Cui bono, pro bono

Long ago before the Flood, I finished a draft of my very first statement of decision. I was rather pleased with myself. I called a court manager to find out to whom I should send it to have it typed up into a gleaming, glorious, finished product.

There was a long silence on the phone.

I was told, "Judges don't have secretaries" (as they were then called). "Type it up yourself."

State trial judges usually don't have legal research assistants either, except for a few departments such as complex, and law and motion. In some courts, three or four judges share a research assistant.

Federal and state trial courts have different traditions in issuing orders; federal judges, each with multiple research clerks, tend to issue comprehensive written orders. State judges frequently issue minute orders or sign off on orders drafted by counsel. While those are usually based on state judges' tentative rulings, they can be terse. Resources dictate output.

I took office during yet another budget crunch with limits on even basic supplies. Friends from the big firm world I had come from--where I had a secretary, paralegals, and associates to work with me- made a collection of used pens and markers, put them in an old plastic bag, and gave it to me. ABC pens. Already been chewed. I still have one for luck.

A Daily Journal article, dated June 20, 2024, reports a doubling of Los Angeles superior court cases to 847 per judge at the end of 2023. The lack of judges, especially in counties such as San Bernardino and Kern, is devastating. One judge from that area reports a caseload of 2,300 civil cases. Virtually all of his colleagues have between 1,800 and 2,300 cases.

"The judicial branch operational budget is 1.6% of the overall budget for California state government." (California Courts, The Judicial Branch Budget Process. Available at courts.ca.gov/24153.htm).

1.6 % for the third branch of government.

 At first, I thought little when I read a story in the Daily Journal that Gov. Jerry Brown had told our former Chief Justice Tani Cantil-Sakauye, as he advised her to approach the legislature for further funding, "The trouble with you is your constituency is poor people and poor people have no lobby." (Daily Journal, "Former chief justice recalls wrangling with Legislature, Jerry Brown," Oct. 24, 2024).  

Nothing new there, I thought.

But it slowly dawned on me the many ways in which the former Governor's views were so off-base. (In this note, I address the civil cases only.)

First, and most pointedly, elected officials such as governors and legislators do their job mostly by passing laws. Laws on the books are meaningless without courts to implement and enforce them. Cui bono? Who benefits? Surely it is in the self-interest of the executive and legislative branches to ensure the judicial branch is equipped to do a good, thoughtful job in carrying out their policies. No courts, no law.

Second, the courts are for all--including the rich and powerful--whether they like it or not. Even with private arbitration, many cases involving wealthy individuals and corporations must end up in court, such as those alleging statutory violations (e.g., labor law cases brought under PAGA), requests for public injunctions, CEQA matters, and suits between parties with no prior contact, such as most torts. All these, for rich and poor alike, must be handled by courts.

Third, and more broadly, developments in public law affect everyone, whether party to a case or not. People and companies usually behave according to their understanding of what the law--as interpreted by the courts--requires. So while most will never enter a courthouse, their actions are significantly determined by the work of the courts.

Fourth, and most starkly, the civil courts in point of fact aren't all that hospitable to the poor. I know I'm not precisely addressing what Gov. Brown meant when he suggested only the poor use the courts, but I'll extrapolate to make the point: The courts are often inaccessible to the poor and even the middle class. Most of us can't afford sustained litigation over a couple of years.

To be sure, we have small claims, the jewel in the crown of our civil procedure, but recovery is limited. Contingency cases, class actions, and those with statutory attorney's fees can be prosecuted (note, these mechanisms won't help defendants). Some brave souls will even undertake contract cases with attorney's fees clauses, risking the possibility they will have to pay their own fees and those of the other side. How the lawyers will be paid in the interim is anyone's guess.

And other cases?  Basic contract or tort cases, especially where insurance isn't available?  The small business dispute?  Neighbor disputes?  Landlord-tenant issues?  Smaller personal injury cases that can't attract contingency counsel?   Family law?  There have been pilot projects to provide pro bono counsel in some of these areas, but the general problem is untouched.

The problem of access to justice - and I mean for both plaintiffs and defendants - is one of the most serious issues facing the courts. It is fed by two factors: lack of judicial resources and complex law. I have elsewhere detailed specific aspects of civil procedure that contribute to the costs and proposed some solutions. ("The Law Otherwise: Notes on Access to Justice," BePress, 2022, works.bepress.com/curtis_karnow/54).

Here, I just list three simple facts:

1. The law gets more complicated every time a statute takes effect and every time an opinion is published. The law ramifies; that's just the way it is as each case presents new facts, and new facts produce new law.

2. The law is so complicated that a lawyer is needed in most cases. Recall that people outside the profession generally don't even know what "complaints" or "depositions" are.

3. Lawyers are expensive - even inexpensive lawyers. I recall thinking, as I sent out bills as a mid-level partner, that I could not afford my services.

No, the dark truth is that the poor (and those of moderate means) are not the civil courts' constituency. For them, the courts are a fearsome place.

Courts are the last stopping place. When all else fails - when trust is lost in a business deal, when family, friends, schools, community, local mediators, religions, and workplaces fail -- people end up in court. Courts are the last resort when the executive or legislative branches try to break the Constitution. Courts are not without constituency. They serve all constituencies - as basic, and sometimes as unnoticed, as the air we breathe and the ground on which we walk. Courts enable the rest to work.

Cui bono? Pro bono publico. Who benefits? We all do- it's for the public good.