Access to justice for those who can’t afford lawyers

Tuesday, March 31, 2015

UPDATE  |  By Harry M. Reasoner, Commission Chair

If you type “How do I write a will in Texas” into a Google search, you will get over 250 million results.

On the first page, you’ll see a variety of do-it-yourself legal sites offering fill-in-the-blank forms claiming to adequately fulfill the requirements for a viable will. Some of those websites have workable forms that low-income Texans can use to furnish their own legally binding document. But much of the time the forms are too complicated or not based on Texas law. Those who can’t afford attorneys can lose the family’s home and modest assets because they lack a will. 

The Commission is supporting Texas lawmakers who seek to pass legislation creating free and easy-to-use Texas Supreme Court-approved forms that low-income Texans can use to make a will and to probate their estate. Another bill would do the same thing for tenants seeking legal action against a landlord trying to evict them without just cause. 

Texas lags behind many other states in creating such forms for all kinds of critical legal problems. The Commission supports their creation because there are simply not enough lawyers volunteering or funds available to serve the poor who qualify for legal aid.
Forms offer an effective way to provide legal aid to the poor that does not require monetary appropriations. 

Probate forms
Senate Bill 512 by Judith Zaffirini and House Bill 1851 by Senfronia Thompson would create forms for use in probate matters, such as small estate affidavit forms and will forms.
State law prohibits Texans from representing themselves in probate court, except in very limited circumstances, so families trying to obtain property from deceased relatives must still pay for an attorney. But the will forms would make the process easier and faster by helping poor Texans complete this vital document before they die, making it clear who will receive their property.
The small estate affidavit forms help family members obtain the property of a relative who died without a will. The small estate affidavit can be used in limited circumstances where the total value of the property, excluding the home, may not be more than $50,000. 

Landlord/tenant forms
If a tenant asks his landlord to fix a serious maintenance issue with his apartment, like a broken air conditioner or a leaking pipe in the kitchen, what happens if the landlord files an eviction notice instead? 
Sometimes those disputes are over accessibility issues, like the landlord’s compliance with the Americans with Disabilities Act. 
Either way, the tenant would need to seek legal action to prevent the eviction. For the state’s poorest residents, many of them living at the edge of homelessness, this is a problem with potentially severe consequences if they can’t afford legal help. 
The easy-to-use forms suggested by Senate Bill 478 by Judith Zaffirini and House Bill 2196 by Senfronia Thompson would allow these Texans to seek justice when they can’t afford a lawyer.

Support forms for pro se litigants
Almost all 50 states have standardized forms like those described above. Some attorneys have expressed anxiety about a negative effect on their practice from officially approved forms. 
While their anxiety may be understandable at first blush, review of the facts shows none of the states with extensive libraries of forms have experienced such problems. The people using forms can’t afford an attorney. 
Four out of five in Texas who qualify for legal aid must be turned away. Forms can provide access to justice to some of those who are turned away. 

Harry M. Reasoner is the chair of the Texas Access to Justice Commission and a partner at Vinson & Elkins in Houston, Texas. His principal area of practice is complex civil litigation, including antitrust and securities litigation. He is a Fellow of the American College of Trial Lawyers, the International Academy of Trial Lawyers, the International Society of Barristers, and the American Bar Foundation.