
Indeed it appears to add up to the fact that the majority of Floridians have no access to their own laws and constitution. In such circumstances do we in Florida in fact have a constitutional democracy when the majority appear to have no access to their own constitution? --A point that we can be sure is not lost on those who would replace this increasingly unstable democracy with something they might think to be more stable such as took place in 1930s Germany.
And even though the legal profession is at the very core of any democracy and thereby one might assume should be the most readily available of all the professions, the Florida legal system appears to have the worst delivery of services of any profession I can think of. Indeed the delivery of education and medical services are bad enough but certainly not so bad that over half the population has no access to them when they need them.
ROLE OF THE SOCIAL SCIENCES:
Pathetically this state of affairs is entirely unnecessary; for resources in the social sciences are readily available to rectify it. First it may be noted that the Temple University study is a good example of the use of scientific resources and methods to identify this serious problem. Depending on the depth of the Temple study, it might be followed by a sociological study to target the specific segments of society that have the most critical need of services. This could then be followed by a business school study of the delivery of legal services viewed as the marketing of a service. This could include a price/quantity analysis to determine how many families would utilize legal services of various kinds at various prices. From a marketing perspective, it is certainly curious that the majority of the public have no access to legal services when at the same time law school grads can't find work and law schools are having to down size -- suggesting monopolistic pricing. Why aren't these law grads coming into the market at lower prices as free market principles clearly suggest they should? If they are, why aren't more people using their services? When the Florida people granted the legal profession a monopoly, they didn't have in mind a monopoly to fix prices.
Clearly one wouldn't know all of the ins and outs of the issue until a study had been done, but it appears to me that the price for legal services could be a third of what it now is for those who can't afford the current going rate. If a law grad makes $50/hr. in a legal clinic setting, with six billable hours a day and 220 days a year for $66,000 gross and $55,000 net per year, that is more than most teachers make with the same education. That way a family with a DUI or domestic violence problem could get a half hour of advice for $25 instead of the going rate of $75 for a half hour; very stiff for middle class working people. Are they doing it and if not why not? These are things a business school study can find out.
Bloated and complex legal practice and procedure needs to be examined in detail from the perspectives of psychology, sociology and economics with a view to cutting it down to the barest essentials that litigants can understand. In the case of divorce, the legal system waited until it was totally overloaded with pro se cases because people couldn't afford lawyers, before starting to make practice and procedure comprehensible for pro se litigants.
These three professions should examine the psychological, sociological and economic aspects of whether the goal of all parts of the legal system should be justice or well being and the difference in methodology to achieve each. They should study and come up with general principles concerning which of adversarial v. cooperative methods of dispute resolution are the most appropriate and cost effective for various categories of litigation.
There is a natural tendency in all professions toward complexity of procedure and language in the name of precision and accuracy. Psychological, sociological and economic studies could beneficially be employed to delineate where the trade off should be in law. Clearly if it is so complicated and expensive that over half the population is locked out of it, such accuracy is scarcely of benefit.
Even without the more comprehensive solutions suggested below in this section, I am convinced that the delivery of legal services and accessibility of the legal system can be vastly improved simply by getting the social sciences on the job along the lines suggested above in a conventional manner; for in the past they have simply been locked out in for too many areas.
For a more comprehensive solution, what would be required in coming up with a new code of laws covering 95 percent of state and local litigation, leaving out low volume specialty areas such as patent and maritime law to make the job go faster? Wasn't the Uniform Commercial Code done something like this? This could be a joint project of law schools and the social science departments; and as the work progressed, pieces could be turned over to the legislature for implementation or objections as the case might be. This way economic, sociological and psychological standards could be implemented for all statutes giving the courts a vastly more effective set of statutes to work from.
There is nothing unique about such an idea. The Code of Justinian of 533 AD., from which the entire western world gets its law from, was just such a code. The Napoleonic Code of 1804 is another example and there are others. There are clearly parallels between the problems of our legal system and those of 1789 France; one of which is the justifiable desire by the public for plain language understandable laws. We shouldn't have to have a revolution to get them.
Moreover the 20th century has seen unparalleled sociological and technological change. Is it now time to redo our laws to reflect this on a rational and comprehensible basis? This issue needs to be examined from the perspective of law, the social sciences, history, technology, etc. Even if we don't get a new code of laws, why do we need all this case law outside of incorporating it into an encyclopedic format? Many lawyers I have talked to say that judges either ignore it or use it to enforce their own prejudices. But new code or laws or not, why can't we have a user friendly plain language encyclopedic legal database on CD produced by our universities that has all state and local case law incorporated into it to be updated with new court rules, statutory and case law on a periodic basis?
The public gave the legal profession its very privileged position in our society and in return has every right to expect it to address objectively its problems and employ all resources available to it to give the public the best service it can in return. In the delivery of legal services it is light years away from this goal.
This is a page in the Web site entitled Legal Reform Through Transforming the Discipline of law into a Science.