The mission of the American Bar Association’s Committee on the Delivery of Legal Services is to make courts and the justice system more accessible to everyone. These days, the Committee’s work has become exponentially more difficult because, at the same time more and more individuals lack the income and resources necessary to hire lawyers, courts – including courts in Connecticut – are increasingly underfunded. Last summer, Connecticut’s Chief Administrative Judge, Barbara Quinn, made the scope of the crisis abundantly clear in her report to the legislature. In it, Judge Quinn outlined a myriad of across-the-board cutbacks made necessary by severe cuts in the budget of the judiciary affecting every facet of operations in the State’s courthouses.
This means that judges are increasingly overworked, courtrooms are increasingly understaffed, and the pressure to settle or streamline cases is stronger than ever. Rambling, unfocused hearings in which litigants are unprepared and proper procedural groundwork has not been laid, waste precious court time and cannot be accommodated. While Connecticut, like most states, makes an effort to provide document preparation and other basic services to support to self-represented litigants, those programs are also stretched to the limit. Law libraries in many parts of the state, once a front-line resource for pro se litigants have closed due to budget cuts making matters even worse.
Faced with this reality across the country, the ABA Committee on the Delivery of Legal Services has made recommendations designed to make it easier for lawyers to “unbundle” their services in order to make legal support and assistance more available to individuals who cannot afford to retain a lawyer to provide comprehensive representation in their cases.
In the course of representing a client in any type of litigation, lawyers perform a wide variety of services. These include drafting and serving pleadings, collecting evidence, analysing cases and setting goals, drafting settlement offers, developing trial strategy, writing briefs, and arguing on behalf of clients at hearings and trials.
When a client retains a lawyer to prosecute or defend a lawsuit, the lawyer typically files a document known as an appearance, and thereafter becomes responsible for performing any and all of the functions necessary to bring the case to a conclusion. As part of that process, the lawyer remains available to consult with the client at all steps of the procedure and to provide advice and guidance whenever it is needed. The lawyer also becomes responsible for keeping the client informed about new developments in the case, and of upcoming events.
Because the scope of full representation is so broad and comprehensive, lawyers in most types of cases — with the exception of injury, accident and malpractice cases — charge clients a retainer designed to cover some or all of the anticipated time and expense that will be devoted to the case.
For too many people in this bad economy, the cost of full representation may be out of reach. For those individuals, the choices are limited. They may choose not to participate at all in the litigation or may enter a so-called pro se appearance, signalling to the court that they will be representing themselves. At a minimum, this ensures that they will receive notice of scheduled hearings and other events in their cases.
The unbundling of legal services is designed to provide a middle ground for those individuals. The growth of so-called virtual law offices is part of this trend. Many of these businesses are little more than document preparation services while others offer broader and more skilled support.
Brick and mortar law firms are increasingly willing to offer limited services to clients who must represent themselves in court. The most straightforward unbundled service is document preparation at the commencement of a case. While it may be convenient to pay for such service, the bare-bones documents needed to start a lawsuit are generally available at no cost through each state’s official judicial website or at the office of the appropriate court clerk.
The more difficult part of any case comes after the initial papers have been filed. Unbundled services beyond the opening salvos of a case include case analysis, preparation of litigation checklists, procedural guidance, ghostwriting of legal memoranda and briefs, review of proposed agreements, preparation of subpoenas and document requests, and coaching in preparation for depositions or hearings. None of these services are generally available through court-sponsored pro-se assistance programs since they fall under the category of legal advice. Under existing rules, court personnel including pro-se assistants, clerks, judges, and others are precluded from offering legal advice of any kind. Mere document preparation assistance does not cross that line, but more substantive assistance does.
Unfortunately, most states still do not allow lawyers to file so-called “limited appearances” that would allow them to argue at a hearing on behalf of a client without committing to full ongoing involvement in the case, so court appearances generally cannot be part of the unbundled services lawyers are able to offer.
For those who cannot afford to have a lawyer speak for them in court, it is still worthwhile to seek out experienced counsel who will meet with them to perform some or all of the other services that go into case preparation and development. By unbundling those services, lawyers can perform specific tasks on a flat fee or hourly basis depending on the needs and budget of the client.
In the past, lawyers have been reluctant to offer services related to litigation on a piecemeal basis. This is because no amount of quality document preparation or coaching can guarantee that the client will achieve satisfactory results. For that reason lawyers worry that based on their limited involvement they may be blamed for difficulties or setbacks — whether forseeable or not — that the client might later encounter. Now, though, with the growing support of both the bench and bar oversight bodies, lawyers have become more willing to work with clients in limited capacities as long as those limits are carefully outlined in an appropriate engagement letter.
For anyone otherwise facing a lawsuit alone, where the stakes can be high, unbundled legal services can be a life-changing investment.