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not that kind of legal self-help?

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david giacalone - November 12, 2006 @ 8:10 pm · Resources-Consumer, Viewpoint

 towTruck For lawyers, law students, and their professors, the “law of self-help” is a different concept than shlep‘s notion of “self-help law.”  Rather than our focus on individuals using “self-help law” materials and activity to solve legal problems or engage in litigation without involving lawyers, the traditional legal doctrine of self-help refers to:

“obtaining relief or enforcing one’s rights without resorting to legal action, such as repossessing a car when payments have not been made, retrieving borrowed or stolen goods, demanding and receiving payment or abating a nuisance (such as digging a ditch to divert flooding from another’s property). Self-help is legal as long as it does not “break the public peace” or violate some other law (although brief trespass is common) . . .” (Law.com Dictionary)

The “law of self-help” is, therefore, concerned with understanding whether, when, or how a person can engage in direct self-help activity without violating the law.  It is usually accepted that using violence or otherwise “breaking the public peace” is not permitted under the law of self-help.  

A farmer might engage lawfully in self-help, for instance, if one of his cows meanders into a neighbor’s field — by entering the pasture and fetching his cow, despite a technical trespass.   On the other hand, the North Dakotan who recently “helped himself to a 600-pound, black-and-white-faced steer” belonging to someone else, butchering it right there on the spot (Bismark Tribune, Nov. 7, 2006), was certainly acting outside the doctrine. More problematic, would be the behavior of the new Nicaraguan president-elect Daniel Ortega, who we are told “helped himself to a prime slice of expropriated real estate” before being voted out of office in 1990

RepoManN Many Baby Boomers and GenXers got their introduction to the law of self-help in the 1984 cult classic movie Repo Man, starring Emilio Estevez.  Those studying Contracts Law or the Uniform Commercial Code might, indeed, enjoy arguing over which instances of self-help in that film were within the law.  The “recovery experts” listed in RepoMan.com‘s Repossession Directory should be familiar with the particulars of the law of self-help, too.  For a very good introduction to the theory, history, and current state of the self-help doctirne, see “Self-Help in Contract Law: An Exploration and Proposal,” 33 Wake Forest Law Review (839 – 907 (1988), by U. Denver Law Professor Celia R. Taylor. 

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slow-news day: hyphens & self-help

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david giacalone - November 11, 2006 @ 9:14 pm · Viewpoint

Self-HelpSpeedBump11-11-06 Speed Bump, by Dave Coverly, 11-11-06 edition

The topic of today’s Speed Bump cartoon serendipitously resolved my inner debate over whether to take shlep on a Saturday journey into linguisitcs.  This little detour began three days ago, when a searcher asked Google “is ‘self help’ hyphenated“.  There were almost 37,000 results, and the first two were links to our recent shlep nomenclature posting, which brought the querist to our humble weblog and brought the question to our attention.

If the searcher found an answer here, it was by example rather than prescription or proscription.  Whether using the term as a noun or an adjective, your Editor has always employed a hyphen when combining the words “self” and “help” in order to denote “the acquiring of information or the solving of one’s problems . . . without the direct supervision of professionals or experts.”  

hyphenKeyN  That usage was quickly (and cursorily) confirmed, when I checked two other top Google results (one from the University of Alabama in Hunstville and the other from the California library), which both gave the term “self-help” as examples of the correct usage of hyphens.   Furthermore, my study of German a few decades ago, reminded me that the union of “self/Selbst” and “help/Hilfe” would become the compound word “Selbsthilfe” in that language, underscoring my belief that “self” and “help” needed to be linked, if the full meaning were to be communicated adequately. 

Satisfied that my customary practice was correct, I went to bed Wednesday night confident that “self help” is incorrect [as, by analogy, is “self represented”].  However, that confidence was soon shaken.

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it’s time to honor pro se work done pro bono

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david giacalone - November 5, 2006 @ 9:28 pm · Viewpoint

The National Law Journal is seeking nominations for its 2006 Pro Bono Awards.  NLJ notes that “Past winners include lawyers whose pro bono work has entailed significant financial sacrifice, has had a broad impact and, because of their clients’ unpopularity, has exposed them to criticism.”  shlep wants to urge pro se practitioners and advocates to nominate worthy members of the legal community who have made significant volunteer efforts for the improvement and expansion of self-help/pro se resources in their communities, states or nation.   We have often argued that self-help law volunteers greatly leverage pro bono resources — either directly serving more pro se litigants per hour of service, or indirectly helping to create resources that are widely available — and their efferts should be encouraged and recognized. 

 spotlight  Whether we spotlight a bar leader who has fought for pro se projects and funding (often against strong “guild” opposition), a private attorney who has organized a courthouse program or helped to staff one, or an academic providing research or clinical oversight, it’s about time the self-help community let the rest of the bar know that efforts on behalf of pro se litigants are an important part of the legal profession’s pro bono contribution to public welfare. 

The deadline to receive nominations is Nov. 16.  Details here. (via Legal Profession [We]Blog)

the pro se nomenclature problem

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david giacalone - November 2, 2006 @ 3:41 pm · Viewpoint

Things need to lighten up here at shlep after all that Fair Use business last week.   It seems like a good opportunity for my alter ego Prof. Yabut to continue his campaign against confusing terminology (such as blog, blawg and blang) and on behalf of clear, “plain” language that is easily understood by the public, and even by lawyers.     

   

Frankly, there are too many terms used to denote persons who are in court as parties to a lawsuit without a lawyer — and, more important, none of them seems particularly satsifying.  As Prof. Jona Goldschmidt notes in the first footnote of a recent monograph about assisting “self-represented litigants”:

“Courts in American states on the East Coast, the Midwest, and the South generally refer to SRLs as pro se litigants, from Latin meaning for oneself, or on one’s own behalf. Black’s Law Dictionary (7th ed.) 1236 (1999). Western state courts (e.g., Arizona, California) refer to them as pro pers, a shorthand version of the phrase pro persona, meaning for one’s own person., Id. at 1232, or in propria persona, meaning in one’s own person. Id. at 796. In Commonwealth countries, the phrase commonly used is “litigants in person.”

To that list (pro se, pro pers, in propria persona, self-represented, SRL, Litigant in Person, LIP), the Massachusetts trial court library adds “unrepresented.”  Here are some problems that I have with these terms:
 

 

        – pro se, pro pers, pro propria persona:  Yabut Linguistic Rule of Thumb: “It it’s Latin, it’s probably not Plain English.”  To stick the lay public with a Latin phrase to describe their litigant category or status seems counterproductive, if your goal is to demystify the justice system and achieve understanding and inclusiveness for all.  Also, just who decides how to pronounce the term? [note: my best recollection is that in Latin the vowels a, e, i, o, u, are pronounced, respectively: ah, ay, ee, oh, oo.]  Having competing Latinate phrases and geographic differences makes it even more confusing.  Unless your Pope demands you use Latin, you should eschew it.     

           — “self-represented“:  Yes, we should switch to English phrases or names.  But, the one chosen should not be an oxymoron.  The problem with “self-represented” is that, if the English language is properly and logically used, you cannot represent yourself.  Litigants are “represented” by lawyers, and lawyers represent parties, because the lawyer is the agent or spokesperson for the client, rather than the litigant addressing the court on his or her own behalf.  Take a look at the relevant Quick Definitions definition of represent at OneLook [“To serve as the official and authorized delegate or agent for. b. To act as a spokesperson for”], as well as Law.com Dictionary‘s definition of represent [“1) to act as the agent for another. 2) to act as a client’s attorney”].  Therefore, it is no surprise that OneLook covers 931 dictionaries and yet “no dictionaries indexed in the selected category [“all dictionaries”] contain the word self-represented.”
               — SRL: this term stands for “self-represented litigants” and suffers from the same linguistic failings as “self-represented.”  Worse, though, it is an acronym and runs afoul of another primary Yabut Linguistic Rule of Thumb: “Acronyms are virtually always confusing and ugly and to be avoided.”   Having spent a couple decades trying to get lawyers to stop using acronyms, it is disheartening seeing self-help practitioners and advocates turning to “SRL,” which must indeed seem alien (and alienating) to the human beings stuck with the designation.   Also consider that Acronym Finder has 26 definitions for SRL and their Acronym Attic has 127 more, and not one of them is “self-represented litigant.”  (Quite a few are amusing, however, if you need a diversion.)
            — Litigant in Person: this term, used in the UK and Wales, seems preferable to the Latinate terms and the oxymoronic self-representation nomenclature.  However, isn’t any human litigant acting “in Person”, especially when showing up at the courthouse?    Granted, the acronym LIP has a nice symmetry when contrasted with having a Mouthpiece, but cuteness can’t of itself get around the acronym hurdle.
          — “unrepresented“:  More precise than self-represented, this term rudely characterizes the lawyerless litigant by what he or she is not, and conjures up notions of the undead and unColas, while suggesting that the good little litigant shows up with a lawyer.   It leaves Prof. Yabut too drained to even bother prescribing a new rule of thumb for un-words.
ProfYabut  Does Prof. Yabut or your shlep editor have a recommendation for the pro se nomenclature problem?  Not really.  I/we do suggest, however, that the word “advocate” might play a role in solving the problem.   Couldn’t the litigant appearing for herself or himself (who is, thus, advocating for himself) simply be referred to in court papers as “advocate,” or “petitioner/plaintiff/respondent/defendant-advocate”?  For example: “John Doe, petitioner-advocate vs. Mary Doe, respondent-advocate.”   That would adequately alert those who need to know, for whatever purpose, that there is no lawyer for a particular party. 
        If we want to start with a hyphenated word when speaking of this class of litigants, such parties are “self-advocates.” (I’m tempted to say autoadvocates, but some people might think the term refers to car buffs.)   Of course, lawyers are also “advocates,” but I have no problem at all with the implication that the self-advocate is on the same level when appearing before the court as a party’s appointed lawyer-advocate.
When referring informally to such litigants, who are appearing or advocating for themselves, “selfers’ works for me.  “Self-Help” still works fine as a noun meaning preparing or advocating for yourself, and as an adjective for centers and resources aimed at such persons. 
        It’s your turn.  Please click on the Comment link at the top of this posting and let us know your reaction to these musings and nitpicking.  Specifically, we’d like to know how to best refer to litigants who appear in court without a lawyer (as their own advocate): 1) in court papers and discourse, 2) among self-help practitioners or academics, and 3) informally in discussions around the water cooler or weblog.

whaddayaknow about Fair Use and Copyright?

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david giacalone - October 23, 2006 @ 2:51 pm · Resources-Consumer, Viewpoint

[Welcome to first-time visitors.  are you still shlepping to justice with
a lawyer on your back?  browse the site to learn about self-help law] 

 

Recently, I noticed a glaringly incorrect interpretation of the Fair Use exception to the protections offered holders of copyrights.  It came in a website warning that attempts to deny the benefits of Fair Use to the public whenever an article is copyrighted.  Section 107 of the Copyright Act says that “fair use…for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”  Sec. 106 specifically states that copyrights are granted subject to the limitations in Section 107.  Although the exact contours of the Fair Use exception cannot be described, certain uses that are appropriate in scope and intent are clearly permitted.  [update (Oct. 24, 2006): Prof. Eugene Volokh, an expert in free speech and copyright law, weighed in on this issue yesterday, and you can find an interesting string of comments at his Volokh Conspiracy weblog. From London, PhDiva also offered an interesting perspective. And, this issue is covered this morning by BoingBoing.  Thanks to Eugene, Dorothy and Cory for helping the public better understand Fair Use rights and responsibilies.] 
              

The e-publication that caught my eye proclaims at the foot of each article (even when it copies someone else‘s press release verbatim without attribution) that no reproduction of any sort is allowed because the “This article is copyright protected and Fair Use is not applicable.”  The site’s SideBar has a similar warning against any reproduction “in accordance with Fair Use of copyright.”  This overreaching is especially perturbing to me, because the e-newspaper prides itself on fighting for “legal reform” and against government abuses using investigatory reports, and good information and clear analysis. 
              

It worries me that free speech and the public’s interests in the exchange of ideas and information might be harmed by such misinformation.   The Wikipedia treatment of Fair Use on the Internet has a list of Common Misunderstandings and the first entry is: “It’s copyrighted, so it can’t be fair use. Fair use describes conditions under which copyrighted material may be used without permission.” 
              

So, whether you are a weblogger who wants to write about a copyrighted work (or who just received a cease and desist demand), a copyright holder seeking protection, or a citizen who wants to stay abreast of an interesting issue that comes up more and more in our digital world, you should know that there are a lot of useful, free sources of information on the web.  In fact, there are so many that we can only try to highlight some that seem particularly helpful. 
              

Three of the most comprehensive resources dealing with the topic of Fair Use are the Stanford University Copyright & Fair Use Center, the Fair Use Network (sponsored by the Brennan Center for Justice at the NYU Law School), and Electronic Frontier Foundation with its EFF Legal Guide for Bloggers.  You can find less comprehensive information at the U.S. Copyright Office site.   The Stanford website offers information on all aspects of fair use — from basics to specialized issues, to legislative activity, to caselaw, to lists of relevant website and articles. 
              

Here are some specific articles and webpages that may fit your needs:              

— The Copyright Management Center, sponsored by Indiana U. and Purdue U. is aimed at educational uses, but offers a Checklist for Fair Use that has general application.

— The Chilling Effects Clearinghouse has an excellent set of Frequently Asked Questions about Copyright and Fair Use, with a nice summary of the four statutory factors.  The FAQ answers the question Do I need permission from the copyright holder to make fair use? like this: “No. If your use is fair, it is not an infringement of copyright — even if it is without the authorization of the copyright holder. Indeed, fair use is especially important to protect uses a copyright holder would not approve, such as criticism or parodies. See Campbell v. Acuff-Rose Music, 510 US 569 (1994).”   When at Chilling Effects, you might also want to check out Betsy Rosenblatt’s Copyright Basics. 

— Kimberlee Weatherall (an academic Australian IP expert) and famed weblogging law professor Eugene Volokh offer14 Copyright Tips for Bloggers, which looks at the issues from the perspective of both the copyright holder and the prospective Fair User.

— Mary E. Carter’s eFuse article When Copying Is Okay is also a very useful document.  As for the kind of copyright notice to use on your website, she advises: “Placing your copyright notice on your Web site is a start to protecting your copyrights on-line. Read some of the copyright notices on the Web sites of newspapers and other mainstream content providers for inspiration on how to word your notice. I generally recommend the simpler-is-better approach. Just place the “circle c” ©, or even just (C), and your name and the year of execution on the first page of your site and leave it at that.” 

— — Nolo.com has a basic discussion on the Fair Use rule (annoyingly spread over 4 pages). [Note: In a lengthy monograph, I disagree with its notion that a haiku poem is too small to every be quoted under Fair Use].  

Admittedly, it is not always easy to know with certainty whether some assertions of the Fair Use exemption are appropriate.  Nonetheless, the Fair Use Network correctly says that “Despite this unpredictability, it is important to assert fair use, and reject assumptions that all uses must be licensed and paid for.”   And, Marjorie Heins put it well in the Online Journal Review  (Feb. 23, 2006, via Ambrogi’s Media Law):  “To the extent that fair use is not used, it will shrink, and to the extent that it is used and asserted, it will remain healthy and even grow.”   Perhaps, the courts or legislature should explicitly decide, as suggested by Judge Posner at Lessig Blog in Fair Use and Misuse, that excessive claims to copyright protection through the denial of Fair Use rights amount to copyright abuse that forfeits the law’s protections until remedied.                 

        

 

p.s.  My own attempt, by email, to suggest to the offending editor the error of her ways (by quoting the statute and referring her to two resources), resulted in an angry rebuff, in which I was accused of practicing law without a license [actually, I’m a retired member of the NY and DC Bars], told that my email would therefore be forwarded to the Attorney General and the paper’s lawyer (who it was implied had okayed their statement denying Fair Use rights), and threatened with hearing from said lawyer, should I take any of their materials.  [She also sent two additional emails with the following messages: “you’re an ass and not worth bothering with” and “Watch NCG—you’re going to have some publicity too.”]  I agree with this assessment of the damage the incorrect statement of the Fair Use doctrine does to the newspaper’s credibility when it analyzes other issues.  I’m not explicitly naming the publication in this posting, because I’d rather not give it direct publicity.   [updates: (October, 25, 2006): One post today describes the [short-lived] improvements in NCG’s copyright warning and one even more threats aimed at shlep‘s Editor by June Maxam, the Editor of the publication in question.  Also, Prof.  Volokh continues to explore the credibility issue, along with many commentors. (October 26, 2006): Maxam has re-inserted “Fair Use is Not Applicable” in her warning; see our post. But, see our Nov. 22, 2006 post, “Maxam’s Gazette Removes Fair Use Disclaimer“]

 

 

 

 

 

 

she’s arrested for rape after pro se support petition

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david giacalone - October 19, 2006 @ 12:43 pm · News Items, Viewpoint

The story of Kimberly A. Baker, of Warrensburg, NY, leaves me with mixed feelings.  Usually, I like individuals to be fully informed when they enter the justice system.  This time, however, I can live with the fact that Ms. Baker might not have filed her petition for child support in Warren County’s Family Court, if she had been in possession of more information, in the form of a lawyer’s advice or a Court Help website with more detailed FAQs on child support and paternity issues.

You see, the respondent father in this child support case is 16 years old, and the child is two years old.  Ms. Baker is 22 years old.  This raised the suspicions of Court staff, who did the math and referred the matter to the criminal authorities.  As reported in the Glens Falls Post Star  (“Child support request leads to rape arrest,” Oct. 5, 2006)
“Baker’s arrest came about five weeks after she filed petitions in Warren County Family Court seeking child support for her 2-year-old daughter, Julianna. 

 

“She identified the father as a 16-year-old boy whom she told the court she had sex with on two occasions in September 2003, when she was 19-1/2, authorities said.   

 

“The problem is the boy would have been 13-1/2 at that point, well younger than the state’s age of legal consent of 17 for sexual relations. As part of the court proceedings, she gave a sworn affidavit admitting to having sex with the teen, officials said.”

 

Baker is not charged with forcible rape.  The statutory rape charge carries a possible prison term of 7 years.  (Note: a Post Star article, dated October 18, 2006, states that the police investigation has led to a second rape charge involving a 14-year old boy in 2003).

handcuffs Any feelings that I might normally have about better-informing pro se litigants of their rights, are overridden by my feelings — after a decade representing children in Family Court — that society must do much more to reduce sexual contact between adults and minors.  Usually, the issue concerns so-called “mature” men and young teen girls who like the attention of older males.  But, the prohibition should be enforced just as rigidly against adult women who prey on young boys — even though, as one interviewee noted on local television last night — “with boys this age, they’re usually lookin’ for something like this.”
      

In 1996, several articles appeared in the Schenectady Gazette about men having sex with under-aged girls.  In a lengthy Letter to the Editor, dated Feb. 21, 1996, I wrote:
“Clear evidence of such unlawful sexual conduct is readily available now in thousands of Department of Social Services and Family Court files. I urge our legislators to construct a constitutionally valid mechanism for family courts and local social services agencies to report such cases to local district attorneys.”

What do you think? Should Kimberly Baker have been warned by the Court not to file this support petition or swear to her sexual activity with a 13-year-old boy?  This is one case where I am pleased that court staff are not permitted to give legal advice.  

 

 

 

Basic Unbundling Agreement

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RickGeorges - October 14, 2006 @ 9:21 am · Resources-Practitioner, Viewpoint

The best resource for help in learning about the unbundling of legal services is Unbundling.Org

This free resource contains some examples of unbundling agreements, and this one, from Maryland legal services, really keeps it simple. It stands to reason that any agreement with a consumer should be readable and easily understandable. However, it must contain the essentials in order to be specific enough to protect the lawyer from designing individuals who mess up their own case, and blame the lawyer. One of the first things I learned as a lawyer was that no good deed goes unpunished. My most ungrateful, hateful clients were always the ones I was helping pro bono . In any event, I am going to expand upon this agreement for use with Small Claims clients whose matters don’t justify a lawyer’s participation. For instance, I might have an initial consultation to explain the Landlord Tenant law, but disclaim liability for pleadings, or court appearances. Or, I might assist with drafting of pleadings, and do an explanation of the law consultation, but not go to court with the client. You get the idea. In this way, the client gets the help she needs, at an affordable price. Of course, most of the sob stories I hear end up in full representation, pro bono. I have GOT to learn to say NO (or partly NO?).

coordinated pro se tax-haters clogging up courts

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david giacalone - October 13, 2006 @ 10:21 am · News Items, Viewpoint

An article in today’s Legal Times discusses a spate of coordinated, mostly-pro-se “tax revolt” cases — 108 of them — that have been filed in federal district courts across the country since last Fall.   (Law.com, “Tax Revolt: Plaintiffs File Coordinated Cases Against IRS,” Oct. 13, 2006)  Reporter Emma Schwartz writes that “The effort hasn’t seen much success; so far, 40 have been dismissed because of the plaintiffs’ failure to exhaust their administrative remedies. But the cases managed to pique curiosity in judges’ chambers.”  It appears that Schwartz has unearthed the mystery man behind the suits, “Chicago-based anti-tax activist George Pragovich”. Although most of the litigants have refused to say who is behind their judicial tax revolt, the wife of plaintiff Paul Broward is quoted saying that Pragovich is “one of the major coordinators of what we’re doing. I just fill out the forms and send them in.” 

checkedBox I’m sure that some observers are going to point to these cases as another good reason to require lawyes for all litigants in federal court — using the legal fee as a deterrent to baseless or harassing suits, with lawyers as toll-taking gatekeepers.  I believe that dealing with such pro se suits is an appropriate “cost” of ensuring the fundamental right of Americans to represent themselves in court.  As stated in our prior post on frivolous pro se litigants, the proprer approach is for courts to use their powers to quickly dispatch cases that do not belong before them — either because they are frivolous or premature.   Our Government knows how to accommodate First Amendment-type rights into the operation of its agencies.   We can’t let those who abuse such rights become an excuse to limit appropriate behavior by the vast majority of Americans. 

realtors fight unbundling (and pols help them)

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david giacalone - October 12, 2006 @ 12:22 am · News Items, Viewpoint

The management at shlep was too busy preparing for liftoff, on Sept. 3, 2006, to pay sufficient attention to the New York Times article “The Last Stand of the 6-Percenters?.”   Nonetheless, we want to bring it to your attention, now, because it highlights the battle being waged by real estate brokers and agents (realtors) to deprive home sellers and buyers of the benefits of unbundling, price discounting, and the information-access potential of the internet.   Although most sellers and buyers still hire real estate agents, neither are required to do so, and there are self-help materials available to guide the do-it-yourselfer through this process, or make it possible to do some of the tasks traditionally performed by brokers.  Of course, you have to be able to find an agent willing to unbundle his or her services and take on discrete tasks at a lower price.  [See the Nolo.com articles Do You Need a Real Estate Agent to Sell Your House? and Should I Hire a Real Estate Agent or Lawyer When Buying a House?]   

  

That’s nice, you might say, but why is a website focused on self-help law focusing on this topic?  The answer is that realtors have been trying (successfully in several states already) to get laws passed that would make significant unbundling unlawful.  Here’s how I explained the situation last year at f/k/a, in the posting “Realtors and Legislators Are Selling You Out“:    

  

Realtors like receiving that large, uniform commission — usually 6 or 7 percent of the purchase price — every time they sell a home.  Therefore, they dislike discount brokers, and particularly those who unbundle services and let home sellers pay a flat fee for each service or an option package. Of course, if the realtors conspired together to exclude, punish or otherwise disadvantage cut-rate or fee-for-service brokers, they would violate the antitrust laws. 
   

However, realtor associations have found a sword against discount brokers and a shield against the antitrust laws:  They’ve been successfully lobbying state legislators, who have dutifully enacted so-called “minimum service laws” (in the name of consumer protection, of course), which require brokers to provide a broad set of services, regardless of whether the consumer wants or needs them.  Because trade associations can lobby without violating the antitrust laws (under the Noerr-Pennington doctrine), and they receive “Parker“ or State Action immunity from the antitrust laws for conduct that is required under a state law, consumers in many states have no antitrust protection against minimum-service laws, and now face fewer choices and higher fees when they sell or buy a home.

RealtorSign According to the GAO, ten states have or are considering minimum service requirements for brokers.  (see A Summary of the American Antitrust Institute Symposium Competition in the Real Estate Brokerage Industry, by Norman W. Hawker, Sept. 21, 2006, at 18; and related articles reprinted by the Real Estate Law Journal, Vol. 35, #1).   The Federal Trade Commission and Department of Justice have attempted to stymie this legislative end-run around competition and consumer choice by realtors, by filing advocacy submissions in Texas, Alabama, Missouri, and Wisconsin.  So far, though, their efforts have been fruitless.  The two agencies stated in their advocacy letters that “that these laws would reduce consumer choice and likely lead to higher prices for real estate brokerage. Further, in reviewing minimum-service brokerage proposals in several states, we have not encountered any evidence of consumer harm from limited service brokers (for example fraud or misfeasance) that would justify these minimum-service laws.”
   

The FTC did get a consent agreement from the Austin [TX] Board of Realtors in July, 2006, after bringing charges that they were illegally restraining competition from discount brokers, by effectively preventing consumers with real estate listing agreements for potentially lower-cost unbundled brokerage services from marketing their listings on important public Web sites.  Unfortunately, such restrictions would be perfectly legal if the realtors got them adopted by the Texas legislature, which gladly passed a minimum services law last year for their friendly realtors. 
   

Sellers of homes should not have to go the complete FSBO route (For Sale By Owner) in order to escape the high uniform commission fees regularly charged by realtors. For example, the seller who wants to show the home and advertise it herself should be able to find real estate agents who can lawfully perform other more complicated tasks.  Also, buyers shouldn’t be deprived of using less-expensive internet-based agents (who often rebate a large portion of the fees they get for the sale).  For there to be a “middle ground,” however, citizens must be vigilant against the passage of minimum brokerage services laws.  [Read the entire NYT article for more colorful details, and also the response of a weblogging realtor at 360Digest, who was quoted in the piece saying the discounters may be “trying to manufacture controversy.”]
   

Legislative  HouseForSale  ?

update (Oct. 12, 2006): According to Mark Nadel’s AEI-Brookings Article on real estate broker commissions, discussed at length in our update post, there are seventeen states with minimum services laws that restrict unbundling: Alabama, Delaware, Florida, Georgia, Illinois, Indiana, Iowa, Missouri, Ohio, Oklahoma, Pennylvania, Tennessee, Texas, Utah, Virginia, Washington, Wisconsin.   [thanks to David Fischer at Antitrust Review weblog for pointing to this post]

divorce mediation: mutual self-help

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david giacalone - October 8, 2006 @ 4:10 pm · Resources-Consumer, Viewpoint

 

 

The newest Nolo Law in Plain English podcast was posted yesterday, and asks the question Do Dads Get a Fair Shake in Divorce? (with Paul Mandelstein, author of “Always Dad: Being a Great Father During & After Divorce,” (Nolo). The podcast “discusses issues of custody, fairness, ‘right speech,’ and the effect of past actions on divorce decisions.”  (Oct. 7, 2006, 12 min.)  Although it’s a good one (ask ethicalEsq), I don’t want to opine on the question presented by Mandelstein.  Instead, I want to suggest that divorce (or custody/visitation) mediation can often be the best way to create a parenting plan that is fair to both of the parents and to the child, while avoiding some of the worst aspects of litigating family law issues. 
  

To me,* divorce mediation can be seen as “mutual self-help” for couples with children who have separated.   The Alaska Court System mediation page has an excellent introduction to mediation, and what it can and can’t do for a divorcing (or otherwise estranged) couple.  It’s answer to the question What is Mediation? is a good one: “Mediation is an informal, voluntary and confidential way to resolve disagreements without giving the decision-making power to someone else, like a judge. A neutral person, called the mediator, helps people: figure out the important issues in the disagreement; explain and understand each others’ needs; clear up misunderstandings; explore creative solutions; reach acceptable agreements.”  Most important: “The mediator does not tell the parties what to do, or make a judgment about who’s right or wrong. Decision-making stays with you.”      
 

You can find information about mediation at the websites of many courts.  Use our SideBar to help locate relevant webpages.    Nolo’s Divorce Mediation FAQ and discussion Will Divorce Mediation Work for You? are also worth a look, if you are considering using mediation.          

Beyond asking “Do you want to send your children to college or your lawyers’ children to college?”, there are two points that I always made to my divorce mediation clients that are worth repeating: (1) it always helps to know the law when you’re going to be negotiating legal issues — so, seek out self-help materials or advice from a lawyer before sitting down to mediation.
. . . . . And, (2) divorcing is much more a personal and family crisis than a legal crisis, and very few people know instinctively how to do the job of parenting after separating — so, do some “two home” homework, for your sake and your child’s.   There are a lot of good books about parenting after divorce.  There are also some websites with good, practical advice, such as Parents are Forever, hosted by Dr. Shirley Thomas, author of the excellent book of the same title.   You might also consider my own short monograph, Tips for Parenting Apart, which discusses the goal of creating a “businesslike” co-parent partnership and includes quite a few Do’s and Don’ts.  Also, many court and private sources have seminars and programs about co-parenting (with names such as Children in the Middle and Parenting-Apart.  Please consider taking them, and remember that a bad co-parenting situation can often start to improve even when just one of the parents (and it’s usually the more reasonable one) takes one of these courses.         

  

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* Admittedly, I’m biased on the issue of litigating vs.mediating divorces (even though retired): Volunteer work for the D.C. Superior Court “Multi-door” Family Mediation program, in 1987 and 1988, led me to switch from antitrust to family law, with the goal of creating a divorce mediation practice.   Then, representing scores of children in Family Court custody and visitation disputes, and in contested divorces, gave me a close-up view of how wrong-headed litigation (and lawyers) can be in such cases — while my own mediation practice demonstrated that even two angry people can very often be helped to reach agreements that, for the sake of their children, they both want to make successful. 

spread the news: kvetchin’ & kvellin’

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david giacalone - September 26, 2006 @ 11:57 am · Viewpoint

An editorial over the weekend in the upstate New York based North Country Gazette reminded me that self-help-law advocates can advance our cause in two important ways :  1) get our message to the mass media (as news and opinion) and 2) make sure we’re both kvetchin’ and kvellin’ — complaining about what’s wrong and needs to be done in the current system, but also pointing (often with with pride and pleasure) at what has been accomplished and is already available to the public. 

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frivolous pro se litigants: who’s to blame?

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david giacalone - September 22, 2006 @ 1:57 pm · Viewpoint

An interesting debate started on lawyer weblogs this week: Do pro se litigants bring meritless lawsuits because they are underlawyered or because our overlawyered judicial system has too many attorney-supported incentives for bringing marginal claims? 

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can a parent be the “self” in “pro se”?

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david giacalone - September 21, 2006 @ 8:24 pm · News Items, Viewpoint

The SCOTUSBlog, which covers the U.S. Supreme Court very well, reported yesterday (Sept. 20, 2006) that the Justice Department has urged the high Court “to clarify when a non-lawyer parent of a disabled child may file a lawsuit, without a lawyer, to enforce the child’s rights under the Individuals with Disabilities Education Act (IDEA).”

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could “for-profit charities” fund self-help lawyering?

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david giacalone - September 19, 2006 @ 12:03 pm · Viewpoint

MyShingle weblogger Carolyn Elefant is rightly skeptical [as was ethicalEsq] about the ability of traditional pro bono efforts to make a dent in the access to justice deficit in our society — even when sponsored by large corporate law firms (see Law.com article, Sept. 18, 2006).  After thinking about Google’s efforts to use for-profit entities to achieve public interest results (see NYT article, Sept. 13, 2006), and checking out Prof. Eric Posner’s recent thoughts on for-profit charities, Carolyn used her forum at Law.com’s Legal Blog Watch yesterday to ask “What About a For-profit Pro Bono Corporation?” (Sept. 18, 2006).  She wondered:

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