Another steel gray morning, cold as a meat locker – a sullen fog drifts among the cedars. I should be preparing to greet the Christmas season by decorating my tree and my house, but instead I am neck-deep in trying to defend myself against a lawsuit sprung on me by a crazy neighbor. She is taking advantage of the fact that a property between us is now abandoned and going into foreclosure to steal back an easement that has existed across her property since 1948. That would not have bothered me except that she is insisting that a piece of my property become part of the new easement for the other house. And also her complaint swapped exhibits so that she was claiming to own my property.
There are thousands of lawyers in this country, so you'd think the competition would keep the price down. But that should be true about doctors too, right? And we all know what they cost. I discovered that legal help is like medicine – if you don't have some kind of insurance or coverage, you can't get it, unless you are willing to go bankrupt. $200 an hour eats up a disability check like a starving dog gulps a hot dog – blink and it's gone. Unless you have tens of thousands of dollars to pay for a lawyer who understands the ins and outs of property law, you have very little chance to defend against an unscrupulous neighbor with a lawyer. And although you may be allowed to defend yourself in civil court, it's like going to court in Japan or Russia and trying to state your case – the language and the rules are completely foreign.
I stare in gut-twisting panic at the Plaintiff's First Request for Production of Documents – she wants my insurance policies? All appraisals? Any building permits, site plan reviews, correspondence with the county? The easement is across her property! My property has nothing to do with this! And also any "book, pamphlet, periodical, letters, reports, handwritten notes, message, telegram, draft, diary, analysis, summary, circular, minutes, photographs, purchase order, working paper, records of purchase or sale, electronic or other transcriptions or taping of telephone or personal conversations" ....?!?
I live on disability, am technically eligible for Legal Aid, but the next unpleasant surprise is that the legal safety net is as thin as the social one. We have public defenders for criminal cases (and I can't imagine what it might be like to try to defend yourself against criminal charges without one). But many cases are civil, for which is no public defender. I found out as I called one place after the other that the safety net called Legal Aid, or my state's so-called "Modest Means" or the Lawyer Referral service are not actually as available as they appear to be when optimistically mentioned in the press. I know they have done good work. The Legal Services Corporation, which runs what folks know as "Legal Aid," says they closed 758,689 cases in 2013 (their most recent data) – but they also mentioned that 63.5 million are eligible for their services - being at or below 125% of the federal poverty guidelines – in 2014, $14,588 for an individual, $29,813 for a family of four (1). I'm not a statistician, but 63.5 million minus 758,689 leaves... a LOT of people who totally can't afford legal services! So I guess I'm not surprised that there wasn't a spare lawyer for me.
And that doesn't even count the people who don't technically qualify for low income legal services, but who are very likely not going to be able to spend $10,000 and change to fight a lawsuit. (I would love to know how many lawsuits are initiated that count on that fact – that most ordinary people will end up caving because they cannot spend their entire retirement fund for an uncertain outcome.) And apparently in civil cases, attorney’s fees are very rarely recoverable. Even if you win, you lose. Most of us are responsible people who take pride in paying our own way – but I'm here to tell you that you can't afford legal services any more than you could afford to pay for your own surgeries. And lawsuits are a lot like accidents – you never know when one's gonna hit you.
So, how do I say "no" in legalese? How about "Defendant's property is not involved except to the extent of owning an easement across Plaintiff's property, so Defendant's insurance policy has no bearing on this case and need not be produced." Repeat that 16 times for the rest of the items.
As a writer, I have a lot more experience in research online and in libraries than many people do – and during the many hours I was researching the facts, the possible facts, the quirks of the law applying to the possible facts, I was thinking about those who are trying to fight a landlord, or about to lose a child, or who have other life-disrupting situations, who are somehow supposed to figure out the legal system well enough to appeal for justice. Those people who are working two jobs and can't get down to the law library that is open between 10 and 12 a couple days a week. People who have a difficult time with plain English let alone the finicky jargon that has become the language of the courts. Those who don't have online access to the statutes of the state that they are living in.
She states this easement has been abandoned and we were using some other road – how the heck does a normal person prove that they've been driving along a road? I don't take selfies as I drive! What constitutes proof? Can I subpoena the garbageman to say whether he was picking up garbage cans for the last several years? Or the gas company that came to check the meter? How does one issue a subpoena??
Homeowner/real property cases mostly are excluded from Legal Aid work – only 8,476 (1.1%) of the 2013 case total. There are more than enough employment (22,447), consumer/finance (83,463), housing (aprox. 207,000) family issues (almost 250,000) and other life-changing cases to occupy the few lawyers who do this charitable work (2). So as a senior disabled woman who has finally paid off her own house, carefully tucking away some retirement funds to pay the property tax, something like a grasping neighbor could still leave me teetering on the brink of insolvency – had I chosen to hire a lawyer out of fear.
How the hell do I reply to this complaint?? I guess I start like my college term papers – copy the form exactly as they have it, margins and tabs and capitals. Then I can take the plaintiff's lawyer's words, turn them around, say "does not" where she says "does" – basically, use her language and structure and hope there isn't some magic code that the defendant has to insert.
What I didn't understand until I went through it was how the system wounds the victim in more ways than just the terrible frightening daily fear of impending crisis with no one to even explain what the consequences could be.
Because there are all the friends and family who still believe the myth that there is a legal system that is responsive to the ordinary person, in the same way they believe the medical system would be there even if you can't afford it. Time after time, you are forced to tell them that no, Legal Aid, and all the other services do not have anything, and no, the law schools do not take on practice cases – that in fact you are on your own. This is not what they want to hear, so with increasing fear, they push their suggestions, and on top of your own rising terror, you have to deal with well-meaning but frightened loved ones.
They're attempting to have the whole case decided by default, before I can even present the pieces of information that I gathered and put into legalese! My co-defendant, the person who once resided at the abandoned house didn't respond to the summons (duh) and my attempts to contact the bank that owns or will own the place got me some call center in India. Now what??
And then there is the repeated feeling of failure and shame when doors are shut in your face and your requests for assistance are met with, "it's $250 an hour – and my assistant is $150 an hour – and the secretary's $100 an hour" or "I can't answer that for you – you need to hire a lawyer". Or when you stare at some legal precedent case that looks like this: Powers v. Coos Bay Lumber Co., 200 Or 329,263 P2d 913 (1954). Say what?
Well, this is the sixth form I've had to drive 40 miles to file: "Defendant McGuire's Response To Plaintiff's Reply To Defendant's Motion To Set Judgment In Abeyance" – that's a mouthful. Hope I got the title right. And then when I stand online and file it, the new clerk looks panicked, turns to the older clerk and whispers "she has the wrong code," and I see the gesture from the older clerk to just turn around and enter it – they're not allowed to give legal advice. All that work for nothing?
Despite the pretense of being "able" to defend yourself in court, you can't even get to that part unless you know the codes and the language that make these filings acceptable. Truth has nothing to do with it. I quickly learned the phrase "de facto is not de jure" – which simply means that just because it's blinding obvious doesn't mean you can bring that information into the court. You must know how to package it or twist it such that it fits into the slots of the legal system. My other neighbor, whose road was also involved in the crazy neighbor's pipe dream but was not mentioned in the lawsuit, was told by the judge that he would have to file his own lawsuit in order to say anything regarding easements across his road.
So what is she saying in her Plaintiff's Reply To Defendant's Objection To Plaintiff's Motion For Entry Of A Default Judgment? "Comes now the plaintiff… and objects to objection as untimely" that obviously doesn't mean what it means in English. Oh, here – "Plaintiff only requests that Defendant use the driveway on her own property." Except that driveway doesn't exist. She's talking about a non-existent roadway! How do I prove that? Doesn't plaintiff have burden of proof?
None of this is trying to deny the very good work that some lawyers do for Legal Aid or similar programs. I did in fact find a lawyer who was willing to see me for half an hour for $35, and not only did he let it go for 15 minutes more, but he provided me with several pages of helpful references to look up and some good insight as to how the judge might see the case. Many lawyers and judges are very aware of the injustice currently built into the system. In Floyd v. Cosi, a Federal judge recused himself from a case after a litigant’s pro se (by himself) status caused the judge to be more helpful than was lawful. He said, in part: “In many cases, pro se justice is an oxymoron. Without representation by counsel, it is probable, to some degree, that adequate justice cannot be served in this case.”(3)
Finally the guy on the other side of me, who owns 250 feet of the proposed new easement but who had been left out of the lawsuit completely, has decided to make his ownership clear by installing a gate across his road. Possession is 9/10 of the law, they say. But I'm afraid the other tenth is an expensive lawyer.
For me there was a sudden and happy ending: one Monday morning two weeks before I was due in court, I got a call from the plaintiff's lawyer asking if I would have any objection to dismissing the case in its entirety. Since I had already filed a motion to dismiss, I would've thought the answer would be obvious. Because my crazy neighbor is still in hating mode (and is still blocking the easement), I will probably never find out why she/they decided to drop the suit – did the lawyers decide they did not want to show up in court with just a photo of a goat on a dirt road as proof? Did my neighbor run out of money? Did the new gate across the road finally wake her up? Who knows? And I'll never know whether I would have been able to successfully defend myself against a lawyer, even given that they had no discernible case.
After six months of very hard slogging through the complexities of the Oregon civil court system, I was suddenly free. But the thought of all those others trapped in the system continues to haunt me, which is why I wrote this article, and why I will continue to look for ways to promote a more fair judicial system.
Maybe these options wouldn't work, but let's have the discussion in public. Why can't we:
• have a panel of lawyers looking over each incoming lawsuit to decide if it's even within the realm of reality? (Apparently anyone could have seen that claiming exclusive ownership of an easement for two years in a state that requires 10 years of ownership means the case was dead from the beginning.) It could save the court from wasting time/money as well.
• put some money and time into a computer system that might assist those who have to defend themselves by providing relevant data a little more easily? (LawHelp.org has made a great start, see below)
• have some sort of penalty for those who hire a lawyer to sue someone who can't afford a lawyer (call it the Bully tax)
• have some kind of requirement that if you sue someone who can't afford a lawyer, you have to chip in a bit to pay for assistance for them
• allow for recovery of attorney fees from a plaintiff who's filed a harassing or frivolous lawsuit
• provide a public defender for civil cases
• require all law school graduates to put in volunteer time (like interns in hospitals) to help with the enormous need for affordable legal advice and representation?
Here are some of the agencies that are helping with this issue – support funding for them, and ask your Congressional Reps and Senators for more equitable access to the legal system:
http://www.civilrighttocounsel.org/
The National Coalition for a Civil Right to Counsel is committed to ensuring meaningful access to the courts for all. We work to expand recognition and implementation of a right to counsel for indigent litigants in civil cases involving basic human needs.
http://www.probono.net and http://www.lawhelp.org
Pro Bono Net partners with legal aid organizations to promote collaboration and maximize their impact on justice issues, connect lawyers with resources to increase pro bono involvement, and provide critical legal assistance and information directly to the public. LawHelp.org has been created for people living on low-incomes and the legal organizations that serve them. LawHelp.org provides referrals to local legal aid and public interest law offices, basic information about legal rights, court forms, self-help information, court information, links to social service agencies, and more in your state. State LawHelp.org sites are developed and maintained in partnership with hundreds of nonprofit legal aid, pro bono, court-based programs and libraries across the country.
*Source documents:
(1) http://www.lsc.gov/...
(2) http://www.lsc.gov/...
(3) http://www.civilrighttocounsel.org/...