John Howard Griffin asks: “What problems occur because we have a Capitalistic form of legal representation?” Which is a big question. A BIG question. And, although I don’t think Mr. Griffin intended it this way, a trick question. To say we have a “capitalistic legal representation” means that the lawyers get paid money, and hopefully make a profit, for guiding clients through the legal system.
It’s a trick question because notions of capitalism, the way business out to be done, property rights, and economics are inextricably intertwined into the law to such an extent that to speak of “capitalistic” legal representation is basically a redundancy. Our legal system IS capitalism and without our legal system capitalism is not possible. There really isn’t a realistic alternative. Given that the ideology of money and property is so pervasive, the idea that the wealthy would not somehow pay for the best available lawyers strains the imagination near to, if not past the breaking point. So given that this is inevitably the way things must be, there is definitionally no distortion at all: it is the natural and ordinary state of affairs.
But the nearly as basic fact is that yes, money distorts justice. And not always in the way you might expect. Let me lead with an example, one that may seem counterintuitive.
My firm does a lot of eviction work. Which is a way we get clients who have enough money to own rental property. Thing is, compared with the coastal regions of California, my corner of the state has a fairly low barrier to entry for that category.[1] “Landlord” does not equal “wealthy person.” And sometimes, the tenants don’t pay the rent. There’s all sorts of reasons for this, good and bad.
The basic process of eviction in California is this: Tenant owes rent on June 1, fails to pay. Landlord serves a three-day notice to pay rent or quit on June 2. Tenant has until June 4 to pay the rent or move out. On June 5, if the rent isn’t paid and the tenant is still in the house, the landlord can file an unlawful detainer action. Let’s say this gets filed and served the same day. The tenant then has five days to answer, which period of time always necessarily straddles a weekend, so it’s really seven days. On day 12, the tenant files an answer with the court. On day 13, the landlord can file a “memo to set” which tells the court “this case is ready for trial.” The Court, in theory, is supposed to calendar a trial date within 20 days of the date the “memo to set” is filed. So on day 33, the case should go to trial. A bench trial is a five-minute process: the landlord says “The tenant didn’t pay the rent. The rent’s $1,000,[2] and the tenant owes me thirty-three days as of today, so that’s $1,084.91.” The Court asks the tenant, “Why didn’t you pay the rent?” and the tenant usually says, in effect, “Because I don’t have the money.” Tenant loses, court orders an eviction. If the landlord is on top of the paperwork, on day 34, something called a writ of possession goes to the sheriff, and the sheriff then sits on it for about two weeks and then serves a five-day warning notice on day 47. On day 52, the tenant is escorted off the premises by armed officers.
That’s if everything goes smoothly. I can offer this service to my clients for a pretty reasonable flat fee, a few hundred dollars. But now let’s alloy in procedural due process (of which I am a big fan) and money.
An eviction case is a civil trial. At stake is more than twenty dollars’ worth of value. Therefore, the tenant has a constitutional right to invoke a trial by jury. The court cannot handle a trial by jury in a particularly efficient fashion; jury trials are tremendously inefficient and cumbersome. There is substantial paperwork to prepare so that the court can deal with the jury, which the lawyers write, and witnesses the lawyers have to prepare for, and jurors the lawyers have to screen out of veniere and empanel, and then statements the lawyers deliver, examination of witnesses for the jury, closing arguments, jury deliberations, and so on.
…Wait, Burt. You wrote “lawyers.” As in more than one lawyer. I know you’re the landlord’s lawyer. But how did the tenant, who didn’t have enough money to pay the rent in the first place, ever get a lawyer to do all this stuff?
Well, you see, I have to charge my client for all of this. I can’t afford to do all of that for a few hundred dollars. I have to budget at least five days for even the simplest eviction trial if there’s a jury involved. And I have to tell my client that juries are inherently unpredictable and uncontrollable – there’s nothing to stop someone on the jury from irrationally feeling sorry for the tenant (who is, after all, economically disadvantaged or she wouldn’t be there in the first place) and unsympathetic to the landlord (who must, by definition, be rich and therefore well able to give help to someone less fortunate than her because she owns rental property).
I charge five thousand dollars for a jury trial like this, and that’s selling my time at half its usual rate. If I sold my time at the market rate of $300 an hour, the actual cost would be between ten and twelve thousand dollars for an entire week’s worth of my time.
Meanwhile, the tenant hasn’t paid her lawyer a dime. The tenant’s lawyer says instead, “Tell you what. Why don’t you waive the back rent, give my client another 45 days to move out, and pay her $2,500 on top of that?” If my client agrees, the lawyer takes a contingent fee – between forty to seventy-five percent, from what I hear in the courthouse hallway. But $2,500 in cash for keys, and the equivalent of $1,500 in foregone future rent, is $4,000. I have to charge my client $5,000 to try the case.
Consequently, it is a financially rational decision for my clients to pay tenants to move out. Nearly all of them do this, although most must vent profanity-laced moral outrage first. They are, after all, facing foreclosure themselves because the tenant hasn’t been paying the rent, which they use to pay the mortgage. To waive that money, give more free rent away, and dig into their own pockets to pay money to a lawyer who has not even looked at the file and solicited perjury from the tenant (“Oh, this place is a dump! No human being should have to live here! Please let me stay.”) is often both insulting and obviously unjust.
So now you see how the tenant’s lawyer gets paid. I will leave for you the moral evaluation of the tenant’s attorney, who has managed to obtain 501(c)(3) status for the law firm that does this to my clients between three and eight times a week for the past seven years.
So this is one way money gets in the way of the right result, and indeed inverts justice (at least from my perspective). You might think it’s all rich people buying themselves better justice than is available to poor people, but I stress again that the “big guy” is probably not nearly so wealthy as you might assume in these cases.
The real advantage goes to the party represented by the lawyer best able to leverage the transaction costs of the justice system, not necessarily the party with more financial resources. That’s the true distorting mechanic caused by the fact that lawyers are expensive. Now, in a related question, zic asked what might be done about this.
Perhaps frustratingly, with our due process clause allowing people to retain the lawyers of their choice, I think the answer is “nothing effective.” Even a radical idea like making every lawyer paid publicly on the same pay scale won’t advance the interests of justice particularly well. The system to look to there is the Judge Advocate General system that prevails in the military — all JAGs are paid the same by way of their ranks, and assigned cases effectively at random, sometimes as prosecution and sometimes as defense. There’s little cognate to the civil justice system in military justice, though; and that’s where a lot of the heavy work in law happens.
[1] A 3+2 with 1,750 square feet in a not-great-but-not-awful neighborhood crossed my desk recently which had sold at the foreclosure sale for $92,000.
[2] That’s pretty cheap rent for these parts. That same 3+2 with 1,750 square feet will probably rent for between $1,300 and $1,500 a month when my client is eventually able to get a tenant in there.
This may explain why a tenant is even able to find an attorney to represent them, but it doesn’t really answer my question, which was pointed more toward criminal law.
Also, if I’m not mistaken, the right to a jury trail when there are no criminal charges, varies by state. I’m not sure that an eviction proceeding would ever have a jury trial in my state.
I have to say, that while the debate below about good/evil landlords is worthwhile, I think Burt (whom I admire greatly) has pulled a slight-of-hand; using one state’s oddball laws to demonstrate how the perceived underdog in the legal system use that same system to further rip off their landlords, while pretty much ignoring the greater question: the impacts (and I’d argue constitutional impacts) of being able to pay a lawyer or not pay a lawyer.
We do have the world’s greatest per-capita prison population; a good bit of evidence that there’s a staggering number of innocent people serving time for crimes they did not commit (is there a correlation to poor legal representation and wrongful conviction?), and a stunning record of institutional racism in who serves time, what kind of plea bargains are offered, what are accepted, who gets pardoned, etc. etc. etc.
I think John Howard Griffin’s question (and I know my question) go far beyond the discussion thus far.
I don’t think trial by jury is all that oddball.
Also, I don’t think these folks are getting all that good of a deal (particularly if your credit rating gets trashed).
Your original question was:
I would not have assumed this question was aimed at criminal law. Indeed, I think criminal law is a field where, thanks to the interpretation of the Due Process Clause requiring the mandatory provision of public defenders to indigent defendants, the system is more equitable. This is not a claim that it is perfectly equitable, of course. But the disparity between a) the outcome given to a middle-class, private-counsel-represented criminal defendant as compared to the outcome given to an indigent, public-defender-represented criminal defendant with b) the outcome given to a middle-class, private-counsel-represented divorce litigant as compared to the outcome given to an indigent, unrepresented divorce litigant, the disparity is less pronounced in the criminal case than the family case.
But in a criminal case, the stakes are (or can be) much higher, and a more equitable system (as compared with civil cases) can therefore still have less equitable effects.
Maybe I’m being too glib (or just as likely, too ignorant) of what’s at stake in some civil cases.
This system sounds extremely inefficient and prone toward abuse and exploitation. It seems to me a tenant and landlord should be able to sign a contract which establishes terms which culminates in hasty and effiient civil trials.
This is generally what binding arbitration and mediation clauses are for.
I’m not opposed to binding arbitration and mediation but they get abused especially in contracts of adhesion.
Binding arbitration is great for parties of equal bargaining power like Google and Apple or even four partners founding a lawfirm in case of an acrimonious ending of said partnership*. They are not good for an average person signing a contract with a bigger entity whether a large corporation like AT and T or even a relatively large landlord. An individual landlord might be different.
*I’ve seen these happen. They are often more bitter than divorce because more money and assets are involved.
Although I don’t believe this is the usual case, I’ve seen states where every cause with allegations of fraud are subject to compulsory mediation.
For the Apples & Googles of the world, you might find interesting the Amejian v. Yahoo! Inc. case from Mass. That appellate decision came back right at three weeks ago.
It kind of tosses out the wrap-around agreements you see so much of with software.
Also justice, due process, and fairness matter much more being efficient or why have a justice system at all? Just let the party with the most money win!
All great points. First, let’s see where we agree. Relatively equal parties should have the ability to set arbitration and mediation clauses.
Where we disagree is that mediation and arbitration are unjust, unfair or not due process. If agreed to in advance they are indeed all three. Nor will the party with the most money always win, unless you have some kind of kangaroo court process.
We also disagree about the ability of parties with different degrees of bargaining power to benefit from arbitration and quick verdicts. I agree that there is a valid concept of extreme duress, and that it makes sense for courts to discourage such. To extend this to basic power disparities is counterproductive, irrational and demeaning though.
The greater the power disparity, the more the weaker party has to gain via the arbitrated transaction . You can’t just look at which party has most to lose, this is only half the relevant equation. The indirect effect of protecting the rights of the weaker party is often to discriminate against them to enter into positive sum contracts. It also will lokely lead to higher tents for these least likely to afford them. Penny wise and pound foolish.
As a compromise position, I would suggest that we consider institutions or arrangements which facilitate both options. For example, that landlords offer two rents. One with arbitration at a court agreed to by both parties, and another which offers both parties the right to a jury trial. Let the tenant choose the contract and the rent.
And remember, the poorer the client, the more they have to gain via the arbitration court, assuming it leads to lower rents and easier qualifications to get into the property.
There are many other ways which we could introduce choice into the system rather than forcing one size fits all values and situations thinking.
For all their virtues, arbitrations and mediations are not without cost. The whole point of my OP was that these transaction costs distort the justice system in practice away from its ideals. Tenants generally don’t have the money to pay for an arbitrator. In a typical residential eviction, it would be grossly unfair to ask a tenant to pay half an arbitrator’s retention just to try the case. (This, from a landlord’s lawyer.) If the landlord paid the entire arbitration cost, this would create a system too visibly biased in the landlord’s favor to be readily-accepted by a disappointed tenant losing at the end of the day.
If you could find an arbitrator who would take the case for free, right now, and get that decision implemented immediately, with fair process afforded to all sides, then you’d have a pretty damn good system, one better than anything I’ve ever come across. But that doesn’t mean the tenant would, or should, agree to it.
ADR is often a good way to achieve resolution in a lot of disputes. But there must be a compulsory process somewhere in the picture.
And it is the same thing with tort and many other cases.
A person might have a valid claim for tort, employment discrimination, fraud, and many other issues but they will not have the money to pay 1/2 of an arbitrator’s fees.
Where is Judge Judy in all this?
A bench trial, as you described, doesn’t seem like that big a problem. So we don’t need arbitration per se, we just need to avoid a jury trial. And a judge doesn’t have the same (appearance of) bias that an arbitrator being paid by only one party does.
The usual binding arbitration clause is “You agree to use the arbitrator of my choice from a firm whose services I use frequently.” Good thing there’s no potential for abuse there.
Mike is right about the standard arbitration clause. Also many big corporations “reserve the right” to litigate the issues that are important to them while offering no such equality to plaintiff’s who might sue them.
and the poorer the client, the more he stands to lose in freedom from illegal rental contracts.
When was the last time you rented? When was the last time you consulted an attorney before you signed a contract?
Again, the problem with mediators is “conflict of interest”
IIRC, the Seventh was never made applicable to the states; solely a federal right.
To come in on the other side, I think we are dealing with problems of numbers and biases.
There are probably plenty of ner’do well tenants but I also know plenty of stories of ner’do well landlords. I have a friend who got very sick because her landlord refused to deal with a frequently reported mold issue and she needed to sue for her compensation. I know plenty of absentee landlords who neglect their tenants in the hopes that the tenant moves out and they can raise the rent because the apartment is now in a hot and fashionable neighborhood or their is a tech housing boom. Or they want to convert the building into condo units and that they can sell out at 650,000 or more a unit.
I suppose a true believer of property rights would say any of the above is the right of the landlord and the tenant can leave and find a better place but my sympathy is with the tenant. I don’t think it is very honorable or correct to be a purposefully bad landlord in the hope of getting a tenant to leave. Especially if said tenant always paid the rent on time but maybe this is an outdated concept of honor and fair dealing.
Also I think you were being a bit too snide with the opposition and casting them as having insincere motives. I think many tenants rights lawyers are sincere in their motives but many might be shysters. As lawyers, I don’t think we should be negative to the opposition as a matter of professionalism. I support the adversarial system but one of the big negative side effects is that we tend to hate the other side. I also find it psychologically curious that we get wrapped up in the identities and causes of our clients so much. Corporate Defense lawyers hate Plaintiff lawyers and think we are all ambulance chasers. My friends who are prosecutors dislike criminal defense attorneys. My friends who are criminal defense attorneys dislike prosecutors and find them uptight, whiny, right-wing, etc.
If everyone deserves a lawyer is a basic tenant of American law than we should not get angry at lawyers for working on a particular case or side. We are all necessary.
I don’t have a problem with a tenant suing a slumlord. A landlord put on notice of actually uninhabitable conditions who refuses to do anything about those conditions ought to be sued and a tenant in that situation ought to have recourse to the courts and the ability to resist an eviction under such circumstances. I know one tenant’s defense lawyer who I admire quite a lot, who puts on good cases, and makes quite a lot of money going after the slumlords.
He doesn’t solicit perjury from his clients. He finds merit to his allegations before making them, and if an allegation is found to lack merit, he withdraws it.
A tenant who rips smoke detectors off the wall herself, then takes photographs of the now-exposed wiring, is not such a tenant. A lawyer who repeatedly puts such evidence out in court in dozens after dozens of cases must be suspected of having some degree of complicity in the creation of this evidence. There aren’t hundreds of landlords breaking in to rented homes at night and removing smoke detectors with screwdrivers: how does the landlord profit from removing smoke detectors?
But that’s getting in to the particular. I’m attempting to illustrate how the transaction costs of procedure are used to manipulate the result for advantage. “Justice” and “professionalism” have nothing to do with it.
I don’t deny that procedure can be used to manipulate the result for advantage.
The issue politically seems to be what one thinks whether the inefficiencies and negative externalities are worth it.
We don’t let landlords self-help in eviction. A lot of people might think that this is wrong because it allows unethical and/or late tenants take advantage in the way that you described above. However, I think that a better system might allow for a grace period of a few days for rents instead of a hard due on the first. This might allow more people to pay rent on time. There are also a lot of abuses stopped by not letting landlords evict on their own.
It seems to me that most political arguments end up being about which abuse is worse in various scenarios. This is a broad observation and not directed at you in particular. I can make that argument for almost all political arguments. We all have different definitions of what is and what is not a moral hazard.
” I think that a better system might allow for a grace period of a few days for rents instead of a hard due on the first. This might allow more people to pay rent on time.”
Good point. but have the first due date be earlier, so that the real one can hit when the mortgage comes due.
Honestly here, I don’t have a lot of sympathy for a landlord that absolutely has to have the rent check in hand to make his mortgage payment on time. Sounds like he’s under-capitalized to begin with. Was he seriously expecting to always and forever have a tenant handing him a check at the right moment? The property would never be vacant for a month or two between tenants?
I can see the case, however, that you’re stuck not cleaning up that mold this month because you’re spending your mold abatement money on getting a scofflaw tenant out of your other property.
The solution to that is you establish a renter’s rights to repair clause. If something is broken in a home, and you notify the landlord that the problem exists and nothing happens for N days (N dependent upon the thing that is broken), the tenant can fix it or replace it themselves and submit the receipt for equipment/materials in lieu of partial rent payment.
So if I have a broken toilet (broken sanitary facilities would qualify as a one day turnaround), and I provide the landlord with a report and they don’t fix it, I can fix it myself and submit the receipt to the landlord. I lose my time, but the landlord loses discretion as to the type of repair: if I replace the whole damn toilet when the gasket was the only thing that needed to be replaced, well… tough for the landlord, their property still gets a new toilet.
What a sensible solution.
Sadly, some repairs are too large for for it to work.
(This series of stories won a Pulitzer.)
Well, it certainly wouldn’t solve most problems. But it would light a fire, generally, under most moderate landlords.
And in the case where you have a landlord who has two pieces of property and they’re busy getting screwed by one tenant (as Burt describes), the other place’s problems can still be addressed to some degree.
I mean, I would feel bad if my landlord was scrambling to make their mortgage payment on two properties when some guy is milking them for $2500 to make them move out and they didn’t have enough cash to replace my refrigerator… but I still want a damn working refrigerator, if the refrigerator was included with the rental.
If the landlord can’t replace the fridge, at least giving the option to the renter to do it (and get a break on the rent) enables more amicable solutions than, “Hey, fix my damn fridge!”, “Someone will be over tomorrow or the next day…”
(that should have said, “all problems” not “most problems”)
Patrick,
… this may not be normally doable with a refridgerator, but fixing a stove might actually blow up the house (gas leak).
… there are reasons why we don’t have this law, even if it seems like a good plan.
There is something called the Implied Warranty of Habitability.
http://en.wikipedia.org/wiki/Implied_warranty#Habitability
However as Zic notes sometimes the repairs end up being too much for anyone to handle and there are still abusive slumlords. I’ve been very lucky with my landlords so far. My first landlords lived directly above me* and this meant that almost every problem I had was also their problem. They would call me and say that the heating is out and they are getting it fixed right away because they also suffered. My current landlords are a set of brothers who own a contracting business. They take pride in keeping things in good repair because they are craftsmen. They feel like it would look poorly upon them to do otherwise.
*It is fairly common for families to buy a rowhouse in Brooklyn and turn one or two floors into rentable apartments and live in a duplex or triplex in the same building because it is still one house, we shared the same pipes and water heater, etc.
If the repairs are too much for anybody to handle, it’s not improbable that they’re also too much for the property owner to handle. In which case, moving out is the most sensible solution for the renter.
I mean, if your landlord is overcommitted and can’t do an asbestos abatement (for example), they can’t do it. You can’t force someone to have money they don’t have, right?
Slumlords are a separate issue, I’d argue. They exist, but the right way to tackle slumlords is going to be a different solution than the sort of stuff that’s going to handle the majority of landlord-renter issues.
“I’m actively a terrible person” is a harder problem to solve (and in any event, a *different* problem to solve) than “I’m not a great landlord”.
Patrick,
True but this raises questions of whether a landlord/slumlord let the problems slide for too long intentionally or at least out of negligence.
I suppose we are arguing about how many of these people are just suck landlords and how many are actively terrible people.
I’d guess that the majority of them (even see Will’s recent posts regarding his former terrible landlord) are more “terrible landlords” than “terrible people”.
Of course, that doesn’t say anything about how much relative *damage* the actual terrible people can do…
I’d guess that the majority of them … are more “terrible landlords” than “terrible people”.
I think you’re underestimating the importance of moral condemnation.
James,
I think that most of them are terrible landlords over terrible people but people still need protection from terrible landlords.
I personally have no desire to be a landlord because it seems like a serious responsibility and life is complicated enough as is. However I know lots of people who seem to think that being a landlord is a great and easy money sort of situation. They seem to simply see it as getting X amount extra every month and are not putting any thought into upkeep of the apartments and stuff like that. This perplexes me. How can people not think of the upkeep for their apartments or what to do when a water heater breaks or tenants begin complaining about termites, etc.?
but people still need protection from terrible landlords.
Did I argue differently?
But likewise we could argue about how many people are just suck tenants and how many are actively terrible people. My cousin inherited her dad’s house, and already owning her own, she rented it out. The first tenants burned a big hole the carpet of the living room. My wife and I rent out a home we can’t currently sell without taking a loss. Our tenant frequently fails to pay rent, so we’re still covering a substantial part of the mortgage out of our pocket. But he takes good care of the place (mows the lawn, doesn’t wreck the place, does his own repairs), does pay the lot rent monthly (it’s in a manufactured home community) and finding another tenant could take us months. Our best bet for the moment, given market conditions, is to stick with him, but it means he has us by the short hairs (whether he pays his rent or not this summer may determine whether I can replace the rotting sections of the century+ old siding on my house and add decent insulation so the winter wind doesn’t blow through).
He is emphatically not a terrible person, quite a good guy in fact, but flaky and not good at managing his money. But we’re still the ones getting taken advantage of. I have no sympathy for lousy landlords, but I don’t distinguish them from lousy tenants. To put more focus on either group over the other seems to me to throw out the window the idea of justice as blind to a person’s position.
“I know plenty of absentee landlords who neglect their tenants in the hopes that the tenant moves out and they can raise the rent because the apartment is now in a hot and fashionable neighborhood or their is a tech housing boom. Or they want to convert the building into condo units and that they can sell out at 650,000 or more a unit.”
Is there a right, implied or otherwise, that a tenant be offered a new lease when an old one is up? If not, why can’t the landlord simply wait for the lease term to be up, opt not to renew with the current tenant, and then rent to a new one, sell, or fill the apartment with cats?
Rent control, perhaps?
It’s a story old as time. Hoping to get something for nothing, leftists pass a law aimed at screwing over landlords, employers, shareholders, etc. Rather than passively accept the screwing, the targets of the law find whatever loopholes they can to minimize it. Said leftists howl with outrage at the predictable consequences of their own actions.
Well, I dunno about all that. What I’m asking is that, if I sign a 12-month lease, and that 12 months elapse, is the landlord under any obligation to offer me a new lease?
It may vary from state to state and locality to locality. I’ve had my rent increased by 20%, and I’ve had friends who had to move out at the end of the lease due to the apartment being converted to a condominium. So such restrictions are definitely not universal.
It seems logical to me that once a lease has expired, neither party is bound to one another. Of course, this must be balanced. My wife (then my girlfriend) got screwed when she didn’t give proper notice (which I think was 4 months, indicated by language buried deep inside the lease) about leaving after a lease expired and was stuck paying for those months despite not residing there until a new tenant was found. Now, she signed the contract willingly if ignorantly, so she didn’t have much, if any, leg to stand on with regards to opposing. I don’t know if she specifically have to initial that section. As a general rule, I struggle with implied consent. But I’d rather see it be such that any extension beyond the original term of the lease being explicitly and voluntarily agreed to by both parties, else there is no agreement beyond the original term.
Kazzy,
To the extent that I understand the situation in Chicago and the lease my wife and I (we got the legal marriage done yesterday!) signed when we moved in together 2 1/2 years ago, the default assumption is that once the lease expires, the rental agreement goes to a month-to-month agreement at the same conditions. Under the month-to-month, the landlord or the tenant can opt out or renegotiate the terms (e.g., raise the rent, quit the habitation, throw the bums out) with one month’s notice.
I don’t know how much of a default this is. The lease we signed was pretty much a standard-issue lease that I imagine most non-corporate landlords have their tenants sign. (We rent one floor of a four-level house, with the landlord on the first floor.) I don’t know if there are situations where that default does not apply.
PC,
Thanks. To me, that seems to be the way it ought to be. My girlfriend was renting from a large corporate group (Avalon) so it is not surprising they built in all sorts of protections for themselves.
Suppose you own a building with 15 units. Each unit has one or more tenants. They all have different leases that started at different times.
Let’s say you want to turn all 15 units in your building into condos or some developer approached you about selling the entire building because said developer wants to knock it down and build something else.
Isn’t easier too just evict everyone at once and put the entire building up for sale as condos at the same time? Most landlords would probably prefer that over anything else. I’ve heard of cases where there is one or so renters in a building of condos but those are very rare.
There is an act called the Ellis Act which allows landlords to evict everyone at once and turn buildings into condos.
http://en.wikipedia.org/wiki/Ellis_Act
Well, worst case, you have to wait 11 extra months to do the deal to get everyone out. In the meantime, you either eat the lost rent on the empty units as they come up or you offer leases to the tenants with shorter terms, until that last remaining term elapses. Or you buy people out.
Not around here, it isn’t. public supported housing is different, obviously.
My very long comment was meant to respond to Burt’s original post, not your comment. I hit the wrong reply button.
I’m not territorial like that, but thank you for your consideration.
California Constitution, Article I, Section 16, may also have something to do with the state of affairs I portray in the OP.
That’s what I was thinking as well.
Most states have some type of Bill of Rights-type of language for the state constitutions, the same as most of the procedures are modeled after the federal procedures (more or less).
Some are really out there though.
Illinois still has a fact pleading standard, rather than a notice pleading.
Thinking about it, what strikes me as really odd is the merger of the courts of law and equity in the federal system, and the fact that so many states still maintain chancery courts.
I’m at a loss as to why.
Is a lawyer’s duty to serve his/her client? Or to serve justice?
If a tenant approaches a lawyer and says, “I haven’t paid my rent because I’m broke. The landlord has generally be a good one and has fulfilled his end of the bargain. But there are a few nits I could pick. Let’s use those to sue him,” should that lawyer take the case and try to get as much for his client or possible? Or should he say, “Sounds like you should accept your eviction notice and comply”?
1). You make certain assumptions about Justice which simply aren’t allowed. Determining the rights of the parties is the role of the court.
“I don’t have the money right now, even though the bill is due.” Where is the justice in that?
2). In my understanding, an attorney is bound to their client, for the most part.
From what I’ve seen, those are typically Supreme Court Rules for the various states.
There are limitations.
An attorney can be sanctioned by the court. Rule 11 sanctions are allotted to counsel, not the parties.
Sometimes, attorney-client privilege is statutorily revoked; as is the case with the federal witness tampering / retaliation statutes. I haven’t seen any, but I’m sure that many states have similar arrangements.
The answer is both. All lawyers, including ones that represent the government are supposed to put forth a zealous defense of their client. This is why prosecutors often make arguments that are kind of to very out there in order to secure a conviction. At the same time, every lawyer is bound by certain ethical considerations. Prosecutors are supposed to reveal evidence favorable to a defendant to the defendant’s lawyer. Lawyers who learn that their client is lying are supposed to withdraw from a profession.
A lot of the weirdness in the legal business come from a long period of time when lawyers where in denial that they were businesspeople and presented themselves as noble professionals above the petty concerns of trade. Blame the British class system for this one. Law was one of the few jobs that peers and gentry could do but they had to adopt certain practices so nobody would think that they were in trade. American lawyers adopted a lot of this attitude after Independence. Lawyers weren’t even allowed to advertise till 1980.
I think you mean representation and not presentation. 🙂
Also were, not where 😉
But spot on. A difference in the American system though is that lawyers can pick their clients. IIRC Britain did or still does require lawyers to represent everyone or almost everyone who walks through their doors.
Really? Last I heard is that the UK has largely abandoned the distinction between barristers and solicitors and are a bit more attuned to the business aspects of a legal career than the American bar associations.
My understanding was that clients solicitors may decline to represent particular clients, particularly for conflict purposes. The barristers are then retained by the solicitors should the matter progress to trial.
But who knows, maybe we could inspire an actual UK lawyer to walk us through the process.
Burt, I’ve been in occassionally contact with younger UK lawyers and they told me that the United Kingdom is moving to get rid of the distinction between solicitors and barristers by creating a solcitor-advocate who could do both jobs. Newer lawyers are strongly encouraged to go this route.
Is a lawyer’s duty to
servezealously advocate her client’s interests and comply with not-illegal and not-immoral instructions from her client? Yes.Is a lawyer’s duty to
serve justicescrupulously represent the truth and comply with all Constitutionally valid laws in so doing? Yes.What about when the two are in conflict? They aren’t. Ever.
In the case of the hypothetical tenant, the lawyer is free to say to the prospective client, “Sorry, I don’t want to be your lawyer.”
So the lawyers representing clients who have not held up their end of the contract and are demanding money from those who they have breached… they’re serving justice?
If there is a non-frivolous argument supported by at least colorable facts which can be made for that result, then, yes.
Oi… your legalese is losing me. What is the threshold for frivolousness? What is a colorable fact?
“Non-frivolous”: roughly, passes the giggle test.
“Colorable”: having at least a minimal congruence with reality.
An eviction case is a civil trial. At stake is more than twenty dollars’ worth of value.
How so? I assume the landlord doesn’t care about recovering rent (blood from a stone, plus it’s only a month’s rent) so much as getting the current tenant out so he can rent it to someone who will pay rent. So technically there shouldn’t be anything of value at stake at all. The tenant can’t stay, but he doesn’t have to pay rent, so it should be a wash.
If the landlord could avoid a jury trial by not trying to recover rent, then it seems like a no-brainer to do so. So I assume that’s not possible—that the defendant in any eviction proceeding can request a jury trial. Is that correct? On what grounds?
Possibly by claiming damages against the landlord? I mean, the entire point is to get a settlement out of the landlord, so presumably they’re claiming damages.
That would be an incorrect assumption. About half of my clients care intensely about recovering the rent, even after I counsel them that the reason we’re in court is that the tenant doesn’t have any money.
Because the Constitution and the Legislature and the courts say so. The particular tenants’ lawyers I was thinking of when I wrote the OP are, shall we say, somewhat casual about their efforts to identify substantial facts supporting their claimed defenses. If you know what I’m saying.
We bought a 3-flat (w/ basement apt) with my sister and her husband, living in 2 apartments and renting out the other two. The best advice the lawyer gave us: “If a tenant is late on the rent, talk to him/her in person. Describe the eviction process and show the already filled out paperwork. Also have $500 in cash, which we promise to give to them if they’re out of the apartment in 3 days. ” We never had do evict anyone, but having the conversation beforehand (What!! you mean we have to *give* him money when he already *owes* rent??!!??) and really understanding that the goal is to get the tenant out as quickly and painlessly as possible. We’ve had really great tenants over the last 24 years. I think treating people as decent and honest until they prove themselves not, helps.
Note: In Chicago, if a lease expires without being renewed, it automatically converts to month-to-month. At that point, either party can give 30 days notice. I’ve never heard of a jury trial for evictions, but the judges are pretty lenient, especially in the winter.
Angela,
I should have read this comment before I responded to Kazzy above. (I’m a renter in Chicago, and the reversion to month-to-month is my understanding of how things work.)
Mr. Likko, I appreciate you choosing my BIG question and discussing this aspect of it. I did not intend this as a trick question, nor did I ask it only to focus on the rich. I expect that the question was a little too BIG to untangle and analyze all of the pieces of it in one go.
I’m just not sure what you mean by Capitalistic forms of legal representation? What would you suggest as an alternative? Would all lawyers be government employees and handle all lawsuits even if it does not involve the state like a car accident or divorce proceeding or probabte matter?
As I said above, I think a lot of lawyers go into law school with a heavy interest towards one particular side. We also have an adversarial system in the US over the Inquisitional system found in many other countries (usually non-Anglo). In an inquisitional system, the judges also act as independent fact-finders and conduct their own investigations. In the Adversarial system, judges and juries are merely decides of fact and/or law, they are not supposed to do independent investigations. The lawyers duke it out for the truth. Both versions have merits and flaws.
I think the adversarial system might distort how lawyers treat the opposition and cast the worse intentions on them but I am not sure how different it would be in the Inquisitional system. Zealous advocacy seems to be a universal requirement among lawyers.
I think Capitalistic representation does influence tactics though. Most if not all plaintiff firms (who represent individuals in cases like personal injury, consumer protection/fraud, antitrust, employment discrimination) operate on a contingency fee. This means that they only get paid if their client collects money damages. It also means that they pay the costs of the case upfront and need to be more judicious with their money. Plaintiff’s firms might win a huge amount of money for a client (and themselves) but only after years of litigation at times. On the other hand, corporate defense firms tend to charge clients by the billable hour.
This creates different incentives and tactics. A plaintiff’s lawyer is going to try to be very careful and efficient to save time and money. A defense firm is going to put up a million procedural hurdles because it can destroy cause the plaintiff’s firm to rack up costs while allowing them to charge a lot of billable hours. Plaintiff’s firms tend to be small. A lot of defense firms have hundreds of lawyers across the nation and globe. Some have thousands.
My heart is with the plaintiff so I might be casting the David v. Goliath thing a bit much. Plaintiff lawyers can be very clever and crafty at getting around procedural hurdles thrown by the defense. We are not completely at sea. However there have probably been many times when a corporate defense firm drowned a plaintiff firm in discovery and court filings.
Also the billable hour might be over, a lot of corporations started bucking against it right after the fiscal crisis. Now more corporations are trying to get representation on a flat fee basis.
I’m just not sure what you mean by Capitalistic forms of legal representation?
My thinking began when talking to some friends. We agreed that all of our votes are equal, in that they count for the same amount. We also agreed that all of our voices are not equal, in that those with more money can have a louder voice. We also agreed that our laws and justice are not equal.
For many reasons.
A rich person can hire a more expensive (and, presumably, better lawyer). A poor person cannot. As you note (and I noted in the other thread where I asked the question initially), a rich person/corporation can bury the defense with costs. Others pointed out that the government is the richest of rich people, and can bury a rich person or corporation because they have deeper pockets. I’d argue that a rich person or corporation would just purchase the necessary Presidents, Senators and/or Representatives to have the suit stopped or the law changed. There’s plenty of examples of this, so I don’t give much credence to the big bad government being the worst offender in this inequality.
What would you suggest as an alternative?
I have no idea. The question was asked to hear what Mr. Likko (and Mr. Thompson, initially) thought about how money corrupts the law and justice.
The only thing we came up with was that everyone was assigned a lawyer randomly, and paid for that lawyer according to their means (poor person pays less, rich person pays more). Of course, there are problems with this. But, there are a lot of problems with what we currently have, as well.
We claim Equality under the law, except that it isn’t. Those with more money are treated differently by the law than those with less money, because they can hire better (read: more expensive) lawyers.
There’s a couple of things at play here. The first is identifying who the “better” lawyers are. Grades in law school are one indication, but not a dispositive one. Financial success in practicing law is another indication, but again not a dispositive one. Cleverness is hard to quantify and harder to stratify. So is charisma — real life isn’t a role-playing game where we roll 3d6 to determine how charismatic we are. In real life, charisma is a combination of innate characteristics, study, and experience. Industry is easier to quantify in terms of hours worked, but again industry is not the same thing as being a skilled attorney. Skilled attorneys tend to accomplish tasks in less time than unskilled ones. What about rate? Rate is a reflection of demand, but just as with wine, price alone is not going to tell you how good the product is that you’re buying until you actually consume it.
How would you pick between, say, Mark Thompson and myself? Is he a better lawyer than I, or I better than he? How can you tell? For that matter, how can we tell? Even if we litigate against one another, all the way to a verdict, we can tell who won and who lost, but winning and losing in dictated in large part by the cards in the hand you’re dealt. If you hire me and I litigate against Mark and I wind up winning, maybe Mark was a fantastically skilled lawyer for his client and I’m only mediocre, but your case just had really good facts such that even a mediocre lawyer could win with them.
Another factor is the “overload the other side with work” issue. This is possible — up to a point. There is an upper limit to the amount of work that can be generated by a lawsuit. Some of that varies with the nature of the suit, but there is a ceiling. In most cases, yes, you can put together a ton of bricks to drop on the other side. But generally, you can only do that once, maybe twice. If 2,000 pounds of bricks isn’t enough to make the other side fold its tent, then you’d better be ready for a return volley, and it’s going to take you quite a lot of time to put together another assault like that — by then, you may have come up to your trial date.
And the government theoretically has unlimited resources that it can bring to bear on a case. In practice government agencies and prosecutorial offices have budgets. They pick and choose the cases in which they drop the entire 2,000 pounds of bricks.
The thing is, everyone can point to legitimate problems with new approaches. Nothing is perfect. The question is, are those problems better or worse than the problems facing our current system? The status quo is often self-perpetuating because it best serves those in position to dictate its terms. That does not mean it is best.
Well, my friends and I were speaking broadly, and a lot of the conversation was about criminal law and public defenders. Things like:
“Rich people never do a lick of time, cause they buy better lawyers than those damn PDs like my cousin had!”
“Yeah, OJ only got off cause he a black man with money!!”
“Even a black man with money ain’t gonna get much if he ain’t famous!”
“Ni-CLANG, the only black people with money are athletes, movie stars and criminals! Ain’t you heard!?!”
Regarding the determination of who is “better”, here was our thinking:
– Either the market works as advertised, and those lawyers that charge more money are “better” than those who charge less; and Public Defenders charge nothing and therefore are worth nothing.
– Or, the market doesn’t work as advertised, which means that Capitalism isn’t working as some are claiming that it works, in which case we have much bigger problems than inequality in legal representation.
I would further this and say that the differences in quality (“better”) and pay is not precise, but works in general ways. If I’m a poor person and can only afford to pay a lawyer minimum wage, I can probably assume that I’m not getting very good representation. If I’m a rich person and can afford to pay any amount ($1000 per hour, $10,000 per hour), I may not get the very very best lawyer, but I’ll probably get in the top 10%.
The difference in the means to represent your interests within the law looks very large to me and my friends. YMMV.
And, as I said above, and Kazzy notes very well, there are certainly problems with any solution, but we already have some gigantic problems as it currently is. That does not mean it is best (h/t Kazzy).
You show one example in the OP of the poor getting the better of things because Capitalism (though, I would argue that it is the lawyers doing what you describe that are the problem, not the poor who are getting evicted). I think it would be safe to say that I could find hundreds of examples of the poor getting the worse of things because Capitalism, for each example of the poor getting the better of things.
Regardless of all of this, I think lawyers should be able to do what you describe. If it happens to enough people, or enough powerful people, then the laws will change. But, it only changes when the rich and powerful are penalized with the same laws in the exact same ways.
Jonathan,
Not true. There are plenty of rich people who do time like Bernie Madoff and I think think of rich people accused of violent crimes who did or are doing time.
I know a lot of PDs. These people are true believers. They want to help keep the system honest and fight the good fight for people who need help.
Yes. Of course, we were exaggerating (they’re a very exaggerating and musical people, aren’t they Mortimer?) when we said that no rich people go to jail. I think our focus was on the number of rich people who get convicted (and what their sentencing is) compared to the number of poor people.
I agree that many PDs are true believers and that they are trying to help.
What I disagree with is that the quality of representation you receive from a PD can be (and usually is) drastically lower than the quality you receive from a highly paid attorney. This means that Capitalism is making our system of laws unfair to those who have less money. It is “baked in” you might say, as Mr. Likko points out (“Our legal system IS capitalism and without our legal system capitalism is not possible.”).
Also, Mr. NewDealer, my name is John Howard Griffin (or JHG, or “The Sheriff is Near!”), not Jonathan, assuming your comment was directed at me.
The most recent trial I was a juror on (as of tonight; it happens that I have jury duty tomorrow), featured a defense attorney who’s very well known in the Bay Area. It was an absolute pleasure to watch him work. In particular his cross-examination was brilliant, both clear and incisive, often getting witnesses to admit damaging facts they were trying to downplay while not being in any way rude. But he still lost, because his client was obviously as guilty as hell.
Mr. Schilling, certainly hiring a better (more expensive) lawyer does not guarantee success, as your example shows. However, not being able to hire a better (more expensive) lawyer rarely (if ever) increases one’s chances* for a verdict in one’s favor, IMO.
* increases the chances to a point greater than the chances you would have with a better (more expensive) lawyer
You know, Burt, not to put too fine a point on it, but this entire scenario you outline is only possible because of this paragraph:
What you’re charging for a jury trial is the equivalent of three to five months worth of rent. It’s the cost of legal representation that gives the tenant the upper hand here.
Then there’s the business of demanding a tenant to move Immediately!! if they don’t have the rent money Today!! If a tenant doesn’t have the money to pay rent (TODAY!!) then they sure as hell don’t have the money to find a new place to stay and move there (TOMORROW!!).
So the tenant doesn’t really have a choice because they don’t have the means to meet either demand of the landlord (pay rent or move), and the landlord doesn’t have much choice, or at least nothing good, because of the cost of legal representation.
Look… I don’t mean this personally because you seem like a decent sort of guy. But $300 is more than I make in a whole day and I make more than the median income according to the IRS. The law is supposed to treat us all equally but the price of admission seems a bit steep to me.
$300 per billable hour doesn’t translate to a $300 hourly wage. The Internet says that it’s typical for lawyers to have 2/3 of their total working time as billable hours. And from that you have to pay rent, marketing expenses, support staff (or are their hours billed separately?), and whatever other expenses law firms have.
Legal services are cartelized, and private-sector lawyers are somewhat overpaid as a result, but not nearly to the extent that you might infer from the fact that they bill $300/hour.
That may or may not be in this case so I’d rather hear from Burt since he said, “If I sold my time at the market rate of $300 an hour…”
My best friend from high school is a lawyer with a practice in Idaho. As far as I know he has no support staff and his office is in his home, so if anything that’s sort of a negative expense (deduct part of your rent or mortgage as business expense).
The question asked how money distorts the justice system. So I gave an example.
If $5,000 seems too steep, then what fee ought a lawyer charge for a jury trial? Bear in mind, these things take three to four entire days of my schedule, and another full day to prepare, and I have to reschedule all of my other work to accommodate it.
I do have competitors who charge less for this service. They have overheads closer to that described for your friend. They get less work overall than I do, in no small part because the capacity for work just isn’t there without the support.
My typical client has sufficient capital that she can float the mortgage for a few months. And she feels compassionately for the tenant who has hit a problem like a job loss or a divorce or an (as-portrayed) bureaucratic snafu. She gets persuaded to use that money to give the tenant a break and get her act together. If the tenant goes get her act together and catches up on the rent, well, I never see that case. No landlord has ever called me up and said “My tenant was late on March’s rent but I cut her some slack and now it’s June and she’s all caught up and paying on time again.”
When does compassion wane and self-interest take over? How strictly ought the landlord to enforce the rent? Cut the tenant a break for one month, two months, three months… The landlord floats the mortgage for ‘x’ time, and the amount of money needed for the tenant to get it together quickly accumulates to an impossible level. Compassion in the short run yields, frequently if not inevitably, a bigger problem to solve down the road.
Put another way — your employer comes to you on payday and says, “We’ve been having some cash flow problems; a customer is disputing our invoices and a vendor took us to court, yadda yadda yadda. Can you work with us?” How many late paychecks, partial paychecks, and bounced paychecks will you tolerate before you report the employer to the Labor Board? After all, you’re supposed to be saving a portion of every paycheck, the same way a landlord is supposed to be adequately capitalized before going in to the residential rental property business.
As I see it, asking the landlord to use her capital to help the tenant solve the tenant’s problems is the same proposition as you using your savings to help the employer solve its problem. It’s your money, not theirs, and it’s being kept so as to solve your own problems, not someone else’s. The period of time for which I have some sort of a moral obligation or a relationship-goodwill obligation to accommodate your problems may not be zero, but it isn’t particularly high, either.
Burt, I don’t want to fight with you. You should charge whatever the hell the going rate is and/or whatever the hell you can get away with. Free market, yay! But that doesn’t change the fact that your rate for a jury trial is equal to something like five months rent (per your example). That’s a parameter that affects your client’s decision in a game-theoretical fashion. You can’t point to a fact such as the tenant’s right to a jury trial as a cause of this scenario without also acknowledging the fact that your charges for a jury trial are sorta steep by most people’s standards.
Look, this is not the place to go into it in detail, but for about the fifth or sixth time here at the League I feel the need to point out that, according to BLS statistics, the cost of legal services has increased at exactly the same rate as healthcare for the last forty years. And, in the case of healthcare, that excess price inflation–roughly 2 1/2 times the overall inflation rate–is considered to be a huge, fishing crisis of Biblical proportions. By my quick calculations, if the cost of legal services had only risen to match inflation over that period, your $300/hr rate would be closer to $75/hr and that jury trial would cost closer to $1250. And that, my friend, would definitely change the game-theoretical calculations substantially, heh? In fact, this whole tenant-getting-one-over-on-the-landlord scenario wouldn’t even really be possible.
Finally, you’re leaving out a crucial detail in your scenario. I’ve never lived on the west coast so maybe the customs are different there, but I did spend my entire adult life until about five years ago as a renter. And most places I rented required first month, last month, and security deposit (usually about another month’s rent) to move in. Which implies that when your client is coming to you complaining that the tenant hasn’t paid the rent and oh-my-god-how-am-I-gonna-make-the-mortgage he’s actually sitting on at least one and more likely two months worth of the tenant’s money in an escrow account. Or at least he’s supposed to have that money in escrow.
Which means instead of dropping the eviction hammer on day 5, the landlord could demand that the tenant move out by the end of the month. Otherwise, what the hell is the point of demanding the last month’s rent up front anyway? I don’t know anyone that could get their shit together to move in three days even if they’re sitting on a pile of cash. But thirty days is a lot more doable.
It’s not about compassion. The landlord protects himself upfront with the first/last/secdep business. It also builds a bit of leeway into the system so that if the tenant does run into trouble the relationship can be terminated in a more reasonable manner, albeit one that doesn’t involve your law firm.
I’m not expert, but when I rented, I remember being explicitly told that the security deposit could not be retained over unpaid rent. Nor could it be used in lieu of a rent payment (i.e., “Just keep the security deposit and I won’t pay June’s rent.”). It needed to be treated as completely separate from rent.
That’s why I spoke of first month’s/last month’s/security deposit to move in. That would be $3k on a $1k/month rental. Now not every landlord requires all that but many do. And if they don’t…? Well, that’s kind of their fault now isn’t it?
And I’m not suggesting that the sec dep be used for rent. Normally, the last month’s rent would be used so the tenant doesn’t have to pay rent that last month anyway. It’s sort of nice actually, cause once you have that in the can it makes it a lot easier to move at the end of your lease.
At least in California, Kazzy’s description is right. Security deposit and rent are different pots of money, cannot be commingled without landlord and tenant’s joint consent, and ideally are never commingled at all.
Of course, not all landlords make prudent business decisions. A set of landlords made bad business decisions and have to hire lawyers to clean up the repercussions of those bad decisions. If all landlords engaged in best practices all the time, the world might be a better place, I suppose. But there would still be a need for evictions.
I don’t want to fight with you, either, Rod and as far as I’m concerned this isn’t a fight. I like you a lot, man. Maybe there’s a disagreement, but maybe not even that. After all, you said it yourself: “It’s the cost of legal representation that gives the tenant the upper hand here”; “[t]hat’s a parameter that affects your client’s decision in a game-theoretical fashion.” I agree with you that my fees distort the result. Which is exactly the sort of thing that JHG asked about in the original question, or at least it was what I thought he was asking about: how does money distort justice?
Some other lawyer with a different sort of practice and a different set of experiences than mine would find some other example of that concept. I doubt, though, that any lawyer would have to think real long to come up with an example of money getting in the way of justice.
Now, I realize that to some extent we’re spinning off into talking about landlords and tenants. To the extent my fees are relevant to landlords having problems to which they must accept substandard solutions, well, I don’t apologize for charging what I charge. I don’t want my clients to take these cases to a jury trial. Even if they win, they lose; it’s throwing good money after bad. And it’s work I’d frankly rather not do — there’s other kinds of work I can do that interest me more.
With all that said, I don’t follow your math. How do legal fees of $300 an hour increase at two and a half times the rate of inflation get to $75 an hour? That doesn’t look like an 8% a year increase, it looks like a 75% rate cut. Clearly, I’ve misunderstood you; could you try explaining again what you were referring to?
Rod’s saying that $300/hr is the result of costs increasing at 2.5 x inflation, and that if they had risen at only 1.0 x inflation the current cost would be merely $75/hr .
That math doesn’t work out either according to the BLS inflation calculator. Unless you go back a long, long time. We can, however, agree that attorney’s fees are very expensive.
Let’s see: Rod said “over the past 40 years”. According to the BLS calculator at http://www.bls.gov/data/inflation_calculator.htm, $1 in 1973 is about $5.24 now. That’s an annual inflation rate of 4.2%. If you double average inflation over that period to 8.4%, instead of $5.24, you’d have $25.18, or about 4.8 times as much. So the inflation calculation supports $75 vs. $300. The question is whether attorney fees were only about $15/hour back in 1973.
I can’t speak to that from personal experience. In 1998 I charged insurance companies $110 an hour, with the understanding that this was a “bulk rate” so in exchange for lower fees my fledgling firm would get a lot of work. Of course that was also before I had 15 year’s experience under my belt, too.