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Self-represented or unrepresented? | Pamela Cross

Tuesday, November 03, 2020 @ 12:34 PM | By Pamela Cross

Pamela Cross %>
Pamela Cross
There is a lot of talk these days about people who make their way through what are often complex legal situations without the assistance of a lawyer. The National Self-Represented Litigants Project has done an excellent job of raising awareness about the issue as well as developing tools and resources.

Access to justice initiatives refer repeatedly to the need to change systems to better serve those without lawyers. The Canadian Judicial Council has developed a Statement of Principles for judges who face ever more people without lawyers in their courtrooms.

Research has been conducted into why people don’t have lawyers and what needs to be done about it. The Law Society of Ontario is considering expanding the scope of paralegals and possibly others, in part to address the high rate of people with family court cases who don’t have lawyers.

In all of this talk, research and attention to the issue, I have heard very little discussion about the language that is used to describe these people without lawyers. Almost universally, they are referred to as self-reps or self-represented litigants (SLRs).

I want to challenge the lumping of all people without lawyers under this same heading. In the work I do at Luke’s Place, as well as with other women’s anti-violence organizations — work that is focused on assisting women who have left an abusive relationship with dealing with their family law issues — I see a lot of women who don’t have lawyers. Well over half the women who turn to Luke’s Place for support are lawyerless.

Not one of them thinks of herself as self-represented. These women (and other vulnerable members of our communities) are unrepresented.

There are many reasons they don’t have a lawyer, but none of those reasons is choice, which is implied by the term “self-represented.” I work with women who had a lawyer until their money ran out but still they don’t qualify for legal aid; whose parents remortgaged their home to pay for a lawyer, but those funds are gone; who had a legal aid certificate but the hours have long since been used up, and who have never had a lawyer.

Often, women are in this position as a direct result of the abuse they are attempting to flee. Their partner may have controlled the money while they were together, so the woman had no opportunity to build savings or even to know about the state of the family finances, or ran up staggering debt without her knowledge but she now shares responsibility for that debt.

The abuser consulted with every lawyer in the community who takes legal aid certificates, retaining none of them, but conflicting every one of them out of being able to act for the woman. Or, he has dragged the court case on beyond anything reasonable, bringing repeated vexatious motions, failing to produce documents in a timely manner, refusing to follow court orders — all of which eat into the women’s retainer or certificate hours until there is nothing left.

These women, with rare exception, are not representing themselves; they are struggling to find their way through the family court system — complex at the best of times and nightmarish when the opposing party is abusive — without representation.

Their partner, on the other hand, may be represented or, as Rachel Birnbaum’s and Nicholas Bala’s recent research with Ontario family court judges has found, may be representing himself as a matter of choice, so he can, untrammeled by a lawyer’s representation, engage in legal bullying and otherwise use the court proceedings as a way to terrify, intimidate and harass his former partner. Fully 44 per cent of the judges surveyed by Birnbaum and Bala noted this gendered difference in the reasons why people do not have lawyers (see “Judicial perspectives on self-represented litigants in family court”).

Everyone pays the price for people who attempt to manage their own legal case without legal representation, whatever their reason for being in that situation may be. Cases move more slowly; the opposing party, if represented, often spends more money; court dockets fill up and back up; judges struggle with how to manage the case in a fair and impartial way. Most importantly, of course, unrepresented litigants seldom emerge from the process with the best possible outcome.

There are many possible solutions to this important barrier to access to justice: the licensing of Family Legal Services Providers; increased reliance on limited scope retainers or legal coaching; an expanded role for duty counsel; increased funding for Legal Aid Ontario and broadened eligibility criteria, and more. Many family law lawyers take this on personally, offering both low- and pro bono services to clients in need.

To ensure that our possible solutions are the right ones, we must name the problem correctly. For me, that starts with distinguishing in our language between litigants who self-represent and those who are unrepresented.

Pamela Cross is a feminist lawyer who works on issues related to violence against women and the law. One of her key roles is as the legal director of Luke’s Place in Ontario.

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