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Access to justice for self-represented litigants post-COVID-19 | Savleen Sur

Thursday, August 27, 2020 @ 2:55 PM | By Savleen Sur


Savleen Sur %>
Savleen Sur
Self-represented litigants (SRLs) face several challenges in court given their lack of legal training and the complexity of our legal system. Unfortunately, the COVID-19 pandemic has only exacerbated the challenges faced by SRLs.

As the legal community scrambles to understand and adjust to the reality of many COVID-19 related changes, the impacts on SRLs must not be forgotten. As we move forward with legal reform in the COVID-19 era, there are a few considerations we must prioritize to improve access to justice for SRLs.

1. Technology can be an option, not a default

Many have raised important concerns about how the modernization of our court systems through technology may disadvantage SRLs. Others have insisted that technology will have beneficial impacts on access to justice for SRLs.

Courts have moved to accept e-filing as a consequence of the crisis. Further, SRLs no longer need to travel to the courthouse to attend their hearings, which can help reduce time and costs.

However, while there are advantages to using technology, for some it can only go so far. Some SRLs may have less bandwidth, less reliable Internet, limited data plans, or may not have access to the Internet or a computer at all. Others may not be able to access a quiet spot in their homes or may feel vulnerable displaying their living situation on camera. Videoconferencing is an option, but it should not be the only option for continuing court services during the COVID-19 pandemic.

We should not take a one-size-fits-all approach to justice for SRLs. Instead let us give litigants, and SRLs in particular, numerous options when dealing with legal proceedings. In these difficult and uncertain times, our courts need to be flexible.

SRLs should have a say in how they want to proceed with their case. They should have the option to file their documents online or safely in person. Further, when reasonable, they should be given the option of a virtual trial or an in-person trial. This could also mean that courts can set up rooms where SRLs without internet access or anxieties associated with videoconferencing from home can go to if they would prefer to do virtual trials.

Offering technology as an option, rather than a default, ensures greater access to justice for SRLs. SRLs can make decisions about how they want and can proceed with their legal issues based on their current situation and needs.

2. Ensure constant communication of court changes to SRLs

Many SRLs are very unfamiliar with the legal system. For many of them, it is like navigating an entirely different world. Even in the absence of a pandemic, the justice system often fails to adequately support SRLs. Their unfamiliarity with the legal system and the rules of civil procedure can worsen the anxiety of simply having a legal issue. Now, the pandemic makes the goal of access to justice further remote in several ways.

The situation regarding COVID-19 is constantly and rapidly changing which means many using the system have a lot of unanswered questions. Are courts open? When is my court date? How do I talk to other parties? How do I file documents? What e-mail do I use? Who do I talk to when I have a question? Even seasoned lawyers are struggling to learn and keep up with the constantly evolving situation.

Accordingly, SRLs may have increased frustration in trying to understand current court protocols. Courts must ensure constant and reliable communications with SRLs and the public. Communication must be vulgarized in simple terms and should be made available on multiple platforms (online, by phone, in person) to ensure that everyone can have access to the information.

The National Self-Represented Litigants Project (NSRLP) is dedicated to helping Canadians understand the challenges faced by SRLs. Currently, it is providing updates on court openings, protocols and resources on the courts in the face of COVID-19. Courts and members of the justice system can work closely with organizations like the NSRLP to ensure access to justice in the time of COVID-19 for SRLs. NSRLP and courts should partner together to get the word out to as many SRLs as possible.

3. Help SRLs plan ahead

In cases where courts know SRLs are involved in a file, court staff should plan ahead with the SRL. For example, during court closures and now reduced operating hours, the Small Claims Court in Montreal had begun calling SRLs to complete their file for their upcoming hearing. They ask the SRL if they have obtained the expert evidence required or verify that affidavits have been sworn.

This will ensure that when SRLs go to court they will be prepared. It also ensures that we are not creating more delays for all justice system participants. Other courts should consider taking on the same proactive actions.

What’s next?

The changes in the justice system due to the pandemic affects all of the members of the legal system. However, it has aggravated many of the challenges already faced by those marginalized from the legal system, including SRLs. Despite the many difficulties, we have the power to make real change and improve access to justice.

The considerations listed above are few among many, but they can be promising if they are properly implemented by the legal community. As we move forward, it is important to listen to the needs of SRLs to effectively dismantle barriers and ensure access to justice for all.

This article is the fifth 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; fourth article: What to think about when thinking about self-represented litigants | Joel Miller.

Savleen Sur is a second-year law student at McGill University. She thanks Cassandra Richards for reviewing previous drafts of this piece.

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