Don’t Try This at Home

I had missed this story when it came out, but better late than never. The CBC reports on the work of a Windsor Law professor, Julie Macfarlane, according to whose estimation “up to 80 per cent of people in family court and 60 per cent in civil cases represent themselves.” This is is, as she says, “huge,” and creates all sorts of problems for the system, which did not develop with self-represented litigants in mind, and of course for the self-reps themselves. They are, more often than not, bewildered by the process, and emerged frustrated. The report quotes prof. Macfarlane as saying that “[s]ome people feel so burned by this process they need counselling. They’re feeling so emotionally overwhelmed, they need more than legal advice.”

Prof. Macfarlane finds that this wave of self-representation has two main causes. The obvious one is that budgets for legal aid, especially in civil matters, are extremely tight. But the other, says she, is that “[m]any people who, in the past, may have decided they could pay for a lawyer if they scrimped and saved on something else, are increasingly coming to the conclusion that, given the amount of information on the internet, perhaps they can do this for themselves and save a great deal of money in the process.”

That is quite ironic, since the accessibility of legal information is supposed to make “access to justice” easier. But law and justice, as any first-year law student learns, are very different beasts. CanLII might succeed in its stated goal, which “is to make Canadian law accessible for free on the Internet.” Yet it seems that by making law freely accessible, such resources give people a false sense of being able to succeed in the legal system without professional help, and even without more than a very superficial acquaintance with it, which leads them to fail to get the justice, if any, that the system could give them if used properly.

That’s not to say that CanLII should shut down. It is a precious resource, for lawyers and others alike. But it has a perhaps non-obvious downside, of which we should also be aware.

In fact, the whole issue of self-represented litigants and access to justice abounds in complexities that are forgotten more often than they should be.

For example, most lawyers’ instinctive reaction is to say that legal aid budgets need to go up. This is not exactly a disinterested response, since the money from any such funding increase will go straight into lawyers’ pockets and, by increasing demand for legal services, it will allow even those lawyers who do not have legal aid clients to raise their prices. This, in turn, reduces the affordability of legal services for those not eligible for legal aid – and wherever the eligibility threshold is set, someone will always be just outside it. More legal aid means more access to justice for some, but perhaps less for others.

But I do not mean to suggest that lawyers’ calls for more legal aid are only motivated by crass self-interest. They are also the product of the natural human tendency to think that whatever occupation or field of activity one is engaged in is hugely important for society and deserves to receive way more attention (including, but not limited to, funding) than it now does. So doctors will tell us how important healthcare is, scientists will tell us about the imperative need for more science, and philosophers will try to get each and every one of us to do more philosophy. Again, it’s by no means only, or even mostly, about money. So lawyers think that law is valuable and important, and it is a tragedy that some people are deprived of its great blessings. I’m a lawyer (an academic one, but here the difference does not matter), so I think so too, but that’s not an objective opinion.

That’s not enough to prove it false though. I could wax eloquent about the importance of legal rights and of our ability to defend them. I have tried to do a bit of that in my comments on Vilardell v. Dunham, the judgment on hearing fees in BC, and also in my paean to the Charter. (Well, you’re the judges of my eloquence. But I tried.) Still, we live in a world of very limited resources, especially public resources these days, and it’s not obvious to me that the claims of the legal system (both of its workers, the lawyers, and its users, the litigants) must have priority over those of, say, education, or healthcare or other forms of help to the needy (it might just be that making sure they have enough to eat and a place to call home is more important than making sure they can go to court, right?), however obvious it was to Justice McEwan in Vilardell. Nor is it obvious, for example, that promoting the ability of middle-class people to hire a lawyer is worth raising taxes for.

There might be some non-pecuniary solutions to the access to law/lawyers/justice problems. We can try to make law simpler, less technical, easier to navigate for a layman. Except that making it less technical might actually make it less systematic and thus more difficult to navigate for a layman as well as for a professional, as Jeremy Waldron suggests in an interesting paper called “‘Transcendental Nonsense’ and System in the Law.” We can try to promote alternative dispute resolution, but then we might be giving up on the law itself, and not just trying to alleviate the hardships it imposes along with the benefits it gives.

In case the foregoing ramblings do not make it clear, I am rather lost in trying to think about these things. I saw a few self-represented litigants in action when I clerked at the Federal Court of Canada, and I can only imagine how difficult and frustrating the process must have been for them. At the same time, I am quite sure that some of them made a deliberate choice to go it alone, and have only themselves to blame for their frustrations. Some should not have been litigating at all (which is perhaps something a lawyer would have told them). A couple did a surprisingly good job. Some prevailed, even against the government, because their cases were strong, and also, in part, because they got a judge who was willing to make an extra effort to try to discern legal arguments behind their pleas for justice. (I suspect that most judges are like that.) Others lost, and who knows if the outcome would have been the same if they had had professional assistance. (I would like to think so, of course, but I can’t be sure.) All in all, trying to represent oneself is a gamble, and I wouldn’t advise it, but some people don’t have a choice.

Still, if you can help it, don’t try this at home.

Thanks to Library Boy for the pointer.

UPDATE: There is one solution that I do wholeheartedly support: deregulation. Eliminating the Bar’s monopoly on legal advice and representation in court. But it won’t help those who think they’re too smart to need any professional help, and even non-lawyer legal services won’t be free. Deregulation is not a cure-all.

Author: Leonid Sirota

Law nerd. I teach constitutional law at the Auckland University of Technology Law School, in New Zealand. I studied law at McGill, clerked at the Federal Court of Canada, and then did graduate work at the NYU School of Law.

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