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(L-R) Tami Moscoe, Joel Miller, Heather Hui-Litwin, Noel Semple, Janis Criger

Legal coaching, unbundled services highlighted by panel on A2J for self-reps

Tuesday, November 05, 2019 @ 8:51 AM | By Amanda Jerome


Legal coaching and unbundled services as a means to improve access to justice for self-represented litigants were lauded by panelists at an Access to Justice event on Oct. 29 at the Law Society of Ontario (LSO). The panel also tackled the role of the regulator and decision-makers in assisting self-reps through a system geared towards lawyers.

The Understanding and Supporting Litigants event, hosted by The Action Group on Access to Justice (TAG), was moderated by Janis Criger, a judge of the small claims court in Hamilton and president of the Ontario Deputy Judges Association, and included: Tami Moscoe, senior family counsel for the Office of the Chief Justice at the Superior Court of Justice; Joel Miller, founder of The Family Law Coach; Heather Hui-Litwin, co-founder of the Self-Rep Navigators Association; and Noel Semple, an associate professor at the University of Windsor Faculty of Law.

Miller noted that legal coaching is a “blind spot” that is rarely touched on when discussing the benefits of unbundled services.

“If you want to help a hungry person, you don’t give them a fish, you teach them how to fish. That’s what coaching is. Selling unbundled services is selling fish. The distinction is something that is only beginning to emerge in a fairly clear way because we, as the profession, always felt that you would come to us to do the thing in court and now that that situation is being altered in the dynamic of the self-represented litigant,” he explained, noting that hopefully more lawyers will start trying coaching.  

(L-R) Tami Moscoe, senior family counsel for the Office of the Chief Justice at the Superior Court of Justice; Joel Miller, founder of The Family Law Coach; Heather Hui-Litwin, co-founder of the Self-Rep Navigators Association; Noel Semple, an associate professor at the University of Windsor Faculty of Law; Janis Criger, a judge of the small claims court in Hamilton and president of the Ontario Deputy Judges Association.

Hui-Litwin, who was once a self-represented litigant herself, spoke from experience when she noted a lot of people have “wrong ideas about how the legal system works.”

“What I do now is I speak at libraries to try and educate the public about resources,” she said, stressing that the legal profession needs to “get out there and tell people about these resources.”

She noted that Ontario has a wide range of resources for self-reps, such as Cleo’s Steps to Justice, the Family Law Limited Scope Services Project, or the National Self-Represented Litigants Project (NSRL), but many people have never heard of them.

Following Hui-Litwin’s remarks, Semple added that the NSRL, which is led by his colleague, professor Julie Macfarlane, has an advocacy “edge” to it.

“It’s not just practical, officially sanctioned help materials. There’s an advocacy piece that she [Macfarlane] develops, which is about whether the system is perhaps rigged against self-reps and whether people in the system, and in positions of power within the system, are perhaps using their power in illegitimate ways,” he explained, noting that there’s a “wall” limiting those who want to be able to help in the legal system.

There are “huge crowds of people in Ontario who want to help them [self-reps], who want to provide individual legal assistance to people confronting legal problems, but who are unable to do so and they’re unable to do so for regulatory reasons,” he said, listing paralegals being excluded from family law, high tuition fees, and internationally trained lawyers as examples.

“This is a wall. We have various ladders over this wall that can get people licensed to provide the services that are so desperately needed,” he added, noting that the Law Practice Program is an area where there’s progress in creating a “ladder” over the wall.

“We need to think really hard about whether we can make these ladders wider, whether we can have more ladders, whether we can do anything else to help the supply of the people who want to help be allowed to lead the demand. Getting over this wall doesn’t mean you’re unregulated. We still need a licensing regime, we still need a regulatory regime, but licensing is a very particular type of regulatory regime and it’s one that places very high burdens and barriers in front of people even before they start to offer services.

“I think the law society (LSO) has come a certain way, but we’re not there yet. I think we have to recognize that we have a self-regulated legal profession and when you have lawyers making decisions about licensing and those lawyers have personal, financial skin in the game then we, as the public, need to be a little bit skeptical and a little bit critical,“ he stressed.

Moscoe spoke up in defence of the family law bar, noting that the regulator is working on addressing these concerns, while also trying to fulfill its mandate to protect the public.

“The landscape is changing and it’s always challenging for the regulator, the insurer, the court, we’re all trying to catch up and figure out how to help, but I think that we have to be cautious in terms of how to help, while still protecting the public, and also recognizing the importance of rights and obligations that are being discussed,” she noted.

“I think that the regulator has to look at this considering the competing concerns. Access to justice is a concern, protection of the public is a concern. I don’t think it’s so simple to say, ‘open the flood gates.’ I think that you need a principled and policy driven approach to how you do [this],” she added.

 Hui-Litwin and Miller again stressed the importance of educating the public, encouraging unbundled services and legal coaching.

“Coaching tends to drag us out of our ‘I know it all and I’m going to do it all’ approach to ‘how can I be of assistance to you?’ This is something that’s very new,” said Miller, adding that through his work with The Family Law Coach, he’s realized the importance of client respect.

“I used to think that the person whose respect I most needed was the senior partner at my firm who looked at my billing. And happily, I’ve shifted to the person whose respect I most need is the client who I’m supposed to be helping,” he explained.

“Access to justice without access to services is a game. There is no access to justice without access to services,” he added.

Criger helped wrap up the discussion by explaining her “tips and tricks” of assisting self-reps while working as a small claims court judge.

“There’s a bit of a dividing line between providing assistance with procedure, or common courtesy as it’s known in the legal world, and actually providing advice on how to conduct the case. Obviously, when you’re a lawyer, you cannot provide the other side with advice on how to conduct the case because you have a client that you have to work for and that’s the first thing that should be explained to the self-represented litigant. I think it’s a courtesy to that person to say ‘I’m here. I’m a human being. If you have a question about rules, no problem. If you have a question about how to win your case, I can’t answer that one because I have to work for my client,’” she said.

Criger stressed the importance of being courteous and explaining your courtesy to your client because “one of the things you have to try and do with the self-represented litigant is obtain a settlement.”

“You’re not going to be able to make a settlement if you make an enemy of this person, if you’ve disrespected this person, if you haven’t looked at it objectively to see whether or not, or that they do, have the kind of beef that you should be responding to or your client should be responding to,” she explained.

Criger noted that “assisting self-represented litigants, going to the point that they know where to sit, where to stand, when to serve a document, assists the rule of law, and that’s an obligation we all have.”

Photos by: Amanda Jerome.

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