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September|October 2003
Mock Trial's Big Dance By Brian Montopoli
Pete Rose's Mock Trial By Joshua David Mann
Sue Yourself By Dashka Slater
To Be Continued By Sam Goodstein
No Boundaries By Tyler Maroney
The Prudent Jurist By Susan Koniak
Cases & Controversies

Sue Yourself

By Dashka Slater

THE LOGO FOR NOLO PRESS DEPICTS LAWYERS AS SHARKS WITH BRIEFCASES. The Berkeley outfit publishes books with titles like 29 Reasons Not to Go to Law School and sells "lawbotomy" T-shirts showing what happens to the brains of those who don't take its advice: The gray matter dedicated to compassion, morals, and spiritual development is replaced by neurons dedicated to ambition, financial appetite, and legal babble. But that doesn't mean the folks at Nolo hate lawyers. They just think that much of the law would be simpler, cheaper, and less obnoxious if the lawyers would get out of the way.

"I'm a real Prometheus freak," explains Stephen Elias, a longtime Nolo editor. "I love when stuff that's hoarded by rich and powerful people gets pulled out of them and distributed."

As the nation's leading purveyor of self-help law books and software, Nolo has spent 30 years demystifying the legal profession. The press provides do-it-yourself guides on subjects like bankruptcy and divorce, dog ownership and estate planning. Its website is a trove of legal essentials, including a plainspoken legal dictionary and one of the world's biggest collections of lawyer jokes. If you want to know what ultra vires means or what happens when you cross a pig with a lawyer, the answers to both questions are available, free of charge.

Nolo was founded in 1971 by two Bay Area Legal Aid attorneys: Ralph Warner, still the company's chairman, and Ed Sherman. Both were tired of turning away people who needed their help but weren't poor enough to qualify for it. Many of these would-be clients wanted a divorce. So Sherman wrote instructions on how to fill out the break-the-knot paperwork and called the resulting manuscript How to Do Your Own Divorce in California.

Publishers didn't bite. A few years earlier, a guy named Norman Dacey had published a book called How to Avoid Probate and had promptly been convicted for the unauthorized practice of law. Dacey eventually won on appeal, and his book became a bestseller (beating out Masters and Johnson's Human Sexual Response). Nevertheless, the publishers to whom Sherman sent his manuscript were wary of trespassing on the legal profession's jealously guarded territory.

Sherman and Warner reluctantly decided to publish the book themselves, using Warner's Berkeley home as their headquarters. Bookstores were at first hesitant to stock Nolo titles, and sales numbered only a few hundred copies in the first few months. But they shot up into the thousands after the Sacramento Bar Association came out against the book, warning Californians against the book's dangerous mission of promoting self-help. Nolo had been launched.

Books on how to avoid paying for lawyers have sold well for centuries. The popular 18th-century tome Every Man His Own Lawyer advertised itself as a "complete guide in all matters of law and business negotiations." But in the 1920s, lawyers began joining forces to fight this kind of low-cost competition. Their weapons were state statutes proclaiming that anyone who offered legal advice, explanation, or assistance without a license from a state bar was guilty of the "unauthorized practice of law."

UPL statutes were billed as a way to protect consumers from charlatans. But their practical effect has been to protect lawyers from lower-priced competition. The dispensation of legal advice has been defined so broadly that in recent years people have been investigated for typing up legal forms and for inspecting the siding on houses to see if they were eligible to join a class-action suit against a manufacturer. "Telling people whether they can cross the street is legal advice, in a sense," Elias says.

Nolo specializes in routine paperwork—the legal equivalent of the common cold. Its books mostly guide people through tasks that lawyers delegate to their secretaries and paralegals, like setting up a basic will. The $100 to $300 per hour attorneys usually charge for those services is quite a bit above the average nonlawyer's hourly wage, as the folks at Nolo are quick to point out. "Telling people, 'You need a lawyer' is like saying, 'You need a Cadillac,' " editor Mary Randolph says.

But, Nolo's books also flag areas that require professional legal assistance. There's no how-to manual for arguing before the Supreme Court, or even for defending yourself against a criminal charge. Instead, the press coaches readers about how to ask informed questions when they consult an attorney. In Nolo's perfect world, people will purchase only the legal services they need and will pay a fair price for them.

More than half of family law cases and 84 percent of child-support cases in California now involve at least one unrepresented litigant. The numbers aren't quite as high in other places, but they're rising. Most state bar associations are studying ways to make more of the nuts and bolts of the court system, like getting access to records, easy for the unschooled masses to use. There are even sensitivity courses aimed at convincing judges that pro se litigants aren't nut-jobs trying to clog up their dockets but ordinary citizens deserving a modicum of respect.

At the same time, self-help law is still viewed with suspicion. Six years ago, Nolo was investigated by the Texas Supreme Court's UPL subcommittee, which charged that the press's Living Trust Maker software was (all by itself) practicing law without a license. Incensed, Nolo hired a real Texas lawyer and sued the UPL subcommittee for violating the company's right to free speech. The press also called a few reporters. The image of Texas lawyers walking their big boots all over the First Amendment made for great publicity. Time magazine opined that "Nolo's real crime may be putting the law into the hands of laypeople for $15 to $45 a pop."

Stung by the derision, the Texas legislature met in emergency session to pass a law exempting self-help books and software from the state's UPL statute, as long as there was a disclaimer on the cover saying that the product was not, in fact, a lawyer. Nolo sales in Texas skyrocketed. Like the earlier tiff with the Sacramento Bar Association, the episode turned into a boon for the company.

Nolo now has 85 employees and occupies a spacious former clock factory in the hip industrial neighborhood of West Berkeley. The press remains scrappy and defiant, but its skepticism about lawyers has been embraced by the mainstream. In December of last year, the American Bar Association made trouble for itself by proposing a broad national definition of the unauthorized practice of law that would have prohibited nonlawyers from helping with tax forms, real estate transactions, or landlord-tenant disputes. The idea was greeted with such hostility—critics included the Department of Justice and the Federal Trade Commission—that it was quickly withdrawn. Instead, an ABA task force suggested that states should spell out which legal work doesn't require a lawyer, a first step toward making room for anyone who can help consumers wade through arcane paperwork at a reasonable fee.

The ABA's turnabout leaves Nolo with no organized opposition to its self-help mission. Its editors aren't worried that the company has outlived its usefulness, though. As long as legal jargon is incomprehensible and legal procedures are illogical, as long as court clerks treat lay people with contempt and attorneys charge by the hour, Nolo will have a niche to fill.

Dashka Slater, a writer in Oakland, Calif., last wrote for Legal Affairs about Alcatraz's debt to Hollywood.

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