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Law schools must teach about self-represented litigants | Cassandra Richards

Tuesday, August 18, 2020 @ 10:41 AM | By Cassandra Richards


Cassandra Richards %>
Cassandra Richards
Self-represented litigants (SRLs) are a growing phenomenon. The high costs of hiring a lawyer and the inadequacy of legal aid mean that many have no choice but to handle their case without the assistance of a lawyer. As a legal community we are acutely aware of this, yet legal education has largely excluded this occurrence as an area of study.

However, law schools are not the only legal actors failing to consider self-representation. As a legal profession we largely ignore the many SRLs filling our courtrooms. They aren’t going to pay the bills, they aren’t our client, so we see the plight of SRLs as outside of our responsibilities. For many lawyers, self-representation only comes to mind once they oppose an SRL in court.

Law school curricula teach about the legal system mainly through the perspective of a lawyer or judge, but these are not the only actors in the courtroom. Law students must learn about another important actor in the legal system, SRLs. Our courts and our profession are changing. If we want law students to be equipped to respond to the actual realities of our courtroom and the needs of those who use them, they must learn about self-representation.

Professor Julie Macfarlane of the University of Windsor Faculty of Law has long called on law schools to take access to justice seriously, which requires teaching about self-representation and the ways to address it. She insists that: “No amount of progressive rights in any [area of law taught to law students] is meaningful unless we can first accept that the majority of people can no longer afford lawyers — and that other forms of assistance are severely restricted by the monopoly privilege of the profession.”

I echo this call to action. Given the complexity and adversarial nature of our legal system, legal assistance is necessary to meaningfully advocate for one’s rights.

Some institutions have taken on the cause. This past spring I created and taught a course at McGill’s Faculty of Law on self-representation. Windsor University’s Faculty of Law offers a first-year mandatory course titled “Access to Justice” in which self-representation is often discussed. The faculty also offers a course on legal coaching for SRLs given routinely by lawyer Georgette Makhoul.

Further, professor Richard Devlin at Dalhousie Law School includes a segment on SRLs in an upper year professional responsibility course. These courses must be offered systematically and other law faculties must follow suit.

Evidently, including self-representation in law school curricula has widespread advantages for SRLs. However, aspiring future lawyers and the administration of justice equally benefit.

First, students learn about the SRL phenomenon at a deeper level. They come to understand the multiple and intersecting factors that lead to self-representation and the importance of affordable and accessible legal services. Further, students learn about concrete challenges faced by SRLs in different areas of law, such as criminal, family, immigration and civil cases.

Second, students learn about various models of delivering legal services which promote access to justice for SRLs, while also ensuring the profitability and quality of services rendered. These include, among others, legal coaching, unbundled legal services, limited scope retainers, as well as optimizing on different vertical and horizontal divisions of labour. Students consider the benefits of different practice models in solo, small and large-scale firms.

As more and more people are unable to afford the traditional lawyer-client retainer, students must be equipped to adapt their services to the needs of their future clients.

Third, future lawyers must be properly trained to facilitate a relationship when opposing an SRL. Client management is an ever-increasing challenge, especially when the opposing person is self-represented and therefore without legal knowledge.

This can have vast consequences on the party represented by a lawyer, impacting the quality, time and price of services they are receiving. Students must learn how to create a working relationship with an opposing SRL to benefit their client, the opposing SRL and their own practice.

Fourth, students are exposed to routine ethical and legal challenges that arise when opposing an SRL in and outside of court. For example, how many times should I object to an SRL consistently admitting hearsay evidence on the same issue? It is crucial that students be prepared to respond to these very likely future challenges, which require a delicate balancing of one’s ethical and legal obligations.

While learning about self-representation should begin in law school, it should not end there. Bar societies can offer continuing legal education courses on self-representation to their members. Moreover, judges need to be adequately trained to respond to the needs of those before them. Greater judicial education on this topic and on techniques to facilitate proceedings with SRLs would benefit judges, the parties and the administration of justice alike.

Self-representation is a problem of the legal community that we all need to be preoccupied with and committed to addressing. Law schools have an important role and great potential to effect change. What law schools teach and how they teach it mould future jurists. Self-representation must be considered and discussed from the beginning of one’s introduction to the law in order to make access to justice for all integral to legal culture.

This article is part of a series on self-representation organized by The Lawyer’s Daily and me. It was inspired by a course given on self-representation at McGill’s Faculty of Law this past spring by Cassandra Richards. This series seeks to bring greater attention to the issue of self-representation in various areas of law from the perspectives of the legal community, notably educators, lawyers and law students.

The second article in the series is: Immigration detention: Lack of legal representation | Madeleine Andrew-Gee; third article: COVID-19 is modernizing courtrooms — but for whom?; fourth: What to think about when thinking about self-represented litigants | Joel Miller.

Further, many articles in this series propose concrete changes that can be brought to our legal system. This series hopes to foster greater dialogue about this important issue and calls on the legal community to take action to improve access to justice for all.

Cassandra Richards works and researches in criminal law and access to justice. She would love to hear from other educators about how they integrate self-representation into their course curriculum. The views expressed are only those of the author in her personal capacity. Follow her on Twitter at twitter.com/crich114.

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