Court cases in California have plummeted. Here’s why the state’s chief justice says it’s a very troubling sign
Story by By Bob Egelko, 12/2/2022, San Francisco Chronicle
EDITORIAL: This indicates that the legal system and the courts have priced themselves out of the market, leaving only the RICH to to be able to afford the luxury of justice. This is why you MUST learn the law, which is because the its the only way to get justice without a lawyer and without running up a big bill.
Most people, other than lawyers, would usually prefer to keep their distance from the courts. But California’s chief justice says a substantial decline in filings with the state’s courts, for more than a decade, is a sign of trouble for the legal system and the people it serves.
Since 2010, filings of all types of cases in the state’s courts have dropped from about 10 million a year to 3.5 million, Chief Justice Tani Cantil-Sakauye said Wednesday in her last annual meeting with reporters before her retirement in January. According to court records, she noted, the decline began years before the start of the coronavirus pandemic in 2020.
The filings include new criminal prosecutions, but most of them are civil lawsuits. Records indicate that some of the drop-off involved relatively minor suits filed in Superior Court or in small-claims court.
It appears to be a sign, Cantil-Sakauye said, that fewer Californians can find a lawyer or afford to pay for one.
“Where are the tort (injury) cases going, some of the consumer and employment contract cases?” she asked. “They’re going to mediation and arbitration (rather than court) or they’re not getting filed because of the justice gap,” the inability of low-income people to access the court system.
The State Bar reported in 2019, based on a survey of nearly 4,000 Californians at all income levels, that 55% said they had experienced one or more civil legal problems in their household in the past year, but they sought legal help for less than one-third of those problems, and received inadequate legal assistance, or none at all, 85% of the time.
The most common problems involved health, finances or employment, the bar said. It said the most common reasons people gave for not seeking aid were lack of awareness that their problem was a legal issue; fear of the legal system; uncertainty about where to look for help; worries about cost, and a belief that they needed to deal with the problem on their own.
The bar said Legal Aid organizations that it funds in the state employ about 1,500 attorneys and receive voluntary service from 16,000 more lawyers, but about 9,000 more full-time attorneys would be needed “to fill the service gap and fully resolve all civil legal problems experienced by low-income Californians.”
From all indications, Cantil-Sakauye said, “there’s more injury and no recompense for it. I worry about the rule of law.”
Similar worries exist nationwide, said Jeremy Fogel, a former federal judge in San Jose who now heads the Berkeley Judicial Institute at UC Berkeley School of Law. He cited a report last year by the Institute for the Advancement of the American Legal System, based on a survey of more than 10,000 people, that found 66% had experienced at least one legal problem in the previous four years, and only 49% of those had resolved their problems.
“The system is not set up to deal with the underlying problems. It’s set up to deal with the legal problems,” Fogel told The Chronicle. “The system is in some ways rigid and inflexible.”
Attorney Mary McNamara, president of the Bar Association of San Francisco, said Cantil-Sakauye “is exactly right to be sounding the alarm.”
“The more the rich get richer and poor get poorer, the less the court system is useful to people and the less they even know about it,” McNamara said.
She said the BASF has the largest legal-assistance program of any local bar association in the country, aiding the homeless, those facing eviction or loss of benefits, immigrants and other needy San Franciscans with services worth about $23 million a year, provided by the city, donations and lawyer volunteers, but much more is needed. San Francisco voters in 2018 approved Proposition F, providing city-funded legal assistance to tenants facing eviction, but McNamara said communities nationwide should go further and provide free legal help to low-income residents in matters involving basic human needs, like food, housing, health and child custody.
Another reason for the decline in public filings, said Stanford Law professor David Engstrom, is the proliferation of contracts by banks and other businesses requiring customers to agree to arbitration — a private system separate from the courts — on issues such as debts, mortgages and evictions. Such cases now make up as much as three-quarters of all proceedings in state courts around the country, he said, while three decades ago they were about equal to the number of suits filed over auto accidents and other injury cases. Arbitration proceedings are held behind closed doors, the decisions are virtually unappealable and most of the rulings favor businesses, the arbitrators’ frequent customers.
“American law has grown a lot less plaintiff-friendly in recent decades,” said Engstrom, recently chosen by the American Law Institute to lead a study of high-volume civil litigation.
Fogel, the former federal judge, said legal organizations could also be more flexible in making aid available. The State Bar has considered allowing “paraprofessionals,” non-lawyers with legal training, to assist low-income clients on issues such as consumer debts, unemployment claims and adoption. But a number of legal organizations sponsored AB2958, legislation to limit the development of such programs, and Gov. Gavin Newsom signed it into law in September.
Legal groups raised “some legitimate concerns” about work by non-attorneys and their lack of regulatory oversight, Fogel said, but “we have to rethink what kind of help people need, how courts could be more receptive, how the bar and the legal profession could be more responsive.”