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What to think about when thinking about self-represented litigants | Joel Miller

Wednesday, August 26, 2020 @ 3:22 PM | By Joel Miller

Joel Miller %>
Joel Miller
For too many of us family law practitioners, and even for some of our best intentioned judges, our first thoughts when we think about self-represented litigants (self-reps) are negative.

They fumble and bumble around, are unfocused, have a poor sense of realistic expectations, are either too argumentative or unable to get out a meaningful sentence, they’re too loud or too quiet, or simply unintelligible, and their written and spoken skills in most cases are abominable. They jam up the system and then whine if they don’t get preferential treatment.

I know. I used to think that too, if I actually thought about “them.”

But we’re wrong.

As a profession we’re mandated by the Law Society Act, which gives us the authority to self-regulate, to “maintain and advance the cause of justice and the rule of law,” “to facilitate access to justice for the people of Ontario,” and “to protect the public interest.” But we then say that only we, the members of our self-governing society, can do the things that people need to have done to advance or protect their interests. Only we can practise law.

It’s a good deal. Everyone in the province has equal access to justice in our courts because everyone has the right to hire one of us to get it for them. If they can’t afford it, they have to try to be like us in a forum designed by us for us with rules of evidence and practice, and skill sets, that take us years of schooling, and then even more years of practice, to develop. We stack the deck against anyone who can’t afford us and then complain that they muck up “our” system.

A four-year study (see “Highlights of the data” section in “Finally, Canadian Data on Case Outcomes: SRL vs. Represented Parties”) showed that in Ontario’s Superior Court, whenever a self-rep was facing a lawyer the self-rep lost five out of every six cases. Is it imaginable that in these cases litigants with lawyers had the better case five out of six times, when those same litigants, if facing another represented litigant, would have won only one out of two times? Even a self-rep facing another self-rep wins 50 per cent of the time.

Courts should be for litigants, not practitioners

We’re well past the time to appreciate that our court system should not be designed for practitioners, but for litigants. There’s plenty of place for rules and standards of practice, but not when they actively, and consciously, create a system that is weighted in favour of lawyers at the expense of people who can’t afford us.

It’s like a king travelling to a village and declaring a festive day of jousting. Every villager and farmer has equal access to the tournament, which has a set of rules designed to give a prize to the winner. Those with money can afford to hire a travelling knight, who has extra lances and horses and years of practice. What chance then does the blacksmith, barmaid, or farmhand have? Saying they have “access” is a farce. That’s us.

Instead we should start thinking about our courts and the rules surrounding appearances from the perspective of the litigant. Let those with money hire a knight. But don’t discriminate against those who can’t or don’t want to.

Start by acknowledging that to “facilitate access to justice for the people of Ontario” we need to make all aspects of our court system meaningfully available to everyone, even if they don’t hire one of our society members. We need to show that we respect those who come seeking a remedy as much as we do the professionals hired by litigants with wealth. If that means the system, including judges, accept a responsibility of bending towards helping them, fine.

Why are the rich entitled to complain about the field being levelled a bit for the rest? Why can’t court office hours be open in the evenings and weekends to accommodate self-reps who have to leave work to file a document? Why can’t we have an opt-in system in which any two parties can choose a relaxed rule hearing?

Why can’t we trust our judges to allow in material that may offend the Evidence Act or rules of practice and evidence — entirely unknown to a self-rep — and decide what weight it will have? What’s so offensive about allowing a tongue-tied and terrified litigant, or one whose native language isn’t ours, have someone speak on their behalf or prepare better written material as of right?

Not even all lawyers have the courage or skill to appear in court — why should we insist that everyone without a lawyer should be able to? Unless, of course, we want to keep the five to one odds in place to convince people how much they “need” us?

No one needs to burn down the system to create one that works for all. But we need to think about our system from the perspective of its users, the actual litigants whose rights are being determined. We don’t need to think outside the box if we enlarge the box.

It’s a curious thing, but understandable, that there are no continuing legal education (CLE) courses or presentations devoted to providing better justice to those who don’t hire us, but lots of sessions about how to do a better job for the declining number of citizens who can.

Unbundled services are just a beginning. We need courses on how to be coaches for people who need more than part, but not all, of what we normally do. There’s a clear role for lawyers in helping self-reps. It’s different from the traditional role, catering only to those who could pay us and ditching them when they couldn’t.

But opportunities exist for any profit seeking lawyer willing to re-evalute their skills and how they deliver their services. There’s lots to think about if we only have the interest, and will, to do so.

This article is the fourth of a series on self-representation. The first article: Law schools must teach about self-represented litigants | Cassandra Richards; second article: Immigration detention: Lack of legal representation | Madeleine Andrew-Gee; third article: COVID-19 is modernizing courtrooms — but for whom? | Kendra Landry.

Joel Miller is a senior family law lawyer and dispute resolution officer for the Superior Court of Ontario. After several years in private practice he founded The Family Law Coach, a virtual law office providing unbundled services and coaching.

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