Legal experts say Vermonters increasingly can no longer afford to hire a lawyer to write a will, fight a small claims lawsuit or go through probate court to deal with estate issues.
Officials recommend expanding the legal authority of paralegals, changing the process for consumer credit collection cases, and making other changes that would better serve the legal needs of Vermonters.
Dan Richardson, chair of the Joint Commission on the Future of Legal Services, said his profession has struggled “with how we keep up with the changes in society, changes in technology and changes in the types of problems facing the population.”
The commission was formed after Chief Justice Paul Reiber in a March 2014 speech urged his colleagues to find a way to ensure that Vermonters have access to high quality, affordable legal representation and dispute resolution services.
Reiber said in light of the stark financial realities faced by the courts, lawyers and the public, the status quo must be re-evaluated. Law school students now graduate with staggering debt that limits their options; mid-career attorneys are confronted with competition from Internet legal services; and more Vermonters than ever are representing themselves in court. Lastly, the bar and the courts have been slow to adopt technology.
The commission is made up of 30 people from different facets of the state’s legal system, and was broken up into four groups to examine four areas: legal education, court process, legal services and technology.
The report, completed in September, is the first phase of a two-year project. In the next year, Richardson said, the commission will work with the Vermont Bar Association and the three branches of state government to implement the recommendations.
One major barrier for litigants in Vermont is the cost associated with legal representation. Richardson, a former president of the Vermont Bar Association, recalled that at a recent meeting with other attorneys, one lawyer said, “If I had a problem, I couldn’t afford me.”
“Most people in the middle class and lower income cannot afford an attorney unless it’s an absolute necessity,” Richardson said.
As a result, many Vermonters end up representing themselves in court, he said.
According to a 2012 analysis by Judge Amy Davenport of the cases in the civil division of the Vermont Superior Court, defendants represent themselves in 94 percent of small claims cases, in 84 percent of custody cases and in more than half of divorce cases.
In certain types of cases, the services are often skewed. In landlord-tenant disputes, three-quarters of landlords have legal representation, while only 10 percent of tenants do.
The committee recommended expanding the authority of paralegals, giving them the go-ahead to complete some tasks that currently must be done by lawyers. Paralegals are specially trained, but they are not members of the bar and do not hold a juris doctorate.
A new program would be created to license paralegals who, under the supervision of an attorney, could perform specific tasks at a lower cost. In some instances, this shift in duties would make legal representation more affordable.
According to the report, “paralegals can reach out to serve a population that is not now being served and help support and integrate the practice of the law.”
The commission also recommends changing the way the state deals with certain types of cases, including consumer credit collection cases.
Those cases are currently handled in small claims court, but the commission recommended transferring them to Superior Court. Richardson said that cases sometimes languish in small claims for more than a decade.
The commission envisions creating a system that creates incentives for people who are the target of debt collection to come forward so that the claims can be resolved more quickly.
Richardson said that could be of benefit to the court system, which would save time on managing the case, as well as the plaintiffs and defendants, who would reach resolution more quickly.
The commission also recognized a need to raise literacy about the legal process among the public in general, Richardson said.
“There’s a lack of understanding with people of how the court system works,” Richardson said.
Other recommendations include updating the judiciary’s case management system and changing the way complex litigation is handled by the courts.
The commission suggests that judges be permanently assigned to complicated litigation, especially business disputes that can take years to resolve. This approach, which has been successful in other states, would prevent complex civil cases from clogging up the courts.
Eric Avildsen, executive director of Vermont Legal Aid, who served on the legal services committee of the commission, said making the judiciary website more comprehensive and easier to navigate would help everyone.
“When you end up in the court’s system to find something, a lawyer can’t find their way to get where they need to go,” Avildsen said.
Avildsen said many of the other changes will not have a significant impact on the lowest income Vermonters.
One of the biggest issues the judiciary faces is a shortage of lawyers who can afford to work in rural communities or at firms like Vermont Legal Aid that serve low-income populations, according to Avildsen. Crushing student debt incurred by recent law school grads has made it harder than ever to attract new attorneys to poverty law, he said.