Middle class needs legal aid too

In a sad, terrifying piece titled “Foreclosure’s Final Act,” today’s Washington Post reports a rare glimpse of our courtrooms from the perspective of the ordinary citizen:

“The court clerk calls his name, and Harry Rexrode, not entirely sure what to do, steps to the defendant’s table. He is dressed in jeans, a flannel shirt with dried paint spattered on the sleeves and work boots. He has no attorney.

“In a stern tone,Prince George’s County Circuit Judge Herman Dawson asks Rexrode whether he knows what is happening to him.

Rexrode, 50, nods his head.

“I want to see if I can get a continuance,” he says.

Dawson grins, as if amused by Rexrode’s use of the legal term. “A continuance? For what?”

“To stay,” Rexrode says.

“Rexrode is seeking a miracle really, in a place where there are precious few. He is in the county’s foreclosure court, asking Dawson to let him remain in the Hyattsville home he has owned since 1997 a little longer before the bank takes it and he is put out in the cold.”

This particular report is set in a courtroom in Prince George’s County, Md., where I live. It could have been set in any county in the larger Washington, D.C., region.

More on that below. The point to start with is that the report shows what happens not just to the poor, but to ordinary middle-class people, in this large and wealthy nation of ours, once they land in court.

One of the horrors of our legal system is one that has been too little reported: Judges in our courts are often inclined not to listen to parties who appear without an attorney. This might make sense in many legal cases, especially criminal matters, though it is awfully hard on the parties involved.

But telling Party A, or Party B, that he/she ‘should have gotten a lawyer’ is counter-intuitive to the point of abuse in some kinds of cases—particularly those cases where the party, whether plaintiff or defendant, is in court in the first place for financial reasons—in other words, for being cash-strapped.

From the Post:

“Courtrooms such as this across theWashingtonregion are the forums where banks ask judges to grant a default decree so they can take ownership of a home, and people such as Rexrode try to reverse or delay that decision.

They are almost always too late, and tragically ill-equipped to do so. Seated in Dawson’s nondescript courtroom, most share a look of puzzlement, fearful about their futures and uncertain of how the legal system works. They sound confused when the judge begins to pepper them with questions about dates of missed payments and when the bank began warning them about default. Few offer any evidence to support their claims.

“Have you talked to a lawyer?”Dawsonasks Rexrode.

“I didn’t know I needed one,” Rexrode responds.

Dawson, who often hears criminal and juvenile cases and has a reputation for toughness, shakes his head. Then he says something he will repeat over and over all day.

“You don’t come to court without a lawyer. This is the problem.”

That is a judge’s perspective. From the perspective of the ordinary citizen, one problem is landing in the courtroom of a judge who insists that everyone should get a lawyer.

At this point it is necessary to note that judges are not all alike. Some judges are better than others (demonstrating that the other judges could improve). Some judges, to their eternal credit, understand that people already drowning in a sea of debt are not in good position to pay a lawyer’s bills. Some judges appear to realize that most legal aid organizations—whether public entities or non-profits—provide lawyers only for proven indigents.

The unpalatable truth is that, if you are still in your house, you still have assets on the books—even if you are in arrears, even if you are facing foreclosure. And while you have assets on paper, forget about getting legal aid for free. Free legal aid has to go to the people who need it most urgently, in our system of legal triage—indigents on the street, mentally ill indigents who should never have ended up in the legal system to begin with, indigents facing the death penalty—whether or not their court-appointed defense counsel fell asleep during their capital trial.

Legal aid at reduced cost, at a sliding scale connected to income, is available only to a limited extent. The waiting lists of potential clients in any populous area far exceed the numbers of attorneys available to do pro bono work.

This particular newspaper article concerns people whose houses are being taken away from them by foreclosure. Sad to say, the basic situation is portrayed here with utmost realism: These people get dragged into court because they cannot pay their bills—and the first thing the judge says to them, with a certain obliviousness to the fact that lawyers cost money, is something along the lines of ‘You should have gotten a lawyer’ or ‘Where is your lawyer?’ or ‘Why didn’t you get a lawyer?’ And then the judge treats them like deadbeats for not hiring a lawyer—even while the legal system is punishing these hapless defendants for having run up bills. For having run up debt. For having spent money. For not having money left.

I can understand the impatience of a judge who—having put in years of hard work, first in law school and then in the legal system—has to put up with listening to uninformed people (of all classes/incomes) mangle legal language and degrade legal principles. I sincerely appreciate the occasional irritation of a judge faced with a party who clearly watched too much courtroom television at some point. More broadly, we can always find ways as spectators after the fact to divine what the out-of-money fellow citizen should have done, even if we did not do same ourselves: You should have lived with your parents until you got married, instead of renting an apartment. You should have postponed college until you could pay for it with cash. You should have waited to buy a car until you could pay for it outright, without financing.

Sure.

But even the most hard-nosed among us—that would be you, Mr. Will and Mr. Limbaugh, and by the way it’s not my country I’m blaming; it’s you—do not say, You should have waited to buy a house until you could pay for it outright. Lenders and the real estate agents themselves never, never, never took that line. (I bought my house in the go-go Eighties, and I still remember the puzzlement of the lender when I paid 20 percent of the price in down payment. His attitude was, since no one was forcing me to do so, why was I doing it?)

But back to our courtrooms.

Court

There are ironies in saying ‘You should have hired a lawyer’ to someone in court being foreclosed, or to someone in court declaring bankruptcy. But the Catch-22 problem is not confined to people in court for financial matters. It also faces people with difficulties in family court—not only in Prince George’s County but also in neighboring Montgomery County.

I watched firsthand, in one family court in Montgomery County, a Family Law Master who began every proceeding—child support, visitation, divorce, separation, every proceeding without exception—asking the party whether s/he had hired a lawyer. This in spite of large signs all over the courthouse, conspicuously saying that in Montgomery County, persons appearing pro se are (supposed to be) treated like those appearing with a lawyer.

Sure.

This particular Master took the same line even where the case was a simple matter of enforcing an agreement already settled by the courts, and even in cases so small that the amount of court award would be less than a lawyer’s bill.

In another courtroom devoted for the day to small family law cases, the judge entered—some minutes late—at exactly the same time as the attorney in the upcoming case. The opposing party, waiting in the courtroom, had no attorney, and lost a simple request that a previous court order, compelling the ex-husband to make a will to protect the minor in the case, be enforced.

In no way is this scene unusual. InMaryland, state and local judges are nominally elected by the people, but the judicial candidates are previously selected by—basically—other lawyers. A judge has every incentive to throw jobs to fellow attorneys.

Besides, attorneys are also hurting in the current economic downtown, particularly those in a small firm or in a solo practice who finished law school in debt, and they always need work.

Lawyers have to eat, too

However, hiring a lawyer, even if the client goes deeper into the hole to do so, is no guarantee of success:

“Terry Reeley of Bowie has an attorney. He speaks for her in court but is unable to convince Dawson that the bank failed to notify her about the default in a timely manner.

“”The judge didn’t want to hear anything,” Reeley says later. “We could see sitting there that he didn’t want to hear what people had to say. He was just tossing people and their lives out the door. Now I have no idea when the sheriffs will come and say ‘You’re out.’ ”

Reeley and her husband ran into financial problems after they lost their garage door business in October 2007. They fell behind on their mortgage, but she said she was unaware of the foreclosure and the sale of her four-bedroomCape Codhome until a notice was taped to her front door.

Dawson orders Reeley and her husband to pay $60.82 a day to the bank until they leave the property or are evicted. Reeley runs from the courtroom and falls into the arms of her best friend. “This isn’t fair,” she said, tears streaming down her cheeks. “They stole my house.”

As it happens, another Post article ran this morning on how Vice President Biden is going to head a task force on issues facing the middle class. This effort should be supported.

One issue is how inutile our courts too often are for protecting the middle class. There are some good places to start dealing with this broad and widespread problem.

1) Legal task forces. The legal profession could put up some of its money in a team effort, as trial lawyers have done on some other issues, to protect clients from attorneys who do not do the job they were hired to do.

2) Subsidized legal aid. Competent, qualified legal aid—could be subsidized for every individual in foreclosure for financial reasons, with some conditions. Many lawyers, as stated above, need work. Surely the talent could be found.

3) Legal aid for child support. Legal help could be subsidized for custodial parents trying to stay in the middle class with a little help from child support.

4) Better child-support legislation. Legislation might help more in getting the non-custodial parent to pay part of the minor’s educational expenses. (In Maryland, financial support for the minor ends when the minor turns eighteen; thus the non-custodial parent is free to wash his hands of college expenses. This, btw, is an incentive for divorce/family abandonment in hard times.)

5) Better oversight on foreclosures. Legislation could require any bank or other lender attempting to foreclose to meet certain conditions including subjecting itself to careful review of its lending practices, executive compensation, and investment practices.

Et cetera.