Self-representation in civil and family law
As the cost of legal advice continues to rise, so too does the number of people who choose to represent themselves in court. It is an issue in the United States and, increasingly, in Canada. Self-represented litigants are rarely as efficient or effective as lawyers. As Mr. Justice McEwan noted in Vilardell v. Dunham, a case involving two unrepresented parties:
Competent counsel might have cut the time in half, because counsel generally know how much evidence is enough. Unrepresented parties, even those who run their cases well, as these parties did, have no idea, and often labour under the apprehension that more is better.
University of Windsor Law Professor Dr. Julie Macfarlane is studying the experiences of people who represent themselves in family and civil court in BC, Alberta and Ontario. She is in the process of interviewing self-represented litigants, court clerks and counter staff, and will present her findings to the legal community next year.
Benchers’ Bulletin: What are people telling you about why they chose to represent themselves?
Dr. Julie Macfarlane: By far the most common reason is financial. People are not eligible for any legal aid. They also feel they don’t want to spend the $10,000 or $20,000 they’ve saved up for their kid’s college or their next vacation. If this was my parents’ generation, they would not be doing this on their own. They would never dare approach something like this without the assistance of a lawyer, and they would somehow scrape together the money. Today, people don’t feel like that. They feel like there are other options for them, self-help options, because of the accessibility of legal information on the internet. So they try to handle the process themselves.
BB: How is the experience for people who represent themselves in court?
JM: The vast majority are telling us the experience is frustrating and much more difficult than they expected. They complain constantly about being treated dismissively by the lawyer on the other side and by the judge. They feel that sometimes what the other side is doing is trying to bury them in paperwork. This is their perception because they are not accustomed to being involved in litigation. Whether that is actually accurate is another question. They actually wind up being very angry. There is a lot of system anger getting expressed here. I think we have tried to give people the sense the courts are there to be accessible and so forth, but there are a lot of people saying: “This is not accessible, this is so complicated, this is an insiders’ club.”
BB: What does it do to the functioning of the system when people feel they can’t afford a lawyer and choose to represent themselves?
JM: Two points. One is that the courthouses themselves feel like quite different places than they did ten years ago. This is clear from the interviews we did with the counter staff and the clerks. It’s creating a huge pressure on the people who work at the counters because, in a way, their job descriptions have changed. They are not just dealing with lawyers; they are dealing with lay people and they are always in this difficult situation about how much help they can give them. The other impact is that there is increasing pressure on lawyers to try and provide services in an unbundled way. People talk all the time about going to lawyers and saying: “Can you just check my forms? Can you just write a letter to the other side? Could you just look at what I am going to use as case law when I go into this hearing tomorrow?” Lawyers, in some ways, are going to have no choice but to think about offering services in a slightly different way.