3 Assumptions that are Leading Us Astray

3 Assumptions that are Leading Us Astray

I am grateful for the opportunity to debate “the crisis in Ontario legal services” with Tom Conway, Treasurer of the Law Society of Upper Canada, and Mitch Kowlaski, author of  “Avoiding Extinction: Reimagining Legal Services for the 21st Century”, with a live audience at the Ottawa International Writers Festival on Saturday.

In my presentation, I suggested that there are three (mis)assumptions that are leading us astray in analyzing and addressing the crisis n legal services in Ontario

Assumption 1: Self-represented litigants (SRLs) are Perry Mason wannabes who think they are better off without counsel

SRLs don’t wake up in the morning and think – “I fancy being a brain surgeon/ a rocket scientist/ a lawyer today”.

The reason why they are representing themselves is simple – there is a crisis of affordability of legal services for ordinary Canadians. Most of them are scared to death at the prospect – but feel like they have no choice. The following comment is absolutely typical of many others made by the 259 SRLs in my study:

“Its 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.”

21st century justice consumers – just like consumers in any other professional field – are looking for value for money, or what Richard Susskind, also writing about the need to dramatically change how we deliver legal services, calls “more-for-less” This is not unique to law – the rise of the Internet has transformed the “gatekeeping” of professional know-how, and how we think about “value-for-money”.  As two of my study respondents reflected:

“(Hiring a lawyer) …would be a huge amount of money – and I still might not win. Instead I decided “I can do this. It will be a learning experience – but I am an intelligent person, I can figure this out.”

²“I don’t feel like dropping $12,000 that could be used for my child’s education down the road.”

53% of the sample in my study began with a lawyer, but then ran out of money – many had already spent at least $20,000 on legal costs and some a great deal more. Few ordinary Canadians s can afford this type of unanticipated expenditure.

But do not imagine that this means that SRLs do not want lawyers – far from it – 86% were continuing to search for (affordable) legal advice

Assumption 2: Self-represented litigants are crazy / unreasonable/ set on disrupting the courts and driving up costs

An unhelpful – some would say a self-serving – obsession is developing among some members of the legal profession and judiciary over how to control “vexatious litigants”, and generally how to “protect” lawyers and judges from these individuals. Certainly such controls are important in everyone’s interests – but seeing all SRLs through this lens misses the point here. It also makes the justice system appear unkind and unempathetic. As one – gentle, soft-spoken SRL – told me:

“I was branded as a troublemaker from the moment I walked up to the counter”

The reality – as my study shows – is that most people are not intentionally vexatious or intentionally disruptive – they are just overwhelmed and unable to navigate a complex system. They are working as hard as they can to understand what they are supposed to be doing to meet the expectations of the legal system, without a lawyer.

As one of the lawyer SRL’s in my study acutely points out:

“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?”

Assumption 3:  Lawyers need to direct and control the full extent of every case

The “lawyer-in-charge” model (that I wrote about in “The New Lawyer” in 2008) is by all accounts dead in the water for the general public – for both corporate and personal clients. It no longer works for a public culture that prefers self help, cost-saving approaches that place the consumer at the centre of the action – as a partner, not simply someone who writes the cheques and does what they are told.

Yet some members of the legal profession continue to cling to this model, declaring that they are protecting the public from their own ignorance. This may be a genuine concern – there are complex challenges in changing how we deliver legal services.

We need to recognize that this “explanation” appears to the public – as I believe it did to many who came to listen to our panel in Ottawa on Saturday – to be absurdly self-serving. Why, they ask (as well as the respondents in my study) can’t you offer services on an hourly basis? Answer: because it is better if you pay us a retainer and let us control the file. Why  (ditto) can’t para-legals do family work? Answer: because the legal profession has decided they are not ready yet.

Really, we have to come up with more persuasive arguments than these. Times have changed, and no professional group can reassure the public with “just trust us” anymore.

My critique of the legal profession is a loving one. I believe that lawyers are tremendously important in maintaining fairness and order in a conflicted world. That is why I have helped to educate lawyers for more than 30 years. That is why 86% of my SRL respondents were still looking for legal assistance.

But I believe that this is a critical moment at which we need to do much better than we are at explaining ourselves and our value to the public. The public are the system users – and what is more the huge rise in SRLs means that many are now direct users, with no intermediaries. They have lots to tell us. We need to listen to their needs, explain our concerns clearly, and commit to change.

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