Legal services

By Stephen N. Zack, President, American Bar Association. This is the second in a series of posts about the proposed Sunshine in Litigation Act of 2011. Read other posts in a debate about the bill here.

If you were going to change the rules to a game to make them fairer, wouldn’t you ask the referees what they thought?

Unfortunately, Congress has not. They are considering changes to important rules regarding litigation.  Disregarding the longstanding, successful process of court rules-making, however, this bill undercuts the third branch of government, threatens to raise court costs, and may even close off access to justice. All this without accomplishing what it really intends to do.

It’s ironic that something called the “Sunshine in Litigation Act” doesn't involve the judiciary, in order to shed light on the issue. Judges know what problems exist in their courts and are best positioned to solve them. That’s why it is usually a wise, standard procedure to have the third branch of government set rules that address issues in the courts. But this measure avoids what usually works well, and instead would issue a legislative fiat about discovery protective orders. 

If the courts were consulted, it would quickly become clear that the bill language is dangerously unclear and broad. As two Judicial Conference committees write in their letter of opposition to the Senate, Congress’ demands would lead to more confusion, not less, regarding what information has to be released, and when “…The provisions defining the scope of S 623 are problematic,” the conference warns, adding the standard in the law “is so broad and indefinite that it will either sweep up many cases having little to do with public health or safety and impose on all these cases the costly and time-consuming requirements of S. 623, or require the parties and court to spend extensive time and resources litigating whether the statute applies.”

So, what is clear is that each court case falling under the shadow of these new rules would cost every party more time and money.

A proposed $75 million cut to civil legal services funding threatens to devastate legal aid programs for low-income individuals across the country, "at a time when it is most needed by the tens of millions suffering economic hardship," according to the Legal Services Corporation.

The slashed budget, proposed by the House Appropriations Committee Wednesday, would represent a 14 percent decline from the Legal Services Corporation's current level of funding and would effectively cut legal services spending by 28 percent for the remainder of the year, ABA President Stephen N. Zack explains in a statement, calling the proposed cuts "shocking and unacceptable."

A National Law Journal report last month described the "perfect storm" hitting legal services organizations in the wake of the 2008 recession, as funding has been depleted by drops in interest rates for Interest on Lawyer Trust Accounts and a tighter fundraising environment, while demand for free legal services soars.

"We're learning that 2010 is really when the bottom dropped out. Our funding is increasing against a title wave of demand," LSC's John Constance told the NLJ.

"The proposed cut could result in the layoffs of at least 300 legal aid staff attorneys who help victims of domestic violence, keep families in their homes by averting unlawful foreclosures and evictions, help veterans and the disabled obtain benefits, protect the elderly and others from consumer fraud, and provide other services in civil cases," explains an LSC news release. "Programs would be forced to turn away cases except for those involving immediate issues of safety and security, and many programs serving rural areas would be forced to close offices."