Mission Impossible? Improved Access to Justice in Canada? Litigation Suicide: Self-represented litigants considered fools by the establishment, but more Canadians are acting as their own lawyer because they don’t have a choice.

More Canadians are acting as their own lawyer because they don’t have a choice by The Sunday Edition, March 25, 2018

INTERESTING! Listen 20:13 Min

From the interview:

On self represented litigants:

“They are everybody. They are you and they are me.”

“The view of the establishment, they have a name for it. They call it ‘Litigation Suicide.’ … They’re going to get killed in the court system.”

“We have been collecting data for some time now at the project, that shows…in cases decided across the country that self-represented litigants fair very poorly. … This research was replicated in the United States and came up with similar results. … It’s the procedure in all of our courts that’s now so complex and lawyers have ways to find through it because they’re used to dealing with one another and sometimes letting things pass but when a self-represented litigant tries to navigate court procedure plus experiencing the fact that in all procedures, judges have a discretion in terms of how rigidly those rules are applied, this is where they get tripped up. … What they [self-represented litigants] really feel they really need help with is procedure.”

Michael Enbright:

“Is that because he or she is an outsider in the system And is looked down upon by the establishment.” [Ordinary litigants are looked down upon by not only the establishment, they are looked down upon by their own lawyers!] ?”

… “It’s partly that.”

Where this project causes the most discomfort is within some of the more established parts of the bar who see self-represented litigants as simply an irritation and people to be effectively driven out…without necessarily wanting to accept the bad news here…they cant afford you. … I’m talking about any really established secure parts of the bar.

The legal profession is a very complex profession and it’s a very powerful profession. And it has many different elites in it.

I think that there is also a problem within the culture of the bench in some places. We see some judiciaries that are very open to working with self-represented litigants and pride themselves on really trying to make the system accessible.

But there are other parts of the country where the culture seems a lot more closed, a lot more defiant and where there is an effort to create new rules of procedure that will effectively make it more difficult for people to be self-represented.

I want people to think of self-representation as a problem that we need to solve, not as we’ve got a bunch of crazy people who we’ve got to somehow just throw out of the courts.

[Of course the upper legal establishment works to keep ordinary Canadians out of their exclusive super rich and powerful white-supremacist-man’s club! Look at how they bash their own! ]

***

The article accompanying the interview:

It is a trend most Canadian judges and lawyers do not like: a growing number of Canadians are representing themselves in court.

Some hire a lawyer then find the legal fees are unaffordable. Others opt to argue their own case from the beginning. This is happening not just in small claims courts, where self-representation is the norm, but in higher courts, where legal procedures and protocols are challenging for a lay person.

The National Self-Represented Litigants Project (NSRLP) offers help. It is an innovative program at the University of Windsor and the brainchild of Julie Macfarlane. She is a Distinguished Professor in the Faculty of Law and has been spearheading this support network for almost five years.

She tells The Sunday Edition’s Michael Enright that those inside the legal system have long seen people who represent themselves as “aberrant” or “those crazy people who think they should be lawyers.” Many lawyers have asked her “why I was bothering to talk to these people who dragged their plastic bags behind them into court.”

The reality, she says, is that people don’t have a choice. Canadians are representing themselves in greater numbers because they cannot afford to pay high legal fees. “They are everybody, they are you and they are me,” she says. “I don’t think that either of us would probably be able to go on paying at the rate that it would require to pay a lawyer, at $500-plus an hour for a piece of protracted litigation.”

At least half the people in family courts across the country arrive without lawyers. In Toronto, the figure is closer to 80 per cent. Appeals courts are reporting around 30 per cent self-represented litigants, and in civil courts the figure is between 30 and 40 per cent.

Legal aid only helps the very, very poorest people. And in Ontario, the eligibility level is actually set below the level of welfare.

“These are people, quite often, with a high level of education. They’re intelligent. They’re committed to doing it and figuring it out, so we do see some fairly extraordinary victories.” At the same time, Macfarlane says, “they are often subject to some of the litigation tactics that lawyers are much more familiar with.” Often these tactics cause self-represented litigants to lose their cases.

“What is really challenging for people representing themselves isn’t the stuff we teach people at law school, the substantive law,” Macfarlane adds. “It’s the procedure.” Judges have discretion in how rigidly procedures are applied and, most often, this is where self-represented litigants get tripped up.

This is an area where the NSRLP is helping Canadians. They cannot offer legal advice or act as counsel, but their coaches can help them through the process by guiding people through court procedures and being “someone who’s in their corner.” They also keep a national inventory of lawyers who charge affordable fees, and produce resources to help Canadians navigate the court system, such as how to access written court transcripts.

Macfarlane acknowledges some judges are doing an outstanding job in helping people who represent themselves in court, by taking the time to explain procedure and making sure someone isn’t disadvantaged, “but it’s not something that is consistent across the country,” Macfarlane says. The Supreme Court of Canada acknowledged this in a recent ruling, in which it said courts may not treat a self-represented litigant in the same way in which they treat a lawyer.

“Judges need to come to the bench now with a different sensibility about what their job is,” Macfarlane says. “We really need to take seriously how we re-equip the judiciary.”

The NSRLP is encouraging the “unbundling” of legal services, where instead of working on a retainer and controlling an entire file, lawyers would contract to take on only particular tasks, such as legal coaching, reviewing an application form for divorce or preparing for a case management conference.

Judges need to come to the bench now with a different sensibility about what their job is.

Macfarlane says she is surprised by the number of people across Canada who believe our system of legal aid is there to help them if they can’t afford a lawyer.

“In actual fact, legal aid only helps the very, very poorest people. And in Ontario, the eligibility level is actually set below the level of welfare,” she says. “So it is extremely difficult to get legal aid.”

In some legal circles, there is a continued resistance to the trend of self-representation, which Macfarlane says is unfortunate: “This genie is not going back in the bottle.”

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