Help! I am a business owner, and what do I do about false, negative reviews online about my business?

One thing that is a developing area is defamation in the context of online reviews for businesses. Online reviews are becoming increasingly important to businesses. In South Carolina, the Dickson Davis Law Firm assists businesses trying to monitor and maintain this up and coming issue for businesses. The Dickson Davis Law Firm wanted to share some basic, general knowledge about this ongoing issue that is troublesome for businesses in a developing area of the law. 

First and foremost, businesses can control the settings on social media to limit people's comments or reviews without your express authorization. No business should be paying an attorney to do cease and desist, demand letters, or litigation when the solution is to become properly trained on these settings in social media for your business. As an ethical matter, businesses should not be wasting money on legal representation in these types of cases for circumstances within your control on social media. Also, without controlling your settings, one could argue that you consented to the public to make such comments defeating any claims you might have. Managing your social media platforms is critical in this respect. 

One work-around would be, depending on the type of business you have, to require your customers to sign a non-disclosure agreement that customers may not post online reviews of your business without your consent and authorization. Disclaimers along these lines can be incorporated into your online presence with your website, social media, and other listings for your business. 

Alternatively, every business with a website knows that SEO optimization is key to promoting your business online, which relies upon the proprietary rating system led by Unfortunately, Google will not remove false statements or reviews online without a court order. Meaning, if you want to be active in protecting your business, then you have to monitor these ratings and respond appropriately. Remember, as angry as you may be about a patently false review, you must not retaliate and make defamatory comments yourself. Always remain professional in your responses. 

Keep in mind, certain professions also have rules about not disclosing whether the reviewer is a patient, client, customer, and so forth. For specific businesses, the most appropriate response is to acknowledge the response (i.e., I am sorry that you feel that you are not having a positive experience with my business), provide a customer service number, email, online form for complaints to help diffuse these negative reviews before these negative reviews take place. For certain businesses, do not acknowledge whether or not the person is or is not a patient, client, or customer if keeping the identity of the customer confidential is part of your business maintaining compliance with regulations. Any kind of customer simply wants an outlet to express their frustration and dissatisfaction with your business. Direct that person to a live person. Remember, the angry customer who tells you that he or she is angry is, often, a good customer that is trying to tell you something but feels like you are not listening or do not care. 

Nevertheless, some people just make a stink that has no meritorious basis about your business. By contrast, some negative reviews may be a byproduct of a competitor trying to sabotage your business by bringing down your ratings online. That issue is a whole other matter and actionable. Competitor sabotaging is a no-no. Just don't do it. If you have to sabotage another business by posting negative reviews online about that business, then obviously your priorities are not in line with focusing on your business and generating revenue stream for your business. Successful businesses worry about pushing their own boundaries for successes and failures, not by constantly comparing their business to others. Having knowledge of competitors and their business models is important to remain competitive, but competitive sabotaging by making defamatory online reviews is not maintaining a healthy knowledge of the market and the competition. 

In South Carolina, defamation is an intentional tort action when the speaker or writer intended to publish a defamatory, false statement statement to a third-party about your business to discredit your business's reputation and causes damages consequently. Defamation comes in two forms: slander and libel. Slander is spoken defamation. Libel is written defamation.  Defamation is often hard to prove because of the damage component.

Defamation per se is when the statement is on its face is apparent by the language to injure your business's reputation and harm your business. If the meaning of the statement is innocent on its face, then the defamation is not defamation per se. Libel per se pertains to written or printed words of a degrading nature about your business to tarnish the character or reputation of your business with friends, acquaintances, the public, or, in the alternative, disgraces your business to be odious, comtemptible, or ridiculous. Slander per se pertains to accusing your business of committing a crime of moral turpitude, contracting a loathsome disease, committing adultery, being unchaste, or unfit in your trade, business, or profession. In defamation per se situations, damages are presumed because the very statements are injurious to the business's reputation. By contrast, in a defamation claim, one also has to show proof of malice and special damages. 

When you have a claim, you present a cause of action which provides for a remedy at law or in equity (the difference can be the type of recovery such as monetary for at law or to prohibit someone's actions at equity for example). In a cause of action, you have to prove the factual allegations that track the elements of that cause of action. Defamation is called an intentional tort, meaning, someone cannot accidentally defame your business. So, for defamation, the elements for this cause of action are: (1) a false statement was made and defamatory in nature to injure your business or with reckless disregard for the truth or falsity of the statement; (2) the false statement was made with actual or implied malice (in defamation per se cases, malice is presumed); (3) the false statement was published to a third-party as an unprivileged statement; (4) the false statement concerns your business; and, (5) damages are legally presumed in defamation per se cases or plaintiff must show special damages in defamation cases. The publisher may mitigate damages by retracting the statement. 

Defamatory statements are intended to discredit your business's honesty, reputation, integrity that invites public hatred, contempt, scorn, or result in your business being shunned or boycotted generally speaking. Not only must the statement be false, but, an omission of material facts may also warrant a false statement. The affirmative defense to defamation is for the publisher to claim that the statement made is true or that your business consented to the publisher making statements about your business.

Other nuances exist such as employees making statements to one another in the same company usually fall under qualified privileged communications when made in good faith and in the ordinary course of business, which does not amount to defamation. Damages are legally presumed if the business suffers embarrassment, humiliation, or injury to the business's reputation. In the alternative, a business must prove identifiable pecuniary, economic, or material loss in the form of special damages. More importantly, the statute of limitations for defamation cases is two years, which is important to preserve your claims and take action. 

Because defamation may also deal with the constitutional right to free speech, defamation cases also must pass the constitutional standard as well, which will not be discussed in detail here. But, a special mention is important to note that, if the publisher's right to free speech is implicated under the First Amendment of the U.S. Constitution, then damages may not be presumed. Other nuances exists and legal analysis is required to determine each case's specific claims to determine whether a viable claim for defamation exists based on specific facts and circumstances. A full consultation with an attorney is proper to determine what is applicable in your situation. 

Typically, negative reviews are either few stars without comments or few stars and scathing comments. When working behind the screen of a computer, the writer of these reviews feels safe and innocuous behind a screen as out of sight and out of mind protected by the lack of social interaction when dealing with online public forums—to get away with saying whatever you want to say. However, words do hurt and no one is entitled to say whatever they want and whenever they want. Words are actions. A trend against cyber bullying on social media is another example of words, as actions, being actionable that may result in the exposure of liability to the online bully pushing an old concept of law into new terrain with online public forums with potential of new applications and creative, legal arguments. 

These writers of negative reviews, who do not convey the truth in their review, fail to appreciate the fact that, in today's day and time, and the advancement of technology, the writer is exposing himself or herself to liability for defamation when posting negative reviews online and making false statements against the business generally speaking. For businesses, typically business owners are dealing with disgruntled customers, prospective customers, or competitive sabotaging. Many times, these statements are patently scathing that, if false, would most likely fall under the category of libel per se. While will not remove the negative review, even if false, the publisher who made the negative review can voluntarily remove the statement online as an alternative to litigation. 

Therefore, cease and desist notices, demand letters, and the like have been effective for the publisher to remove negative, false reviews online. If such action fails to produce the desired result, then proceed with filing a law suit. The question is, what is the case worth to you in damages? Circuit Court is a slow process and draws out the resolution. Magistrate court tends to be quicker. But, magistrate courts have a cap on hearing cases where the damages are $7,500.00 or less in South Carolina. But, if you're simply looking to obtain a court order for the publisher to remove the defamatory comment, magistrate court may be more appropriate and cost less overall. But, the particular facts of your situation may not warrant that route. As always in the law, it depends. The facts and circumstances of your case can change the legal analysis as to whether you have a case, a strong case, and proceed at a cost-effective route to address these issues. 

Academically speaking, this is a fascinating legal issue of applying old concepts to new factual circumstances with advancements in online public forums. But, as fascinating as it may be, this issue can be a real nightmare for some businesses in reality. 

Holiday Specials for Estate Planning

Get Ready for Estate Planning as Your New Year’s Resolution

During the holidays, most people are surrounded by family and, depending on your circumstances, some of you may be faced with circumstances that trigger the need for estate planning such as wills, trusts, power of attorney, South Carolina Health Care Power of Attorney (i.e., Heath Care Medical Advance Directive).

Most people have downtime during the holidays when family time ramps up but business tends to slow down. Over the holidays is a great time to pull things together and assess your overall finances, investments, and assets right before tax season.

The Dickson Davis Law Firm is offering a special for ninety (90) days during the holidays and pre-tax season from 11/19/2018 through 2/19/2018. While consultations for the Dickson Davis Law Firm for estate planning is $150.00 per hour, filling out your estate planning worksheet before your consultation will result in a quick and meaningful consultation beforehand.

Simple wills that are often advertised are really simple, simple wills of two-three pages long. Not that these wills aren’t effective, but you run the risk of assets not captured in these wills leading those handling your estate to have to probate the will and deal with the probate process on assets not captured in the will (i.e., partial intestacy), a dual process for estates that are also a partial intestate estate subject to the South Carolina Probate Code to distribute those assets to your heirs by statute. There are a series of more comprehensive legal provisions that you want to ensure are included in even a simple will. Also, a thorough and comprehensive review of your assets, even for a simple will, is important for you to understand what non-probate assets will not pass through probate whether by will or the probate process for intestate estates or partial intestate estates.

The Dickson Davis Law Firm provides a comprehensive review of your assets and designs your will to avoid partial intestacy as much as possible. The Dickson Davis Law firm also provides various legal provisions in your will that you will not necessarily find through simple forms or what you can download online such as no-contest clauses, specific gifts, tailored residuary clauses, and so forth.

The Dickson Davis Law Firm is offering the following special for wills, power of attorneys, and South Carolina Health Care Power of Attorney:

(1) Simple Wills for $400.00 per person;

(2) Complimentary Power of Attorney normally priced at $150.00 per person;

(3) Complimentary South Carolina Health Care Power of Attorney normally priced at $100.00 per person.

Please call the Dickson Davis Law Firm today and schedule your consultation. Please make sure to fill out the Estate Planning Worksheet (click to download) in advance prior to your consultation.

Updating your Power of Attorney and Medical Power of Attorney


BY: Deborah D. Davis

Date: 10/16/2018

The South Carolina Probate Code (click to view) underwent major changes in 2017. However, for attorneys familiar with the Uniform Probate Code, these changes are not new concepts.

Often, I find that clients or prospective clients don’t truly understand the difference between a Power of Attorney and the South Carolina Health Care Medical Power of Attorney. A Power of Attorney is when one, who is the principal, gives authority to another, who is the agent, to stand in the shoes of the principal legally speaking.

A power of attorney encompasses two bifurcations of legal concepts. First, a power of attorney is either durable or springing. A durable power of attorney is effective at the time of executing the power of attorney. A springing power of attorney is only effective upon the triggering of a specified condition such as the principal becomes incapacitated, or, the power of attorney only becomes effective on a certain date.

Secondly, a power of attorney can be general or limited. A general power of attorney basically allows broad powers for the agent to legally step into the shoes of the principal legally speaking. Unfortunately, with durable power of attorneys, misuse abounds and the agent often does not understand the fiduciary duty the agent is bound to uphold. The agent must sign an acceptance of the power of attorney to be the agent for the principal. Part of what I do is to fully explain what the agent’s fiduciary duties are. One of the most common mistakes made are commingling funds between the principal and the agent. The agent should only be an authorized signer on the account but not placed on the account as a joint owner. Moreover, once fully explained, most clients do not want a durable power of attorney once I explain such broad powers being granted to the agent. In my practice, I rarely draft durable power of attorneys for my clients as a result.

Under the revised South Carolina Probate Code, the power of attorney can simply refer to the code for authorized powers. However, I would recommend including the statute as an exhibit to the Power of Attorney drafted for the client because the code is subject to change. Rather, the more appropriate thing in my opinion is to expressly state the agent’s powers within the power of attorney instead.

By contrast, a limited power of attorney delineates certain powers to the agent. A limited power of attorney can grant broad powers almost to the extent of a durable power of attorney or be specifically narrowed to a single role such as representing the principal with respect to litigation in which the principal is involved as an example. Here, the client has the choice as to what roles the agent may step into the shoes of the principal legally speaking that tends to thwart misuse. Also, because of misuse from power of attorney with the agent, I typically curtail the agent’s authority to not grant gifts, change beneficiaries, and so forth as protective measures unless the client expressly authorizes the agent to do so.

Also, generally speaking, a power of attorney typically needs to be recorded in the county in which the principal owns real estate in South Carolina or the county in which the principal resides. I typically charge $150.00 for a power of attorney plus recording fees. If the principal only owns one real property or does not own real property, then I typically charge $25.00 in recording fees. However, for each additional property, I charge an additional $25.00. The bulk of the time is really spent on discussing the types of power of attorney and which powers the principal wants to grant to the agent.

The South Carolina Health Care Medical Power of Attorney is available online (click to download). However, the South Carolina Health Care Medical Power of Attorney is usually for when the principal is incapacitated indefinitely or terminally ill such as on one’s death bed. This point is a sticking point as most clients are unaware that this type of power of attorney is not for the interim periods when one is not terminal, incapacitated indefinitely, or both. Basically, there is a gap in a time frame of certain conditions whether the agent may assist with making medical decisions for the principal.

Most doctors and hospitals are accustomed to seeing the general form available online for free. But, what is important to note is that, the typical options to select need to be discussed with the client. Medical doctors have discussed how depriving nutrition and hydration to one in a comatose state is a fate far worse than death. Because of this reason, and the humane consequences, I never advise any option refusing hydration or nutrition. The refusal of pain medication is a personal preference due to how some feel about the use of such. However, if a person is suffering, terminally ill, or comatose without the ability to communicate, the humane option would be to limit that person’s suffering. But, that choice is a personal choice.

I have modified the South Carolina Health Care Medical Power of Attorney to encompass the more humane aspects that you will not find through the online forms or online legal services for such documents. Because the language is mostly statutory, I only charge $100.00, and mostly to explain the form to clients. Also, the form should be signed by two disinterested witnesses that cannot be family members or the agent appointed that must also be present when executing the South Carolina Health Care Medical Power of Attorney form.

By contrast, a living will dictates the principal’s desires with respect to the principal’s medical treatment when the principal is no longer able to communicate informed consent to such medical treatment. Again, with a living will, the document serves as a triggering condition that the principal be incapacitated. Again, there is a gap in a time frame of certain conditions whether the agent may assist with making medical decisions for the principal.

A power of attorney can also include the agent making medical decisions regarding the medical treatment of the principal regardless of the principal being incapacitated. Such powers granted are useful when the principal just wants a family member to deal with the doctors and nurses instead when the principal is unwell. Moreover, this grant of power in a limited power of attorney or durable power of attorney fills the gap in the time frame or meeting certain triggering conditions from the living will or South Carolina Health Care Medical Power of Attorney potentially.

The issue agents typically run into is whether the agent can direct medical treatment for the principal in that gap time frame when the triggering conditions or circumstances have not arisen. Another common issue is when the principal relocates to South Carolina and the principal’s power of attorney and Health Care Medical Power of Attorney is from another state. In that circumstance, it is critical to update the Power of Attorney and Health Care Medical Power of Attorney before the principal becomes incapacitated.

If the principal is already incapacitated, a guardianship or conservatorship may be more appropriate, which requires filing for the same before the South Carolina Probate Court. Additionally, the agent for the incapacitated principal may need to record the principal’s power of attorney in South Carolina as well.

The Dickson Davis Law Firm also provides estate planning services from simple wills to trusts. The Dickson Davis Law Firm charges $150.00 per hour for consultation regarding estate planning. For further information or details as to how these documents can best protect your interests, contact the Dickson Davis Law Firm today or book an appointment online.

Common Landlord-Tenant Questions in Upstate South Carolina

By: Deborah D. Davis


Of the many calls that I receive regarding landlord-tenant disputes, key recurring questions and themes appear. I wanted to address these common questions for you to review before determining whether the Dickson Davis Law Firm may assist you with your landlord-tenant issue. 

I invite you to also refer to the following page for additional information and the law surrounding the landlord-tenant relationship:

Some key issues you need to consider before calling the Dickson Davis Law Firm about your landlord-tenant dispute, and most of these issues relate to residential landlord-tenant issues (but some apply to both residential and commercial landlord-tenant disputes):

  1. With all landlord-tenant disputes, the Dickson Davis Law Firm will ask you to fill out the online Landlord-Tenant Dispute Form (click to fill out online form) for additional information; 
  2. The first thing the Dickson Davis Law Firm will ask you is whether you have a copy of the lease, and to send the same to the attorney for review as part of your consultation; 
  3. The second thing the Dickson Davis Law Firm will ask of you whether a pending eviction is in process, of which you will need to go to the South Carolina Case Search (click to learn more), select your county, and enter your name to see if litigation is pending against you regarding the landlord-tenant dispute; 
  4. The tenant will be responsible to pay rent for the premises for the time the tenant remains in possession of the premises at a minimum; 
  5. If the tenant abandons the premises, then the tenant is at risk for the landlord accelerating the terms and conditions of the lease (or paying rent for the time the tenant was in possession of the premises) unless other circumstances are present such as constructive eviction, physical ouster, wrongful denial of essential services, and so forth; 
  6. If the tenant is experiencing issue(s) unrelated to the non-payment of rent, then he tenant must notify the landlord in writing of any issue(s) that are the landlord's responsibility to repair and maintain pursuant to the lease agreement, or South Carolina law, giving the landlord fourteen (14) days to ameliorate the issue(s) (or a reasonable time thereafter), or the lease will be terminated by operation of law; 
  7. A landlord may not forcibly evict a tenant from the premises such as changing the locks to the premises or physically removing the tenant's property from the premises;
  8. A landlord may not access the premises without providing advance notice to the tenant pursuant to the terms and conditions of the lease or South Carolina law, which prohibits checking the tenant's mail, entering the premises in non-emergency conditions, and so forth that interferes with the tenant's quiet use and enjoyment of the premises; 
  9. A landlord that wishes to sell the premises while a tenant still occupies the premises must follow the correct procedure for terminating the lease pursuant to the terms and conditions of the lease or South Carolina law because the tenant has the right to occupy the premises until the end of the lease term or tenancy period, however, the landlord and the tenant may mutually agree upon modifying the terms and conditions of the lease or work out a mutually beneficial arrangement to accommodate both parties in the change in circumstances for the landlord's need to sell the property provided that reasonable minds prevail; 
  10. A landlord that has the premises on the market to sell the property while a tenant occupies the premises must take care not to infringe upon the tenant's right to the quiet use and enjoyment of the premises when showing the premises to future, prospective buyers of the property; 
  11. For prospective buyers of homes when the property is currently occupied by a tenant, the buyer of the property stands in the shoes of the landlord and must abide by the terms and conditions of the lease agreement or follow South Carolina law with respect to providing tenants adequate notice to vacate the premises before taking possession of the property;
  12. A property manager who is both the agent for the landlord and the real estate agent to sell the property may present a conflict of interest and a breach of fiduciary duty to the landlord, as the owner of the property, when listing the property for sale to prospective buyers and leasing the property to prospective tenants to double-dip on commissions paid for both selling the home and rental income from property management fees for leasing the same property; 
  13. If a landlord wishes to terminate the landlord-tenant relationship and have the tenant vacate the premises, then the landlord must provide any notice of default, notice to vacate, or notice of termination of the lease that is in compliance with either the lease agreement or South Carolina law to be valid or the landlord may be liable for wrongful eviction among other causes of action (and please note that a notice of default does not terminate the lease or the landlord-tenant relationship); 
  14. If the tenant no longer remains on the property, for whatever reason, the tenant should provide the landlord with the tenant's forwarding address for purposes of receiving notices, refunds of security deposits, and so forth, however, if the tenant obtains legal counsel, then legal counsel may act as the forwarding address on behalf of the tenant; 
  15. The landlord must resort to the judicial process to evict a tenant as only the magistrate (or circuit) court holds the power to forcibly remove a tenant from the premises, or one appointed by the court such as a sheriff's constable, and, a landlord that engages in bullying behavior to intimidate or threaten tenants to vacate the premises without resorting to the judicial process will be exposed to liability for various causes of actions; 
  16. Only the magistrate (or circuit) court has the power to remove a tenant, or the Tenant's property, from the Premises with all notices from the court that will be mailed or delivered by a court official, or sheriff's constable, and any landlord or property manager that falsely asserts this notice as a legal notice from the court is exposed to liability to falsely asserting the authority of law and fraud and misrepresentation; 
  17. If the tenant has received a Rule to Vacate or a Show Cause from a magistrate court, the tenant will need to appear before the magistrate court within ten (10) days of receiving that notice from the court to schedule (or re-schedule) a hearing, and it is highly recommended that the tenant should obtain legal counsel at this point to make the necessary arguments before the court to preserve the record in the event the tenant needs to appeal the magistrate's decision; 
  18. Because South Carolina does not offer any expungement procedures for a writ of ejectment from South Carolina public records for tenants, tenants obtaining legal representation before a writ of ejectment is issued against the tenant is important to maintain the tenant's ability to find housing elsewhere as a writ of ejectment may operate to blacklist tenants from renting elsewhere when that landlord, or other property management company, share similar information with other landlords and property management companies through proprietary reporting tools; 
  19. If a tenant has already received a writ of ejectment filed against the tenant, the tenant may have very few grounds to challenge the eviction after-the-fact, and the tenant must move quickly within five (5) days thereafter to file a notice of intent to appeal (depending on the circumstances) or a preliminary injunction to stay the eviction for the tenant to plead the tenant's case before the magistrate. 

Pricing for the Dickson Davis Law Firm

  1. Landlord-tenant issues are time-sensitive, and the Dickson Davis Law Firm does not handle last-minute emergencies, hence, you will need to be proactive concerning your landlord-tenant case that allows adequate time to prepare your case before the Dickson Davis Law Firm will accept your case; 
  2. The Dickson Davis Law Firm charges a flat fee of $3,000.00 to handle landlord-tenant from start to finish before the eviction process has started, or after the eviction process has ended, in magistrate court (if your case falls within the jurisdiction of magistrate court), of which the Dickson Davis Law Firm offers a monthly payment plan of 30% down as the deposit, with the remaining balance due over the next five months; 
  3. If the eviction process has already started, the Dickson Davis Law Firm charges $300.00 per court appearance, $1,500.00 to file a preliminary injunction and appear at the hearing, and $1,500.00 to file a notice of intent to appeal within five (5) days of a writ of ejectment being issued against the tenant and appear at the hearing; 
  4. If your landlord-tenant issue also involves personal injury claims, which are really the predominate part of your case, the Dickson Davis Law Firm will take your case on a contingency fee basis, and address the landlord-tenant issues within the scope of your personal injury claims; 
  5. If you cannot afford the Dickson Davis Law Firm, you may qualify for legal services from the South Carolina Legal Services, and in many cases the Dickson Davis Law Firm may refer you to the South Carolina Legal Services (click to learn more) if you cannot afford to hire an attorney as the South Carolina Legal Services provides pro bono legal services in many landlord-tenant disputes. 

Thank you for your interest in the Dickson Davis Law Firm. I hope you find these issues helpful to best direct you as to whether the Dickson Davis Law Firm may be a right fit for you in your landlord-tenant dispute. 

Best Regards, 

Deborah D. Davis, Esq.

Managing Attorney

Dickson Davis Law Firm, LLC


By: Deborah Dickson Davis, a member of Team Posner

Three simple principles exist in the new movement addressing the rise in pro se litigants. First, the failure to recognize the dynamics behind the rise in pro se litigants undercuts the very fabric of our legal system and the legal profession. Second, the failure to acknowledge the public’s myopia with respect to the legal system and the legal profession is to be obsolete. Third, the failure to acknowledge one’s need to be heard, with or without a guiding hand, is to perpetuate a miscarriage of justice.

From a simple, business perspective, one must know one’s audience: the legal consumer.

The misperception that the pro se litigant cannot afford to retain an attorney is not the primary factor for the growing sector of unrepresented pro se litigants. Well-educated, savvy individuals and small business owners are facing the gauntlet of the legal system alone—by their choice. Of many factors, several reasons readily explain this growing trend: (1) the pro se litigant is not satisfied with the attorneys with whom that person has consulted; (2) the pro se litigant cannot afford an attorney; (3) the pro se litigant is dissatisfied with the process in general; or, (4) the do-it-yourself (“DIY”) consumer trends in the marketplace has shifted into the legal profession. The various motivations for the DIY legal consumer, as a whole, attribute to the rise of pro se litigants.  

Whatever the reasons, and whoever is to blame, for the current state of the public’s myopia of the legal system and the legal profession is irrelevant to a certain point. The myopia exists. The damage to the legal profession and the legal system is already done. Any attorney with boots on the ground dealing with real people every day will confirm that these observations are no surprise. Jaded individuals within the legal profession is now commonplace after living with handcuffs in the form of high cost of entry into the legal profession, the lower return on investment from higher education, rules constricting the ability to assist prospective clients with a limited scope of engagement, and the financial reality of accepting or declining cases from a cost-effective perspective. And, those once-idealistic-altruistic attorneys compete alongside with those firms and attorneys engaging in very unethical practices from a consumer advocacy standpoint. 

From a simple, public relations perspective, now is the time for damage control, and the legal profession must respond in kind. The rise in pro se litigants is only climbing. Taxpayer money deserves to be well-allocated within the legal system to handle this rising trend for the DIY legal consumer. The legal profession must evolve and adapt to the new legal consumer—not cling to a viscous cycle of mistakes simply because of the amount of time and resources invested into making a mountain out of a molehill.    

More than likely, comparing the cost to the legal system from the rise in the pro se litigants with the costs of funding ancillary programs for either pro bono services or consultation services by legal professionals in civil litigation may actually expose the exponential, hidden costs of wasting taxpayer money in the present state of affairs with the actual administration of the legal system in the current adversarial model. Standing alone, the mandatory requirement of mediation to ease the burden of judicial administration in certain cases is a major indicator of the hidden costs facing the judiciary system as a whole. Much scholarship exists on the Access to Justice movement for further information, a movement that is part and parcel to a bigger issue at hand.      

At present, Richard Posner has taken a strong stance to address the rise in pro se litigants, and seeks to create a team of like-minded individuals to turn his vision into a reality: Team Posner. Whether one agrees with Professor Posner’s views, Professor Posner being one of the most brilliant, legal minds of our era is, arguably, undisputed. Team Posner is in the brainstorming phase to roll out a national program to address this issue. Likeminded individuals who want to put force and momentum behind this movement are welcome to inquire further.  

Many people do not like change. Many visionaries are often criticized and regarded as brilliant or insane throughout the course of mankind’s elastic relationship with innovation. Ingenuity does not come from conformity. Because of Professor Posner’s stature, the media will undoubtedly respond in kind with much predictable, criticism from all directions. And, he can handle it—as only someone of his stature can.

One prong of the public myopia is that the legal profession is viewed as a self-protectionist profession. Those within the legal profession, whether professors, judges, or attorneys, who view this proposed change as a threat to the legal profession fail to see the forest from the trees. In reality, pro se litigants are not hiring attorneys. That is the whole point. The real issue facing the legal profession is, when the market of pro se litigants vastly outnumbers the market of paying clients, whether the legal profession will respond in kind to accommodate this DIY legal consumer or become obsolete. Either the legal profession can figure it out, or the will of the people can by cutting the Gordian knot and changing the nature of the legal system.

The misperception of too many attorneys in the profession is misplaced. Perhaps, and more accurately stated, the pool of attorneys compared to the pool of paying clients is disproportionate compared with the barriers of entry into the legal profession. And, the demand for legal services is not diminishing. The supply of legal services is the problem. The legal profession is not capturing the full market share of legal consumers. Many attorneys are declining those cases because either the prospective client cannot afford the attorney or the dispute itself does not warrant the cost of hiring an attorney. An entire market of unrepresented legal consumers is on the rise.

Just liked an unbanked class of consumers exist within the financial sector, an unrepresented sector of consumers exists within the legal sector. The ingenuity of Professor Posner’s vision is to create a way for the legal profession to cater to this unrepresented legal consumer and help decrease the overall burden on the administration of justice. Professor Posner’s vision is a win-win for all involved. When viewing the forest for the trees upon a mountaintop, the rise of pro se litigants is a major epidemic facing the legal system presenting significant, hidden costs for taxpayers. Further research efforts need to be devoted to that price tag.

To be clear, Professor Posner’s vision is not a threat to the legal profession. The proposed solution is not in competition with maintaining attorneys as a profession and attorneys’ ability to make a living. No competition exists when the legal profession is not adequately servicing the unrepresented legal consumer, or choosing not to do so for whatever reasons. While being an attorney is about being a public servant, the high cost of entry into the profession creates an untenable situation to provide pro bono services or accept cases that are not cost-effective to both the attorney (or firm) or the client’s best interests. The guiding hand needs help to do so. Likeminded individuals and organizations are encouraged to inquire further about sponsorships and funding for this program.

Finding creative opportunities to service unrepresented legal consumers opens the door for the boots on the ground to give legal aid where aid is needed most without being handcuffed to do so. Whether funding this movement in the capacity of providing pro bono counsel to pro se litigants, serving as co-counsel to the pro se litigants, or lobbying for pro se litigants, forming public-private partnerships will be most beneficial to join forces and create new opportunities within the legal profession for the legal profession to adjust accordingly.

In a legal system where one must pay to play, what happens when people stop paying? If the legal profession does not evolve, and become part of the solution, someone else will capitalize on increasing the market share of legal services provided to this untapped, ripe market of DIY legal consumers. Just google pro se online to see a wealth of resources for pro se litigants. The market always finds a way to adapt around the rules and regulations held in place favoring self-protectionism. Consumerism is fluid, and will exert pressure over time like running water icing over the crags of a mountain.

Unfairly characterizing Professor Posner’s vision from a self-protectionist viewpoint merely exacerbates the public’s myopia with the legal profession protecting its own interests—and not the interests of the people, the legal consumer. Rather, more should be done by way of statistical analysis to drill down on the issues mentioned before. Real people have real problems and need real help. From the jaded to the obscure, those within the legal profession speaking on this issue often fall upon deaf ears. Professor Posner merely speaks for all of us lost in obscurity because he has a louder megaphone standing on the mountaintop.

At issue, the rise of pro se litigants deals with an undercurrent that stands on a precipice of exploding the foundations of our legal system and the legal profession. In reality, the law is so overly hyper technical and convoluted that the guiding hand—the attorney—needs a guiding hand. For the determined pro se litigant willing to take on the legal system alone without formal, legal training, what brave souls.  

When someone of Professor Posner’s stature cries foul about pro se litigants, the litmus test indicates change is coming as the avalanche nears. This issue is more than just having access to justice. Access to justice does equate to receiving justice; miscarriages of justice may still occur. One’s need for a right to be heard is not just a substantive right under our Federal Constitution. The need is also an emotional one grounded in principles of fairness and respect when resolving disputes. Like a mountain climber facing a choice to cut the rope to save others’ lives, the legal profession needs to cut its losses for our rights and freedoms to survive in the long run.

The rise of pro se litigants is merely a symptom. The public’s myopia with the legal system and the legal profession is a call to action. For those of us who love the law, cherish the rights and freedoms of this great nation, we must honor the profession that we endeavor to serve. A need for attorneys will always exist. However, the manner in which we serve must evolve to enforce or defend our rights for all involved. The guiding hand cannot reach out when handcuffed by Gordian knots.  

At issue is due process, both substantive and procedural due process when enforcing or defending one’s rights and remedies. At the heart of the matter is human dignity.

Put Justice Back on the Menu: Part I

To unveil the mystery of the criminal legal process in general terms, imagine that you are eating at a restaurant in a common, everyday dining experience to illustrate this process.

The head chef, who is also the restaurant owner, has two sous-chefs, kitchen tasters, servers, dishwashers, busboys, hostesses, prep cooks, line cooks, restaurant managers, and so forth working in the restaurant. The head chefs oversees all meals being prepared and served to diners.

One of the greatest challenges for the head chef running the restaurant is delivering consistent quality when serving the diners the restaurant’s menu day after day. By contrast, in the courtroom, whether justice is served is relevant to whether diners keep eating at that restaurant.  

One of the main purposes of having a formal legal process is to avoid disorder and chaos by individuals taking the law into their own hands to seek vengeance for actual or perceived wrongs done to them by others. In translation, justice is rooted within the public confidence in the criminal justice system by the faithful, consistent application of the law in a non-discriminatory, impartial manner. In theory.

In reality, cynicism often plagues the public confidence and sense of justice in the criminal justice system like the leftover fish left in the trash overnight that makes the restaurant reek the next day. 

Whether justice occurs, and the truth prevails, is similar to whether you are eating at a great meal, an average meal, or a bad meal in the restaurant. Justice has been served: a great meal. The truth remains unknown: an average meal. Somewhere in between justice served and the unknown truth: a bad meal.  A bad meal leaves a bad taste in the mouth because a miscarriage of justice has probably occurred.

Just because the restaurant doors stay open does not necessarily mean that the food is great—or justice is being served. Open doors just means that business carries on as usual. 

By Deborah D. Davis