2 First Steps for Lawyers Facing the Crisis in Access to Justice

2 First Steps for Lawyers Facing the Crisis in Access to Justice

The legal profession is facing many challenges, and this blog is dedicated to just one of them –the volume of people who now represent themselves (SRLs).

Every week, I meet more and more people in the profession who are thinking and working hard to respond to the access to justice crisis that self-representation both creates and reflects.

But I also encounter some who are clinging to nostalgia for how things used to be, when almost everyone who came to court had a lawyer and (for the most part) accepted their wisdom unquestionably.

Here are two suggested first steps to inform you in adjusting to the new reality.

Two first steps that will place you on top of, rather than underneath, the wave of SRLs breaking on the courts. And enable you to respond intelligently, realistically and creatively to change.

The new reality

Those coming to family and first instance civil court without a lawyer has leapt from single digit percentages 25 years ago to over 80% in some family courts. SRLs now outnumber represented litigants in most urban family courts.

Most of these SRLs would value – putting it mildly – the assistance of a good lawyer, but they cannot afford one.

They want lawyers who will offer them legal services in an affordable model, and treat them as a partner instead of expecting (or requiring) deference, obedience, and passivity. Many clients can and want to do some of the work on their case themselves. Smart, proactive lawyers recognized this some time ago.

SRLs –  aka the public – want lawyers to demonstrate that they share the public’s belief in the administration of justice. This means taking some responsibility for ensuring access to justice. Not just the “theoretical opportunity of access to justice” – as a middle-class, well-educated, older SRL put it to me this week – “but actual, real access. Participation in a real, fair way. That’s different from simple access.”

The legal profession can begin to meet this challenge, both individually and as a profession, in a few simple ways. Some of you already know this. If not, please read on.

1.            Complexify your ideas about who SRLs are

25 years ago you may have quite reasonably assumed that the occasional SRL you encountered in family or civil court was someone who had “fired” his lawyer (ie acted unreasonably and probably irrationally), and/or a lawyer wannabe, and/or someone with a mental illness.

Those of you who have joined the profession in more recent times, likely no one warned you about the tsunami of SRLs you would encounter when you went to family or civil or even appeal court. You may have unthinkingly adopted the assumptions of your senior colleagues.

It is simply not credible to apply this crude stereotype to the 75% of those who file without representation (and more will be unrepresented by the time of a hearing) in Jarvis or Sheppard’s family courts. Or the 55% in Stratford. Or the 45% in Kingston. Or the 46% in Calgary.

Think about it – if the stereotype were accurate, we would be facing a significant public mental health crisis, as well as an extraordinarily badly behaved generation of clients, apparently addicted to stress-filled DIY lawyering that frequently overwhelms them.

SRLs today are mostly just desperate. They cannot afford or continue to afford expert advocates. As one SRL told me “I remember thinking to myself – do these people (the court clerks, the judge, the lawyer on the other side) imagine that I am enjoying this? I am here because I have no other option. I am just a mom, trying to figure this out… it is so complex, daunting, intimidating.”

It’s true that the idea of representing yourself no longer seems so far out to many of those facing court without a lawyer. There is so much more material out there on the Internet. The self-help culture suggests they should have a go, why not?

This optimism, if it flickers at the start, is soon extinguished as they wade into the morass of the justice system. As one (middle-class, educated) SRL told a lawyer’s conference this week: “It (the justice system) feels like it’s a fortress, and I don’t have a battering ram.”

This story is not only about marginalized, vulnerable individuals – although it is often about those who already suffer prejudice and hardship and who come to self-representation with additional disadvantages. But this too is a crude and limited stereotype of today’s SRLs.

My own research and that of others now shows consistently that SRLs come from the middle and upper-middle class as well as those barely above the poverty line. 50% of my study sample was university educated (slightly higher than the general population for this age group, according to Stats Can). This serves as a reminder that many people with less education do not even attempt to bring their claims to court or defend an action brought against them.

The access to justice crisis now includes those who never expected to find themselves in court – and, what is more, without a lawyer, overwhelmed by the obstacles of navigating the justice system alone. In family court and often in civil, they are facing major life transitions, often with little support.

Informing yourself about this new reality enables you to properly appreciate the diversity of those whom you will meet as SRLs (including those who ask you for unbundled services). Heck, many of them are just like you (intelligent, informed, trying to make a good living, dealing with life crises as best they can). Cute case in point – one of the SRLs at the Dialogue Event last May turned out to be the childhood babysitter of one of the provincial Directors of Legal Aid invited to attend.

2.            Remember why people go to court (your clients included)

Some members of the profession seem continually drawn back to a simplistic and crude stereotype of SRLs as a hapless army of incompetent fools (at best), who are (more-or-less intentionally) creating chaos in the courts for those of us for whom this is our real job.

On the contrary, my data – 600 plus pages of transcripts of in-depth interviews with 259 SRLs – shows that the majority are trying (often unsuccessfully, but trying) to do the very best they can against almost impossible odds.

If you are still skeptical, and would like a personal introduction to one or more of these individuals, please contact our SRL Speaker’s Bank via www.representing-yourself.com.

Most SRLs keep going because they feel that they have no choice. Give up custody? Access? Support? On an employment future? On creditors? Put yourself in their shoes (and remember – above – they are not so unlike you. In fact my sample included six lawyer SRLs).

However, the stereotype that SRLs and our own clients are two different species persists. This week I was asked repeatedly at a lawyers’ conference – why should the profession care about (implication, those pesky) SRLs if they don’t have a “…reasonable change of success, objectively?”

This question is only important if lawyers believe that the justice system we are committed to supporting and defending should in fact be accessible only to those who have lawyers who say that their client has a reasonable chance of success.

Which turns out to be, well… most of them actually.

This question appears to assume that a represented client – who is far less “visible” to opposing counsel and judges than a SRL – is inherently more reasonable and rational than a SRL. This further assumes that their lawyers can manage their clients’ expectations in a way that eliminates unreasonable demands or irrational decisions (not so easy). While having an expert advocate in your corner should help to tamp down natural impulses towards reactivity and defensiveness, both represented and unrepresented people struggle with these consequences of conflict. So would we.

Perhaps more importantly, the question also assumes that SRLs should or do know when their case has no reasonable chance of success. This is completely illogical, because the profession lays claim to being the only source for such an assessment. How else are they supposed to know whether to proceed with their dispute? As one lawyer SRL put it, “If you have no way of knowing whether you are being reasonable or unreasonable unless you talk to a lawyer, which will bankrupt you – then what’s the answer?”

Ultimately the question of whether SRLs deserve our serious attention only if they have a  “…reasonable change of success” is only important if we are ready to give up on access to the legal system for anything but a shrinking number of people.

Resist the stereotype, complexify your thinking

The biggest damage caused by stereotypes is that they make us less intelligent when it comes to trying to create solutions to difficult problems. The SRL stereotype is a highly seductive one. Stereotypes allow us to fall back on the comfort of believing that the problem we see out there is the fault of another group – here the SRLs who are causing the crisis in our courts – and that we don’t have to feel or take responsibility.

The legal profession is full of good, hardworking, competent and dedicated people who see this perspective for what it really is – avoiding facing the problem.

Adaptation of our models of legal services to the changed consumer perspective, both corporate and personal, is going to be difficult and complex. But I believe that with inspirational leadership, critical reflection, and creative and courageous innovation and experimentation, the public can have a legal profession that meets all its extraordinarily diverse needs.

Whatever work we do, we should care about and cannot give up on access to justice

Take these two first steps and the next time you encounter, or talk about, or even think about a SRL – complexify your thinking.

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