November 2012

Lack of Funding Limits Access to Justice

By Ed Vopal, President
Wisconsin Association for Justice

Americans believe that everyone is entitled to a fair and impartial legal justice system.  Attorneys help to ensure people have access to justice.  Today, however, an increasing number of people are addressing serious legal problems without assistance from an attorney.

Many people - victims of domestic violence, people facing the after-effects of natural disasters, parents disputing child custody, individuals being pursued by lenders, and unemployed homeowners facing foreclosure or other housing issues - cannot afford legal assistance.

The main reasons for the increase in self-representation stem from the poor economy and less funding for legal aid.  In recent years, the struggling economy has created higher numbers of cases filed for foreclosure and money judgments, both more than doubled in Wisconsin in the wake of the economic crisis.  Similarly, in Milwaukee County, it has been estimated that between 70 and 80 percent of family law cases now include at least one party who doesn't have a lawyer.

Despite the greater need for legal assistance, Congress cut funding for the Legal Services Corporation (LSC), the nation's largest funding source for civil legal aid to the poor, by 13.9 percent last year.  This reduction has resulted in about a $700,000 cut in funding to Legal Action of Wisconsin and Wisconsin Judicare, organizations that provide legal representation to low-income individuals in Wisconsin.  In addition, the 2011-13 Wisconsin budget completely eliminated funding for indigent civil legal needs.

A number of legal services for low-income Americans have been funded by the interest on lawyer's trust accounts, IOLTA.  Interest rates, however, are at historic lows, and, consequently, the amount of money available to assist with peoples' legal needs plummeted from a high of $371.2 million in 2007 to $124.7 million in 2009, a 57 percent reduction.

The funding cuts have led the LSC to conclude that less than 20 percent of legal needs of low income people are met by private or legal aid lawyers.  Meanwhile the number of Americans qualifying for low income legal assistance is at an all-time high.  It is estimated that 66 million Americans have incomes that are 125 percent or less than the federal poverty level, which would qualify them for many legal assistance programs.

While legal aid services are essential to help represent low-income Americans, in some cases involving consumer disputes - residential rental practices, lemon law, motor vehicle repairs, fraudulent sales, etc - the law allows individuals to hire attorneys and recover legal fees.  The award of attorney fees supplies "the teeth" for the enforcement of consumer laws in Wisconsin even when little money might be involved.

The right of a Wisconsin resident to recover attorney fees in consumer cases, however, was greatly diminished by 2011 legislation that statutorily presumes attorney fees to be only three times the compensatory damages suffered. When small amounts of damages are involved - like the amount of a rental security deposit - this attorney's fee limitation can be a real barrier to justice and means more consumers will probably be handling their own cases without legal assistance.

One of the most important ways people can access the legal system is the contingency fee system.  Under a contingency fee agreement, the injured party pays his or her attorney a percentage of the amount recovered at the end of the case and does not pay legal fees if there is no recovery. The contingency fee system is the "key to the courtroom" for many Americans. It provides access to justice to those injured by drunk drivers, dangerous drugs, the abused elderly, and many others who could not otherwise afford legal representation.

The contingency fee assures that anyone, no matter how rich or poor, can afford a lawyer. Without such a system, many injured people would not have legal representation to have their case heard in court. Through the contingency fee system, ordinary Wisconsinites can hold even the most powerful wrongdoers accountable, thus improving public safety, fostering positive change, and ensuring fair compensation.

The Wisconsin Association for Justice works to ensure a fair and effective justice system - one that ensures justice for all, not just a privileged few. Preventing peoples' access to legal services by cuts in legal aid or limiting legal fees diminishes the rights of people to have their cases heard in court.  Wisconsin must to do a better job of helping those who need legal assistance to ensure the American ideal of "justice for all."

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For more information about the Wisconsin Association for Justice, see WAJ's website, www.wisjustice.org or call 608-257-5741.

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