November 14, 2012

Adding By Subtracting? How Limited Scope Agreements for Dispute Resolution Representation Can Increase Access to Attorney Services, by Kristen M. Blankley

By Sarah Cole

Professor Kristen Blankley, of the University of Nebraska College of Law, gave an informative talk about a little discussed device — limited scope representation. Here is Kristen’s abstract:

Given the complexities of the legal system, pro se litigants understandably have difficulties navigating the legal labyrinth, and empirical evidence confirms that unrepresented parties rarely prevail in litigation. In other words, pro se litigants often do not have true “access to justice.” One effort to increase access to justice for those otherwise unable to afford legal services has been in the area of unbundled legal services, or limited scope representation. Traditionally, providers of unbundled services have focused on litigation activities, such as document drafting and hearing representation. These actions, however, simply move a pro se litigant along in the process without ever helping those parties resolve the real issues facing them. This Article brings a new suggestion to the literature dealing with limited scope representation by urging counsel and clients to use unbundled services to settle cases – not prolong them. Through the use of effective client counseling, attorneys and clients should spend funds for limited scope representation on alternative dispute resolution services, including negotiation counseling, negotiation representation, collaborative law, cooperative law, mediation counseling, mediation representation, and arbitration representation. These types of services have the means to truly achieve client interests and solve disputes, thus making them the most economical choice for clients. Attorneys, court systems, and pro bono groups also benefit from the proposal by giving increased work to attorneys, lightening court dockets, and offering manageable pro bono opportunities.

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Comments

  • Susan Yates says:

    I’m glad to see someone writing about this concept. In Illinois we have seen it work in foreclosure cases in the state courts and employment discrimination cases in the federal courts.
    Limited representation in ADR is also a great way for lawyers to provide pro bono services without having to sign on for the life of a case.

  • Kristen Blankley says:

    Thanks for the comments, Susan. I have had a lot of fun working on this project, and I really hope that the idea takes off. I would be interested in hearing about your experiences in Illinois in seeing these practices in action!

  • You are “preaching to the choir” here! :) Too often, lawyers and systems do anything but empower parties. Any time we can give them new knowledge or skills to both resolve the instant matter and prepare for inevitable conflicts ahead, we leave them and the system better than we found them. We don’t have to fear this will put us out of business. We are human. There will always be conflict, and there will always be people who will be willing to pay for services they know they can’t perform efficiently or effectively. (Look how much we pay others to do now that we can clearly do ourselves: cleaning, maintaining vehicles, repairing everything from plumbing to clothing). It’s time to stop acting in fear and start living in the power of community and collaboration. That is where true resolution lies. xo

  • gary weiner says:

    Hi, Susan. ; )
    This makes all the sense in the world. There is a slight wrinkly in CA although it actually might make this even more appealing for attorneys in our state. Under our current mediation confidentiality protections the recent case law essentially precludes proof of attorney malpractice because all communications in preparation for, during, in furtherance of and pursuant to (whatever that means) are protected. Even in malpractice cases against the lawyer herself. See Cassel v Sup. Ct.

  • Cierra Chesir says:

    I believe this article hits the nail right on the head. One of the biggest lessons I have learned in ADR this semester is most clients do not want to go to court. It’s an expensive, long, and drawn-out process that usually doesn’t give them the results they want. ADR gives attorneys the opportunity to really learn what their clients desire. Once these underlying interests are figured out, the process usually runs much smoother and less cases are taken to court, which is beneficial for everyone.

  • Kristen Blankley says:

    Thanks all for the helpful comments! I appreciate it.

  • Jessica Shank says:

    Pro se litigants seem to often get pushed around and lost in a system they don’t understand and cannot do as quickly and affectively as attorneys. To have an attorney to help a pro se litigant work through the system and feel empowered would benefit both groups.

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