How to find cheap legal services for people who don't have good cases?
March 4, 2014 7:47 AM   Subscribe

Because of the way nonprofits work, it seems most legal aid organizations receive their grant funding only for successfully defended cases - which means that some of them seem to cherrypick which cases they accept, sorting for the most winnable rather than those in the most need. Are there any that don't do this? How do I find places for people with bad or unwinnable cases, but who still need legal help?

I know that whenever I've hired (relatively well-paid) attorneys for myself, there seemed to be a lot more options than exist at legal aid agencies - to include delaying or moving the cases for more advantageous circumstances/times/judges. This doesn't seem to be a thing with legal aid or legal assistance groups - they seem to want to just do the bare bones of the case, and only if they can win. Am I seeing it wrong, or is this a real thing? If a real thing, are there places that do this differently?
posted by corb to Law & Government (14 answers total) 2 users marked this as a favorite
What country are you asking about?

If we're talking about the US and we're talking about civil or family (not criminal) cases, then yes, I'd say that given the lack of resources, that any legal aid group would want to put those resources behind a case that has merit, rather than something that doesn't.

I would hope that any legal aid organization would discourage a litigant from bringing a civil case that doesn't have adequate evidence, doesn't have merit or is just a pointless, waste of time.

There are organizations who will provide advice and counsel, but that will not pursue a 'bad' case.

As for criminal cases, each defense attorney must provide a vigorous defense on behalf of his or her client. Whether or not the case is 'winable'.

Because of plea bargaining, if a person is guilty of a crime, and if the evidence is significant, it may be in the best interest of everyone to accept a plea.

Some law firms will take cased Pro Bono (free) if it is compelling enough.

What exactly is the nature of the case? Perhaps better info can be provided.
posted by Ruthless Bunny at 7:57 AM on March 4, 2014 [2 favorites]

Yes of course this is a real thing. I don't mean to sound snarky, but it's a waste of resources to pursue unwinnable cases. I've worked in the nonprofit world and hated when I was forced to take unwinnable cases because I felt it gave my clients false hope about their situation and delayed them moving on with their lives. I know people who take tenant/landlord cases that are unwinnable because at a minimum they can delay evictions, which certainly has value so obviously unwinnable is a relative term. Some cases you can get a more positive outcome even where prevailing on the merits is highly unlikely.

Many nonprofits survive on attorney fees, which you can generally only get if you win the case. So your ability to represent people in the future means you must win cases today.

There are certain nonprofits that will take a higher percentage of "bad" cases and those are generally organizations where their non profit legal services are only a small component of the organization's mission. In other words, they have a larger constituency to keep happy so they take bad cases for internal political and/or ideological reasons. I think this can be both positive and negative given the context.
posted by whoaali at 7:59 AM on March 4, 2014 [3 favorites]

Response by poster: To clarify quickly, I am mostly talking about stuff like landlord/tenant cases (in the US) in order to delay evictions.
posted by corb at 8:05 AM on March 4, 2014

In short, in my experience you are, in fact, seeing it wrong. they seem to want to just do the bare bones of the case, and only if they can win. Am I seeing it wrong, or is this a real thing?

Legal aid, whether a public agency (like public defenders) or a private nonprofit, do have very limited resources. Therefore, they must screen cases (like any BigLaw or for-profit attorney would do). The screening, however, does not come down to "We only take cases we will win and will give us attorney's fees" in part because attorney's fees don't work that way in the vast majority of the type of cases legal aid agencies take (especially landlord-tenant). They usually cover only the costs of filing and--very rarely--a customary hourly rate (which, in an award, is usually lower than an actual customary hourly rate).

Screening of clients and cases at non-profits often starts with whether or not there is even an actual triable issue (there usually is not), whether what the client wants is possible in the situation and given the applicable law, whether the client meets the income guidelines for the organization (which are often set by the funding source), and then moves into whether or not the organization has the resources to handle the probable workload of the case.

I have never in my life been involved in a non profit legal services organization which only took "winnable" cases. Never. Nor have I ever been involved with one that had its funding contingent upon favorable verdicts. And I have worked or volunteered for non profit legal services organizations for every single year of my 15-year legal career. So I can name several. I've also never worked with one that relied upon attorney's fees for any significant portion of its funding.

As I wrote above, every single organization, however, does assess cases before accepting them. It is a waste of resources, as well as unethical, to agree to pursue a case that has no sound legal basis. Legal services, also, may be required to meet federal or state or funding source guidelines about poverty level before accepting a client. Whatever standard (100% of poverty level, 150% of poverty level &C) is established as part of the funding source (whether a grant or private funding) must be met by the potential client before that person can be accepted as a client. That is, potential clients must be screened for income level to be sure they meet the guidelines established by the funding source before the case can be taken.

Legal Services Corporation, the federal agency that funds legal services, does not predicate funds upon "wins". In fact, LSC prohibits the initiation or participation in class actions, which typically have enormous attorney fee awards.

With regard to your clarification: The legal aid agencies in Cook County, Illinois which do landlord-tenant evictions work do not screen cases for whether or not you can prevent the eviction or whether or not attorney's fees can be won (for the most part, in Cook County, fee awards in L-T cases are nonexistent). They do screen cases, however, and are brutally honest with tenants about what is not a defense to eviction. If the most likely outcome is an order of possession (in favor of the landlord) with a standard stay date (a delay of time between giving legal possession to the landlord and sending the sheriff to evict), they do not often have the resources to try the case themselves and will direct tenants to self-help resources. I do L-T cases on behalf of my family (and volunteered at a Chicago non-profit that does L-T for about a year).
posted by crush-onastick at 8:31 AM on March 4, 2014 [6 favorites]

Consider whether the people with unwinnable cases could get by with legal information (possibly available on the court's website, at a law library, in a book titled something like "Landlord-Tenant Law in Your State") rather than legal advice (only available from a lawyer).

The difference is instead of someone saying, "here's what your own personal legal situation is, and here is how you should resolve it" (legal advice), legal information is "here's what the various courts do, here are the forms, here is the list of deadlines" and the person has to figure out themselves whether their case belongs in that court, which form to fill out, what deadline they need to meet.
posted by Bentobox Humperdinck at 8:36 AM on March 4, 2014

To clarify quickly, I am mostly talking about stuff like landlord/tenant cases (in the US) in order to delay evictions.

When I interned at a legal aid organization, we gave tenants advice every single day about how to delay their evictions, since that's basically the best/only outcome you can hope for in the vast majority of cases in which eviction is inevitable. We never told them "sorry, we can't help you, your case is a loser!" since EVERY case is a loser when you stop paying rent and your landlord wants to evict you.
posted by gatorae at 8:38 AM on March 4, 2014 [4 favorites]

It has not been my experience that legal aid resources "want to just do the bare bones of the case." Granted, I have less experience with the landlord/tenant side of things than with criminal or family law, but nevertheless, that is not my perception.

You seem to be confusing two things. Zealous advocacy is not the same as amoral gamesmanship. In two hypothetical scenarios where one client has means and the other doesn't, where both have "cases" of questionable standing that are unlikely to yield any positive result, it is definitely true that the client of means will be better able to find an attorney to press his "case." However, this does not illustrate a flaw with nonprofit legal aid. It's a flaw with shitty attorneys who refuse to turn away business because they have BMW payments.

I'm an attorney. I can tell you firsthand that a significant part of the job is telling people who come to you with a problem, "You don't need legal help," and explaining why. People lose their job and their first thought is to get a lawyer. Their landlord turns down a request, they want a lawyer. They buy a product or service that is subpar, they want a lawyer. This may or may not be true of you personally, OP, and it may or may not be true in your individual experience, but I'm telling you it's true generally. It is what lawyers encounter. And in the vast, vast majority of these scenarios, the honest best advice is, "Engaging the legal system will not yield what you want. Your best course is to suck it up and move on."

Instead, some attorneys respond, "Great, well here's how much it'll cost for my help..." It's debatable whether they are being unethical. After all, their job is to provide legal services, and there are legal services they can provide. They can move your case to a different venue before it gets dismissed. They can make sure your case doesn't get dismissed before you lose on summary judgment. Maybe they can even take you to trial, knowing that you will almost certainly (1) lose, (2) win a nominal five dollars, or (3) win a larger amount you'll never be able to collect. If you can pay for these services, and you're willing to, and the attorney can perform it strictly unethical for that transaction to occur?

Without answering that question, I'll submit that it should answer yours. Nonprofit legal aid organizations have limited resources and many people who need their help. There is a difference between screening for people who can actually be helped by their help, versus "cherrypicking" easily winnable cases. I have never seen a legal aid resource do the latter. On preview, that puts me in agreement with Crush-onastick.
posted by cribcage at 8:40 AM on March 4, 2014 [5 favorites]

I would add to the answers above that the question is not whether the case is winnable, but rather the extent to which counsel will be able to help the client achieve a better outcome at all. Sometimes there just isn't that much that any attorney can do for the client, depending on a whole host of factors.

Also, legal aid clinics affiliated with law schools may prioritize cases that provide better learning opportunities for their students.
posted by Carmelita Spats at 8:44 AM on March 4, 2014 [1 favorite]

Best answer: To clarify quickly, I am mostly talking about stuff like landlord/tenant cases (in the US) in order to delay evictions.

One of the reasons you'll run into this is that, gatorae's (fairly accurate) point notwithstanding, attorneys have to consider what are usually referred to as their "Rule 11 obligations." Every time a lawyer files a pleading or makes an oral representation of any kind to a court, s/he is affirming to the court that
(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.
Violation of the rule makes a lawyer potentially subject to harsh sanctions, up to and including loss of license. I can't weigh in on any particular situation, but there's a colorable argument that taking a so-called "unwinnable" landlord-tenant case in order to delay eviction, while knowing full well that no tenable defense against eviction exists, could qualify as a violation of Rule 11 deserving of monetary sanctions or worse.

Even without the risk of a sanction, an attorney is ethically obligated by each state's Rules of Professional Conduct not to make legal arguments known to be frivolous for the purposes of harassment or delay. See, for example, Model Rule 3.1.
posted by Partial Law at 8:52 AM on March 4, 2014 [6 favorites]

I am not sure that this is limited to non-profits. We had to hire an attorney recently for our small business. When our case was more iffy (our word against the other party), the attorney was reluctant to take it on. When more direct evidence came out, taking our case from maybe-winnable to almost certainly-winnable, he became much more interested. (Obviously he would have made money either way, so kudos to his professional ethics).
posted by rada at 9:33 AM on March 4, 2014

Because of the way nonprofits work, it seems most legal aid organizations receive their grant funding only for successfully defended cases - which means that some of them seem to cherrypick which cases they accept

It's possible that you are confusing two different kinds of free representation that are available. Groups like the ACLU and the EFF are sometimes accused of only "taking winnable cases" which they will often do for free or at greatly reduced costs. This is because they are an advocacy group that are trying to effect changes in existing laws and policies. This goal is forwarded by finding good, winnable cases that can help change laws. This is sometimes frustrating to activists who feel sometimes that they have much more deserving, but less winnable, cases that do not attract the attention of free legal counsel.
posted by jessamyn at 10:20 AM on March 4, 2014 [1 favorite]

Jessamyn is correct that there are basically two kinds of cases nonprofits take. There are "impact" cases, which are meant to change the law - a good example of an impact case is US v Windsor, which ended up overturning DOMA. If someone brought a case against a landlord to try and change landlord-tenant law for everyone, or to change the way the city enforced their existing laws, that would generally be considered an impact case. Generally, an organization will only bring an impact case if they think they'll win (or some other good will come of it, such as public attention). High-profile impact cases tend to be well-resourced, not bare bones at all.

The second kind of case is a "legal aid" case - for example, legal aid lawyer represents individual tenant in eviction case. Different organizations have different standards for what legal aid cases they will take, and sometimes whether the case is winnable is part of it. Nonprofits tend to have very few resources (as crush-onastick said), and can usually take only some of the cases that come to them, so it makes sense to focus resources on cases they can win. However, this type of legal aid organization will often take a case where there's a good chance they'll lose as long as there's also some chance they'll win. Basically, like cribcage said, the test here is often whether the person might be helped by a lawyer's assistance. Given the lack of resources most legal aid organizations have, this could be where you get the idea of bare-bones help, which unfortunately is sometimes what happens.

Some nonprofits only do impact cases; some nonprofits only do legal aid, and some do both.
posted by insectosaurus at 1:10 PM on March 4, 2014

Response by poster: Thanks everyone, I think Partial Law really has it - I was thinking more of the benefit to some individuals of delaying or discouraging proceedings, or of fighting charges even if they knew they would likely eventually lose, and didn't realize there were licensure issues about doing so.
posted by corb at 1:13 PM on March 4, 2014

In a court like NYC's housing court, where 90% of tenants are unrepresented due to a severe shortage of free legal services, taking an unwinnable case just to delay eviction will often mean that the next tenant who comes in the door with a winnable case has to be turned away. You're also completely wrong that we prefer cases "only if we can win" and do only the bare bones. Simple cases that are easy wins are often turned down for representation because the tenant will do find on their own with advice and guidance. Legally complex cases where the outcome could go either way are the cases where an attorney can do the most good, and many organizations prioritize that sort of case. (Those also have the benefit of being interesting and challenging for the attorney.)
posted by Mavri at 4:13 PM on March 4, 2014

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