Why indeed. We've used a
marketing piece for some time that explains the “what” of FALDP,
among other statements, it says: “FALDP is an industry leader –
empowering the people – and working everyday to make Florida a
better place to live”. I believe those words are true, I fervently
hope that we are, in fact, making Florida a better place to live.
But, why? Why did we form FALDP? Why is there a need for us? What is
our reason to be? Our raison d'être ? The
phrase, « find your why » has been bandied about of late,
and has sunk from a catch phrase to a cliché by now. But, phrases
become over used for a reason. Its because they resonate, hit a
nerve, and yes, sometimes the last nerve.
The simple
reason we exist is that people need us. People need document
preparers. Not want, need. Our services are steadily in demand.
''You
can't fight for your rights if you don't know what they are .''
Chief Justice John Roberts
''One
of the primary reasons our nation’s founders envisioned a vast
public education system was to prepare youth to be active
participants in our system of self-government. The responsibilities
of each citizen were assumed to go far beyond casting a vote;
protecting the common good would require developing students’
critical thinking and debate skills, along with strong civic
virtues/.''
Low knowledge of essential
facts
The 2018 Annenberg civics
knowledge survey, released for Constitution Day (Sept. 17), found
that many people do not know how the branches of government work:
- A quarter (27 percent) incorrectly said the Constitution allows the president to ignore a Supreme Court ruling if the president believes the ruling is wrong;
- But a slim majority (55 percent) knows that a 5-4 Supreme Court decision is the law and must be followed, about the same as last year.
Why am I telling you this?
And what does this have to do with FALDP? We're document preparers,
we don't need to know about rights? Oh, really?
We can't give legal advice …
but, the fact is that everybody gives everybody legal advice all the
time.
- Don't drink and drive;
- Wear your seat belt;
- As an employer or landlord, you should not discriminate based on gender, race, or national origin. Its against the law;
What is Legal Advice?
Court users are asking for
legal advice when they ask whether or not they should proceed in a
certain fashion. Telling a member of the public what to do rather
than how to do it may be giving legal advice. Legal advice is a
written or oral statement that:
Interprets some aspect
of the law, court rules, or court procedures;
Recommends a specific
course of conduct a person should take in an actual or potential
legal proceeding; or
Applies the law to the
individual person’s specific factual circumstances.
What is Legal
Information? Clerks and court personnel may:
Provide public
information contained in dockets, calendars, case files, indexes, and
other reports.
Recite common,
routinely-employed court rules, court procedures, administrative
practices, and local rules, and explain generally how the court and
judges function.
Refer self-represented
litigants to a law library or the court’s website for statutes,
court rules, or forms.
Explain the meaning of
terms and documents used in the court process.
Answer questions
concerning deadlines or due dates (without calculating due dates).
Identify and refer
self-represented litigants to court forms.
According to Find Law:
What Legal Advice Is
Advice from friends or
family does not constitute legal advice.
True legal advice forms an agreement between an attorney and his or
her client based on a particular legal matter the client is
experiencing.
In a nutshell, legal
advice has the following characteristics:
- Requires legal knowledge, skill, education and judgment
- Applies specific law to a particular set of circumstances
- Affects someone's legal rights or responsibilities
- Creates rights and responsibilities in the advice-giver
Unlike legal information -
such as information posted on a street sign - legal advice proposes a
specific course of action a client should take. For instance, it's
the difference between telling someone what to do (legal advice) as
opposed to how to do it (legal information).
Examples:
- Selecting, drafting, or completing legal documents or agreements that affect the legal rights of a person
- Representing a person before a court or other governing body
- Negotiating legal rights or responsibilities on behalf of a person
- Speculating an outcome
- Selecting or filling out specific forms on behalf of a client
Specific legal advice
questions may include:
- Should I file for bankruptcy?
- Does my disability qualify for federal assistance?
- What kind of recovery can I receive for my accident? injuries
What Legal Advice is Not
While legal advice is
specific, direct, and proposes a course of action, legal information,
on the other hand, is factual, generic, and does not address any one
particular cause of action. To help avoid the confusion that often
comes with legal information, websites and individuals will often go
to great lengths to clarify that any information contained in their
site should not be construed as legal advice nor form an
attorney-client relationship.
Examples that do not
constitute actual legal advice:
- Legal information obtained from free online legal websites, including a law firm or attorney's own website
- Advice from friends, family members, or former clients of a lawyer
- Information you hear on the radio
- Information you read on social media websites
- Information you see in news periodicals or on billboards
- Responses to legal questions posted in online Q&A boards, even if provided by a licensed attorney
- Printed materials listed in a "how to" guide
- Legal "self help" forms
Specific legal
information questions might include:
- Where can I find the Federal Medical Leave Act?
- What does the acronym EEOC mean?
- What are the gun laws in my state?
Confused
yet?
Yes. I think everyone is
confused, including the courts. As an experienced document preparer I
can point to many instances where a court clerk most certainly has
told a pro se litigant what form to file. It happens all the time.
So, as nonlawyers, the clerks of court, routinely select forms for
pro se litigants, even though selecting forms for pro se litigants is
a prohibited act.
And, do we ignore a
customer's request for advice? Yes, but, the technique is to turn
their request for advice into a request for information and then
point them to the information. Is this word play -- semantics? Yes.
Think about these scenarios:
A customer comes to you and
says that the landlord won't fix the leaking roof. And that customer
asks you what he should do. Beware the “should” word. Telling
someone what they should do might be giving legal advice. A better
practice, particularly if you frequently prepare documents for
landlord/ tenant issues, is to point him to a source of information,
like Top 10 Landlord Legal Responsibilities in Florida , let the customer explore his options.
Another
customer comes to you because she has been served a complaint for a
past due credit card debt. She says that she knows she owes the debt,
but it was years ago, and she thought the credit card company had
written it off. It is helpful to know the following:
Florida’s statute of
limitations varies for different types of debts. For written
contracts such as personal loans, the statute of limitations is five
years. So once this type of debt is more than five years past due,
the lender can no longer sue in order to collect owed money. For
other debts, the statute is shorter. Oral contracts and revolving
accounts such as credit cards have a statute of limitations of four
years.
And point your customer to
that information. However, that information isn't quite enough,
because the pro se litigant must bring up the statute of limitations
as an affirmative defense in their Answer. That information is in the
Florida Statutes and can also be found here -
https://blog.credit.com/2019/07/seven-ways-to-defend-a-debt-collection-lawsuit-62166/
In my experience, I've found
that pro se litigants can figure out the basic substantive law. It is
procedural law that stymies them. And, its my understanding that we
can explain procedure providing we don't cross over the boundary
between explaining procedure, into using procedure as strategy. We
can explain what comes next, procedurally, as in: after the
defendant/ respondent is properly served he has 20 days to file an
answer. But, to tell a pro se defendant / respondent that instead of
filing an answer, as long as he files something within 20 days, may
be using procedure as strategy.
The reason FALDP exists is
to help consumers and pro se litigants navigate the court system; and
provide a hub for Florida document preparers. We're proud of what we
do, mainly because we think we're helping make Florida a better place
to live.
