Happy Thanksgiving!

Thanksgiving is the original American holiday. I humbly count my blessings.

27 Barriers to Legal Access & 11 Possible Solutions

"The law should be a shield for the weak and powerless, not a club for the powerful."

- Gov. Roy Barnes, 2004 Equal Justice Conference

Article I, section 21 of the Constitution of the State of Florida requires that

“the courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.” 

Inherent in this mandate is the precept that our courts are neutral bodies that will interpret the law fairly, and will ensure equal treatment of all parties. 

27 Barriers to Legal Access

1. Many pro se litigants cannot afford to hire an attorney. One of the most common barriers is the economic situation of pro se litigants. Lawyers' fees are un-affordable for people with modest income. Also there is a limited access to free or low cost legal services.
2. Many consumers have no idea where to even begin.
3. Many would be pro se litigants don’t realize they have a right to access the court system themselves.
4. The law is packed with forms, statutes and jargon that the average person may not understand.
5. Legal aid societies cannot keep up with increasing pace of low income litigants. There is a limited supply of low cost or pro bono attorneys. Low cost legal assistance can be hard to find and non-profit centers with strict guidelines and so many people needing assistance, may not be able to help.
6. Judges don’t tend to like pro se litigants.
7. Judges assistants are sometimes rude.
8. Court clerks are often rude. Judges and courtroom personnel are often condescending towards pro se litigants.
9. Opposing counsel secretaries can be obnoxious.
10. Everybody hides the ball and passes the buck.
11. Everybody tells pro se litigants to get an attorney.
12. Pro se litigants lack credibility. People, like opposing counsel, clerks, or judges may think a pro se litigant doesn't know any of the rules; and so the pro se litigant may not be taken seriously.
13. The average reading level for Floridians is between the eighth and ninth grade level. The pro se forms and their instructions may be too difficult to read and understand; as they are written above the reading level of many Florida citizens. 
14. Unfamiliar legal jargon. Unnecessary terms are used. Legal “jargon” serves as a means to exclude from the courts any person who doesn't pay an attorney, or speak the jargon. 
15. Many people have incomes that are too high to qualify for free legal assistance. 
16. Unclear court procedures, confusing court forms, incomplete or misleading judicial websites. 
17. Underhanded attorneys will not file or notify pro se litigants with the correct paperwork in the correct manner, but if a pro se litigant does not follow procedure precisely, attorneys are the first to cry foul to the Judge. 
18. Language barriers - foreign born litigants, there is often no court interpreter available. 
19. Procedural requirements are often harder for pro se litigants, and purposely made this way. In fact, legal papers filed by an attorney that need to be “corrected” are often times overlooked by the judiciary system simply because they were filed by counsel. 
20. Clerks and opposing counsel withhold information from pro se litigants that is normally given to attorneys. If an attorney's office calls to ask about a hearing,for example, the clerk will provide all the answers. But if a person representing their own interests asked for the same information, the answer becomes legal advice. 
21. Pro se litigants are considered distinctly unwelcome. It is literally an institutional bias.
22. Unfamiliarity with legal procedures can be frustrating and embarrassing for someone seeking justice. It can cause a person to abandon their cause or wind up with a less than desired outcome.
23. Finding the correct forms to file. Choosing the right forms and filling them out correctly is not only time consuming, but can be an overwhelming task. 
24. Finding the proper jurisdiction and venue in which to bring their action. How to choose between small claims, county court, or circuit civil? Do I file my family law case where I live or where my ex lives? 
25. Navigating the legal system - civil process and procedure. Pre-law students, paralegals, and attorneys all take at least one course about civil process and procedure - CivPro. Many find the information overly detailed and difficult to retain. Imagine the pro se litigants' dilemma having to decipher an entire body of information for the first time, on a deadline, when their home, their money or their children may be at stake.
26. In many cases, clerks have been explicitly trained to never answer any questions from the pro se public. Such assistance has been perceived as violating the court’s neutrality or as unauthorized practice of law. Pro se litigants, therefore, frequently find their paperwork being refused as inappropriate or incomplete, but are given no help to correct it; no explanation of the problem or how to fix it; and no referral to someone who could help. This is called "hiding the ball".
27. Education is a big issue for many people who want to pursue their rights. Most of the do-it yourself forms require that the person has access to a computer with internet, to find forms; to fill them out; to print them out; and to do even rudimentary legal research.

Eleven Possible Solutions 

1. Explain court procedures clearly and patiently (several times if needed—it’s a lot to comprehend)
2. Help customers define for themselves what they are seeking and be good listeners. Sometimes people really need an ear because they get so beaten up by the system!
3. Clarify with them what their goals are. What are they trying to accomplish? Help them understand legal terminology or show them where they can look it up.
4. Help them fill out court forms.
5. Explain what types of pleadings exist and what the procedures are for their situation.
6. Help them get fee waivers (if they qualify) from the court.
7. Do some “hand holding” (give them a check-in call before court and a follow up call after)
8. Know when to refer them to an attorney (the case is too legally complex, there is a lot at stake and or the Judge is not taking them seriously.
9. The goal of any legal document preparer should be to provide professional document preparation services at a cost that is affordable. Not only should these services be given with the utmost professionalism, but also allow the customer to vent their frustrations and tell their story, This level of professionalism and interpersonal skill makes the personalized services of a legal document preparer far stronger than most realize; by not only providing the proper formatted forms they need, but often, even only temporarily, someone to listen.
10. As a legal document preparer our mission is to help others to complete their own legal tasks.
11. Empowering pro se litigants so they can become knowledgeable about their legal rights and be able to stand in front of a judge and state their case with confidence and conviction.

The Times They Are A-Changin'

The line it is drawnThe curse it is cast
The slow one now
Will later be fast
As the present now
Will later be past
The order isRapidly fadin'
And the first one now
Will later be last
For the times they are a-changin'.

Bob Dylan

Bob Dylan's words have never held more truth. In our modern world, we see technologies come and go, businesses rise and fall, and the status quo steadily crumbles. When we founded the Florida Association ofLegal Document Preparers in 2010, pro se representation was rare. Consumers at that time were not as well informed about their rights and the law as they are today.

Legal document preparers are systematically chipping away at the status quo, and for all the right reasons. We are disrupting the way consumers access the court system by showing our customers they really can do it themselves. Since many consumers have no choice but to represent themselves - legal fees being prohibitive, and free legal services as elusive as ice in the Florida sun - legal document preparers are an alternative.

We are not a substitute for an attorney. In fact, we are prohibited from ever stating that our services are a substitute for an attorney under threat of imposition of draconian punishments which include fines and possible imprisonment. So, no, our services, are not a substitute for an attorney.

We do not offer legal advice. We are prohibited from doing so, even if we wanted to, under threat of those same harsh penalties. Our customers know what they want to accomplish, they know their own situations, and nowadays they usually know their rights. What they don't know is where to find forms, how to complete those forms, how to file them, what to file when, and which forms they need.

We are also prohibited from choosing forms for our customers. Same penalties apply. However, we can provide legal information. Legal information found in form instructions, statutes, case law, and other authoritative sources dictates what to file when. Legal document preparers help make the wildly asymmetrical legal system somewhat more balanced and accessible.

A few stats gleaned from the Palm Beach County Bar Bulletin, September 2015:

• An estimated 60% of our state citizenry cannot afford a lawyer to address their legal need, and do not qualify for Legal Aid.
• 85% of family law cases involve at least one pro se party because divorcing parties are often “priced out” of the legal market.
• Less than 15% of small businesses use a lawyer

Florida legal document preparers are here to stay. Rumor has it that the Florida Bar plans to require document preparers to complete an Associates degree to learn how to prepare legal documents and only then be allowed to offer their services. I'm not quite sure how the Florida Bar intends to implement that. What I do know, is that if this becomes the requirement it represents yet another hurdle for pro se litigants to access the legal system.

The Florida Association of Legal Document Preparers (FALDP) requires applicants to meet or exceed minimum standards for membership. And FALDP now offers voluntary certification for member document preparers to further elevate our profession. We're here for the duration -- proudly serving the under served.

Financial exploitation of the elderly.

The National Elder Abuse Incidence Study (National Center on Elder Abuse, 1998) found that more than 500,000 persons aged 60+ were victims of domestic abuse and that an estimated 84% of incidents are not reported to authorities, denying victims the protection and support they need.  Given the significant under reporting, the Senate Special Committee on Aging estimated that as many as five million older Americans may be victims of abuse, neglect, and/or exploitation every year.  These vulnerable elders are subject to injury and to premature death (Lachs et al., 1998), often from caregivers and family members.  Elder financial exploitation—commonly linked with other forms of abuse and neglect—threatens the health, dignity, and economic security of millions of older Americans.  Elder abuse is estimated to cost Americans tens of billions of dollars annually in health care, social services, investigative and legal costs, and lost income and assets. 

Financial Abuse:

Indicators are signs or clues that abuse has occurred. Some of the indicators listed below can be explained by other causes or factors and no single indicator can be taken as conclusive proof. Rather, one should look for patterns or clusters of indicators that suggest a problem.

• Bills or creditors going unpaid for extended periods, utilities being shut off or eviction notices being sent and which the elderly adult is not generally known for not paying their bills and has the ability to pay
• New friends or acquaintances which the elderly persons becomes suddenly attached to and speaks often about
• Sudden changes to long-standing estate planning documents, including Wills, Powers of Attorney, Revocable Trusts
• Executing financial documents or powers of attorney which the elderly person cannot understand or explain
• Unusual activity on the elderly persons bank accounts including abnormally large or frequent cash withdrawals, frequent transfers to new or unknown accounts, changes to beneficiary designations and the addition of co-owners to their accounts
• Inconsistent or unusual signatures on checks
• Speaking negatively about children, or spouses which is uncommon, especially after another son or daughter, friend or distant relative has spent an extended amount of time with them
• Care and services which are not at the level expected for someone with their wealth
• Taking out new mortgages on their home or opening new credit card accounts when they have other readily available cash or liquid assets more than adequately covering their needs
• Children or caretakers being intimately involved in the elder persons financial decisions who the elderly person would not normally rely upon for financial advice or assistance
• Financial statements no longer being delivered to the elderly persons home or residence
• Personal belongings, jewelry and other valuable items missing
• Elderly persons who don’t normally complain about money suddenly complaining about not having enough money to do the things they want to do
• Caretakers or children taking control of conversations with the elderly person or the elderly person being in fear of speaking in front of that person without looking to them for assurance or permission first
• A new, much younger love interest or best friend comes into their life
• Large purchases which the elderly person wouldn’t normally purchase or has no need for such as an elderly male widower purchasing expensive women’s jewelry and clothing
• Implausible explanations given about the elderly person's finances by the elder or the caregiver
• Absence of documentation about financial arrangements

For more information visit: Prevent Elder Abuse 

FALDP Conference Specials

FALDP's Sixth Annual Conference is on September 19, 2015 at the Fountain Beach Resort in Daytona Beach. Every year we try our best to top the year before. This year we'll have four dynamic and inspiring speakers and a list of conference specials. Here goes:

1. FALDP Membership + Conference = [only] $130.

2. Turn Key Business Bundle - includes conference fee and membership - ONLY $499.

3. ANY three course or more bundle includes the conference fee - save $75

So what are you waiting for? The run up to the annual conference is one of the best times to join our association. Besides all of the benefits of membership - free webinars, referrals, networking, and advertising - document preparers who join now will be on the ground floor for FALDP Certification.

Visit our site to read more about the upcoming conference, membership, and the conference specials. And please do not hesitate to call if you have a question about membership, document preparation, or if you need legal information. We're here to help.

Copyright, fair use, and infringement basics.

Over the last few years, bloggers, business owners, web designers, content marketers and social media users have been forced to educate themselves about copyright, infringement, and fair use. As the internet becomes more and more a part of life many people are not mindful of the laws surrounding copyrights and the potential penalties for infringement.

What are Copyright laws?

The fundamental rule of copyright is simple. Anybody who creates a piece of original creative work has ownership rights. Intellectual property protected by copyright laws include writing, photographs, video, paintings, graphic art, choreography, sculptures, infographs and anything else that has been created as an original.

The copyright owner has exclusive rights to their intellectual property, but if they choose can also give permissions that allow third parties to use their work. 

Formal copyright registration is not necessarily required. Copyright protection exists from the moment a work is created in a fixed, tangible form of expression. The copyright immediately becomes the property of the author who created the work. Only the author, or those deriving their rights through the author, can rightfully claim copyright.

The way in which copyright protection is secured is frequently misunderstood. Copyright is secured automatically when the work is created and fixed in a tangible form, such as the first time it is written or recorded. No other action is required to secure copyright protection – neither publication, registration nor other action in the Copyright Office (although registration is recommended).

The use of a copyright notice is no longer required under U.S. law, although it is recommended

Copyright law does not make any specific provision that creative work must explicitly be flagged as copyright, but does make provision for “fair use," and this is where confusion can arise. 

What is “fair use”?

Fair use of creative work is a complex body of law. It does not always make a good defense either so if you are unsure whether or not you can fairly use somebody else’s work, play it safe and do not use it. 

Where the law is clear about fair use are situations in which the intellectual property is being used to support another body of work. They are as follows: 

• A small percentage of owned intellectual property – this allows writers, reviewers and commentators etc., to quote other peoples work for the purpose of supporting their own ideas.

• A single screen shot – allows you to capture a scene from film, TV or video game to support a critique or commentary

• Teaching and lecturing – if you are giving an online lecture, you can use intellectual property to summarily your point

• Quoting song titles as part of a review – you have to be careful when quoting song titles, but it can be used in reviews or to emphasis a point in an article which the lyric bears relevance

What constitutes a breach of copyright laws? 

There is practically no legitimate defense against violation of copyright. The courts will rule that you have breached copyright ownership if you use creative content without permission.

A breach of copyright will usually result in a fine, and the following is not a defense for copyright infringement:

• You did not know the material was copyrighted
• You have removed the image and are no longer using it
• You modified the original image (you need permission for this)
• You acknowledged the original creator
• You are not making money from the copyrighted work
• You used a disclaimer on your website

Besides federal trademark and service mark registration, a service mark or logo can be registered within a state. Florida Trademarks and Service Marks may be registered with the Florida Department of State pursuant to Chapter 495, Florida Statutes. Rights to a name or mark are perfected by actual use in the ordinary pursuit of the specific endeavor; rights are not perfected by registration only, and the general rule of "FIRST IN USE, FIRST IN RIGHT" is applicable.

Florida Statute 495.131  Infringement.--

(1)  Use, without the consent of the registrant, any reproduction, counterfeit, copy, or colorable imitation of a mark registered under this chapter on any goods or in connection with the sale, offering for sale, distribution or advertising of any goods or services on or in connection with which such use is likely to cause confusion or mistake or to deceive as to the source or origin of such goods or services; or

(2)  Reproduce, counterfeit, copy or colorably imitate any such mark and apply such reproduction, counterfeit, copy or colorable imitation to labels, signs, prints, packages, wrappers, receptacles or advertisements intended to be used upon or in conjunction with the sale, offering for sale, distribution or advertising in this state of goods or services;

Shall be liable in a civil action by the owner of such registered mark for any or all of the remedies provided in s. 495.141, except that under subsection (2) hereof the registrant shall not be entitled to recover profits or damages unless the acts have been committed with knowledge that such mark is intended to be used to cause confusion or mistake or to deceive.

495.141  Remedies.--

(1)  Any owner of a mark registered under this chapter may proceed by suit to enjoin the manufacture, use, display or sale of any counterfeits or imitations thereof and any court of competent jurisdiction may grant injunctions to restrain such manufacture, use, display or sale as may be by the said court deemed just and reasonable, and may require the defendants to pay to such owner all profits derived from and/or all damages suffered by reason of such wrongful manufacture, use, display or sale and to pay the costs of the action; and such court may also order that any such counterfeits or imitations in the possession or under the control of any defendant in such case be delivered to an officer of the court, or to the complainant, to be destroyed. In assessing profits the plaintiff shall be required to prove defendant's sales only; defendant must prove all elements of cost or deduction claimed. In assessing damages the court may enter judgment, according to the circumstances of the case, for any sum above the amount found as actual damages, not exceeding 3 times such amount. If the court shall find that the amount of the recovery based on profits is either inadequate or excessive the court may in its discretion enter judgment for such sum as the court shall find to be just, according to the circumstances of the case. Such sum in either of the above circumstances shall constitute compensation and not a penalty.

And so there you have it. A copyright is automatic. The moment I write these words, even if I don't register them as copyrighted, even if I don't publish them -- are copyrighted. According to Florida law as shown above anyone who knowingly and wrongfully uses a service mark (which is a logo or graphic) registered with the state may be required to forfeit their profits as damages.

The Pro Se Advantage

Wise people are thankful for small favors. In a struggle, even the smallest opening, the smallest advantage can sometimes be widened enough to allow a victory to squeeze through. It isn't easy to represent yourself in court. It's hard. It's scary and complicated. Please read my past post - The Pro Se Courtroom Experience, posted in May, 2014.

But ... pro se litigants you have one important advantage. Despite the fact that you are not an attorney, not learned in law, are confused by procedure, intimidated by the judge and opposing counsel - despite all that you have the advantage. But it is up to you to grasp it. Grasp your advantage with two hands and don't let go.

This is your life. What ever the reason you are in court and appearing pro se - its your life. And it must be important, or you wouldn't be there. Whether you're the petitioner or the respondent; or the plaintiff or defendant -- this is so important that you must do something. Many pro se litigants have exhausted all possible resources before proceeding without an attorney. Already borrowed all possible funds from Mom and Dad or Uncle Bob; maxed the plastic; and seriously robbed poor Paul to pay that steep retainer. That retainer that you gave to the attorney when he listened to your story, was so nice and accommodating, and said pay me your money, sign here, and I'll see what I can do. Then all too often, just as court day is looming you're hit with another payment - oops the retainer ran out. Now, the attorney needs another grand to appear in court.

You don't have it -- so he withdraws.

But, this is your life. No attorney will ever know the intricacies of your case and your life like you do. To the attorney, you're another day at work, another case, another paycheck. To you - its your kids, your house, your money, and sometimes even your freedom. Take the advantage as you find it. Take the advantage that you know more about your case than your own attorney ever did. And take the advantage that you know more about your case and your story than the opposing counsel ever will.

Take the time to learn the court rules, do your best to work through the documents, look up terminology that you don't understand -- and use your advantage to its fullest.

In a perfect world, your attorney would handle your legal matter for you and you could sleep at night knowing that your legal matter is in good hands. We don't live in a perfect world, use any advantage that comes your way. And if the only advantage is - you have no choice. Exploit your own need to win, and channel it into doing the best you can in understanding procedure and arguing your case.