Wisconsin Lawyer
Vol. 82, No. 11, November 2009

A lady just left our office. Here is her story.

Two years ago this lady bought a house for $200,000 with nothing down. She wasn’t really doing it for herself anyway – she was going to resell it to her good friends. The deal was that they would move into the house, make the payments, keep the utilities current, and then on Sept. 1, 2009, would refinance and take her out of the deal. The reason they were doing this, of course, was that the friends did not have a decent credit rating. She drew the document herself, by which she was “selling” on the installment basis to these buddies. It was straightforward enough: The friends were to pay her off by Sept. 1, 2009, with a refi (nothing more). Surprisingly, the friends missed payments, failed to pay the taxes, and trashed the house.

I can get beyond the fact that this was a bank fraud. I can understand (sort of) how this lady would extend $200,000 in credit to someone who is not creditworthy. And the “due on sale” clause is probably merely advisory. The “owner’s occupancy affidavit” is merely a formality. Here is my problem: This whole thing was done with no lawyers involved.

I want to add one more fact: The lady in question is a college graduate and a professional.

We get stories like this all the time. How did we get to be a culture that accepts the proposition that going to a lawyer is akin to visiting a house of ill repute? Why do people think that lawyers are untrustworthy? Or that a layman knows enough to prepare his own documents?

The answer is obvious. During the last 40 years “lawyer bashing” has become ubiquitous and pandemic. During the 2002 election, presidential candidates from both parties were talking about tort reform. Even now President Obama (in trying to get healthcare reform through Congress) is talking about limiting medical malpractice awards, even though it is well established that the entire liability system accounts for less than 1 percent of healthcare costs in this country. “Fixing” malpractice litigation is like trying to resurrect Chrysler by scrutinizing what that corporation spends on paper clips!

I don’t care whether the person reading this article is left wing, right wing, or middle of the bird. Every denigrating comment about lawyers hurts all of us. There is probably some fair criticism that we should acknowledge, do acknowledge, and should correct. But we can’t be justly blamed for the healthcare crisis, the economic collapse, teenage acne, or foul weather.

Whatever the solution, it won’t be easy. There are powerful forces in this country that meet justice in the courtrooms – and nowhere else. They can manipulate administrative agencies. They can lobby legislators. Manipulating the courts is much harder. Or at least it has been historically.

We are entering the era of court bashing. Soon those “tassel-toed lawyers” will be bringing their “frivolous lawsuits” before “activist judges,” and all of us will become legitimate objects of scorn. (Want proof? Just look at what the legislature has done to the court’s budget.)

Lawyers younger than I am need to pick up the gauntlet. Doing pro bono cases won’t get it done. Nor will becoming an esteemed member of the city council, or deacon of the church. The fix to this problem will be a paradigm shift of tectonic proportion. Hundreds of millions of dollars have been spent getting us here, and the balance won’t be tilted without adding enormous heft to the empty pan.

I offer no solution. I do think that we must keep our eyes on the horizon 20 years out and not become so mired in the day-to-day problems facing us that we lose sight of the ultimate problem. Our myopia would be the downfall of our most basic principle – justice under law for all.

Wisconsin Lawyer