As judges and the public become more aware of what is driving the self-represented litigant phenomenon – the unaffordability of private legal services and diminishing public assistance – some curious paradoxes are playing out in the way that the courts deal with these realities.
1. “I have no choice – I am unrepresented, not self-represented. It’s not that I think I can do this better than a lawyer. I have no choice. I don’t have $350 an hour to pay a lawyer.” (SRL from the National Self-Represented Litigants Research Study)
Despite the overwhelming evidence that money is the primary factor in self-representation, and the numerous testimonies of SRL’s to this point, judges continue to tell them – sometimes kindly and solicitously, sometimes disdainfully and contemptuously, that they “should” retain counsel to represent them.
The same admonition appears at the bottom of each page in many court forms. However well-intentioned – or aligned with the profession’s fetish with covering themselves in every eventuality – telling someone who has no money that they must find money to hire a lawyer is a best aggravating and at worst pointless. Directing SRL’s to sources of free or subsidized legal information and advice might be more useful – although these types of services are already over-extended (witness the line-ups for assistance at the busiest courthouses).
2. “The Applicant Mother is intelligent and articulate. …Applicant understands the issues …the Applicant (identified) the correct precedent cases that set out applicable principles of law, and was able to show that she understands them. The Applicant was capable of addressing a court …Given the Applicants good composure in dealing with the issues, her education, her age (44) and maturity (able to manage an office) the Applicant would be able to address the issues and present her own plan of care.” (Mr Justice Dunn in Rhonda Nordlander v. Ministry of Attorney General (Ontario), Dufferin Children’s Aid Society, Office of the Children’s Lawyer, & Richard Nalli, Ontario Court of Justice September 23, 2013)
Two weeks ago, Rhonda Nordlander paid a high price for her effectiveness in representing herself. Justice Dunn described Rhonda’s capability as a factor in his decision not to award her state aid for a lawyer.
To his credit, Justice Dunn accepted the reality that Rhonda could not afford a lawyer. “I agree that on her own the Applicant would likely not be able to finance a lawyer.” But now a new burden appears – apparently to qualify for state aid she has to also show that she is not able to effectively represent herself. At the same time as she is trying to frame and present her arguments as effectively and credibly as possible to the court. Placing Rhonda between the proverbial rock and a hard place.
The second hard reality shaping the SRL experience that Justice Dunn may not fully appreciate is the hundreds of hours of work that Rhonda – and other family SRL’s like her – put into preparing and presenting their cases, at the same time as holding down a job and dealing with difficult family transitions. Moreover Rhonda, like many other SRL’s (53% in my study), has already expended all her available funds on a lawyer and a custody assessment (a total of $40,000).
The other piece that the courts are missing is an appreciation of the emotional toll of presenting your own case and the immense difficulty of being solely responsible for advocating for yourself in a stressful personal situation. The lawyer self-reps in my study described how much more difficult it was for them to present their own matter – however “intelligent and articulate” and knowledgeable they were – when it was a matter of such personal import to them.
3. “This point that I am about to make is a very important rationale for my decision. Even if there were to be an order for state funded financing, the Applicant would have a very difficult job finding a lawyer to take the case. ….I believe that the delay in finding a lawyer acceptable to the Applicant and for that lawyer to come up to speed will cause delays that are unnecessary when the Applicant is capable of representing herself.” (Mr Justice Dunn in Nordlander v. MAG (Ontario).
A third reality shaping the SRL experience, recognized by both SRL’s and lawyers, is that once an individual has represented themselves, counsel is leery of taking their case on. They are concerned about what has already been done, mistakes that may have been made, and the volume of litigation materials amassed to date. Lawyers also worry that a SRL in self-help mode will not adapt easily to having a lawyer work on their file, and insofar as many lawyers continue to adopt the traditional “lawyer-in-charge” model, they are probably correct about this.
So Justice Dunn is absolutely right in identifying the problem of potential delay in finding counsel to work on Rhonda’s case (although at least three lawyers have already helped Rhonda pro bono, evidence of the commitment of some members of the profession to access to justice). But it is illogical and unfair to penalize her for this. Should the justice system not be concerned that lawyers are turning away clients even when they can pay – with state aid, or at least for unbundled or limited scope services? If more and more people try to represent themselves before turning to a lawyer to help them, shouldn’t we be adjusting to this reality and finding ways to support and facilitate lawyers to help these clients, rather than passively accepting it?
Rhonda’s case exposes the paradoxes that are being created by the emerging recognition that many Canadians cannot afford – and when they have already tried to represent themselves or are looking for limited services cannot find – a lawyer to help them. Instead, they are doing their very best – often creditably – to represent themselves. Now – as in Rhonda’s case – they may find this held against them.
Can we change these three realities?
