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Bar News - January 5, 2007

President’s Perspective: A Response to Foster’s Editorial on ‘A la Carte Lawyering’



An editorial in the Dec. 3, 2006 edition of Foster’s Daily Democrat applauded the New Hampshire Supreme Court’s recent adoption of rules making it easier for lawyers to represent clients for only part of a case, a practice known as “unbundling or “a la carte” lawyering. These new rules allow clients to hire a lawyer for limited tasks only, such as drafting a pleading or representing someone at a crucial hearing. These arrangements can reduce the cost of legal fees for clients while still allowing them to benefit from the advice and services of a lawyer.


The Bar Association has supported the Supreme Court’s recent efforts to seek innovative solutions to reduce the cost of legal services; in fact, these “unbundling” rules were the product of a lot of work by Bar Association volunteers and the Bar Association’s Pro Bono Referral Program.                       

The Foster’s editorial rightly points out that having a lawyer when you go to court is a good idea. In most cases, “going it alone” can be ill-advised. However, the Foster’s editorial also noted that “some in the judiciary and their offices seem to resent non-lawyers in court” and adds, “Why is unclear.” This seems to suggest that the Court’s concerns over self-representation are somehow peevish. The concerns are much more substantial. 


Judges know that when individuals go to court pro se, few things come easily or go smoothly. Pro se litigants are unfamiliar with the procedures of the court; their resulting mistakes often lead to long and expensive delays for everyone, including other parties waiting to have their cases heard. Sometimes pro se litigants realize that their willingness to proceed without a lawyer can cause expense to their opponents who are represented by a lawyer.  In short, pro se litigants may save themselves money, but they often put the state and their opponents to great expense, while unnecessarily delaying the resolution of their own cases.


Our present trial system is really a “user pays” system.  Lawyers advise clients as to what facts raise legitimate issues and counsel the client not to proceed or to proceed based on reasonable grounds.  Lawyers winnow a dispute to manageable issues, which will then be decided in court.  When pro se litigants come to court, having little or no idea of the rules of evidence and the law, they bypass the winnowing process, relying on the judge and court staff—at public expense—to sort through which issues properly belong in court.  


The Court’s move to adopt limited practice rules is a positive step. Not only will it reduce legal expenses, it will likely improve outcomes for litigants and reduce the burden on our courts.


We need to look creatively at how to develop the best justice system possible.  We should consider the real cost of any dispute resolution system and determine what portion should be borne by the public and what part by the litigant.  New Hampshire voters made such a determination in 1966, when the New Hampshire Constitution was amended to provide that any individual facing jail would be provided a lawyer at state expense if he/she could not afford one. 


Would it be less expensive in the long run to provide lawyers for those who truly cannot afford counsel for certain vital issues, such as loss of housing or parental rights or health care?  On the other hand, should society subsidize a litigant who can afford counsel but chooses to proceed without one, resulting in extraordinary expense to the public?  Does the cost of legal services actually benefit society by deterring frivolous litigation?  These questions all need to be discussed.  The Court has taken a positive step toward reducing legal costs by approving “a la carte lawyering” and promoting discussion of these issues.



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