This article was originally published on August 18, 2020 by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.
Cassandra Richards works and researches in criminal law and access to justice. She would love to hear from other educators about how they integrate self-representation into their course curriculum. The views expressed are only those of the author in her personal capacity. Follow her on Twitter at twitter.com/crich114.
Cassandra Richards
Self-represented litigants (SRLs) are a growing phenomenon. The high costs of hiring a lawyer and the inadequacy of legal aid mean that many have no choice but to handle their case without the assistance of a lawyer. As a legal community we are acutely aware of this, yet legal education has largely excluded this occurrence as an area of study.
However, law schools are not the only legal actors failing to consider self-representation. As a legal profession we largely ignore the many SRLs filling our courtrooms. They aren’t going to pay the bills, they aren’t our client, so we see the plight of SRLs as outside of our responsibilities. For many lawyers, self-representation only comes to mind once they oppose an SRL in court.
Law school curricula teach about the legal system mainly through the perspective of a lawyer or judge, but these are not the only actors in the courtroom. Law students must learn about another important actor in the legal system, SRLs. Our courts and our profession are changing. If we want law students to be equipped to respond to the actual realities of our courtroom and the needs of those who use them, they must learn about self-representation.
Professor Julie Macfarlane of the University of Windsor Faculty of Law has long called on law schools to take access to justice seriously, which requires teaching about self-representation and the ways to address it. She insists that: “No amount of progressive rights in any [area of law taught to law students] is meaningful unless we can first accept that the majority of people can no longer afford lawyers — and that other forms of assistance are severely restricted by the monopoly privilege of the profession.”
I echo this call to action. Given the complexity and adversarial nature of our legal system, legal assistance is necessary to meaningfully advocate for one’s rights.
Some institutions have taken on the cause. This past spring I created and taught a course at McGill’s Faculty of Law on self-representation. Windsor University’s Faculty of Law offers a first-year mandatory course titled “Access to Justice” in which self-representation is often discussed. The faculty also offers a course on legal coaching for SRLs given routinely by lawyer Georgette Makhoul.
Further, professor Richard Devlin at Dalhousie Law School includes a segment on SRLs in an upper year professional responsibility course. These courses must be offered systematically and other law faculties must follow suit.
Evidently, including self-representation in law school curricula has widespread advantages for SRLs. However, aspiring future lawyers and the administration of justice equally benefit.
First, students learn about the SRL phenomenon at a deeper level. They come to understand the multiple and intersecting factors that lead to self-representation and the importance of affordable and accessible legal services. Further, students learn about concrete challenges faced by SRLs in different areas of law, such as criminal, family, immigration and civil cases.
Second, students learn about various models of delivering legal services which promote access to justice for SRLs, while also ensuring the profitability and quality of services rendered. These include, among others, legal coaching, unbundled legal services, limited scope retainers, as well as optimizing on different vertical and horizontal divisions of labour. Students consider the benefits of different practice models in solo, small and large-scale firms.
As more and more people are unable to afford the traditional lawyer-client retainer, students must be equipped to adapt their services to the needs of their future clients.
Third, future lawyers must be properly trained to facilitate a relationship when opposing an SRL. Client management is an ever-increasing challenge, especially when the opposing person is self-represented and therefore without legal knowledge.
This can have vast consequences on the party represented by a lawyer, impacting the quality, time and price of services they are receiving. Students must learn how to create a working relationship with an opposing SRL to benefit their client, the opposing SRL and their own practice.
Fourth, students are exposed to routine ethical and legal challenges that arise when opposing an SRL in and outside of court. For example, how many times should I object to an SRL consistently admitting hearsay evidence on the same issue? It is crucial that students be prepared to respond to these very likely future challenges, which require a delicate balancing of one’s ethical and legal obligations.
While learning about self-representation should begin in law school, it should not end there. Bar societies can offer continuing legal education courses on self-representation to their members. Moreover, judges need to be adequately trained to respond to the needs of those before them. Greater judicial education on this topic and on techniques to facilitate proceedings with SRLs would benefit judges, the parties and the administration of justice alike.
Self-representation is a problem of the legal community that we all need to be preoccupied with and committed to addressing. Law schools have an important role and great potential to effect change. What law schools teach and how they teach it mould future jurists. Self-representation must be considered and discussed from the beginning of one’s introduction to the law in order to make access to justice for all integral to legal culture.
This article is part of a series on self-representation organized by The Lawyer’s Dailyand me. It was inspired by a course given on self-representation at McGill’s Faculty of Law this past spring by Cassandra Richards. This series seeks to bring greater attention to the issue of self-representation in various areas of law from the perspectives of the legal community, notably educators, lawyers and law students.
The second article in the series is: Immigration detention: Lack of legal representation | Madeleine Andrew-Gee; third article: COVID-19 is modernizing courtrooms — but for whom?; fourth: What to think about when thinking about self-represented litigants | Joel Miller.
Further, many articles in this series propose concrete changes that can be brought to our legal system. This series hopes to foster greater dialogue about this important issue and calls on the legal community to take action to improve access to justice for all.
Law schools should offer Courses on the “SRL Phenomenon” but must avoid generalisations for some SRLs are capable of resisting injustice in our courts. Too often the court and lawyer close ranks and form a gang against the SRL: They mock us with, among others, nonsense reasons that not even an ass would accept and often times openly laugh at us (their main tactic -provocation). The other prevailing tactic is the tactic of omission that is used to slander us by among others, twist the facts, twist the law, twist everything including us then use the publication machine (eg. CanLII, Carsewell) provided by our own tax dollars to defame us, spread their hate and breaches our Charter rights, and even criminal acts not to mention betray their oaths as officers of the court (our court). Very importantly lawyers would know their first duty is to the law and justice and that it maybe a big mistake to start off by diggin up SRL’s name , scandalising us with such BS as VLO’s. Rather they’d r know the SRL is actually a person who believes he/she has cause of action is trying to seek justice so it is best for all concerned that they work with the judge in a DIGNIFIED way to convince us we do not have a case rather than provoke us to flood the courts with appeals.
This is a very interesting article. I would presume that many already practising lawyers as well as aspiring lawyers would see value in such offerings by law schools. However, if I was a lawyer, whether having already dealt with SRLs or just anticipating the challenge, I think what I would want to get of most value from such training is how to better ensure that my clients prevail in actions where the other party is self-represented. I would view being able to say that I acted ethically at all times as of secondary importance. Clients have long been told that what they should expect is “zealous advocacy”.
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If some course material exists already and as more is developed I think there might be value in allowing some SRLs to review these materials.
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In an email I sent yesterday I made this comment: ” . . . the law schools could take on the responsibility themselves to see that real, substantive education in how to engage with the legal system is offered to the public. They don’t want to do that because they serve the law societies.” That may seem like a harsh judgment but I think it is fair.
For most people I suspect that becoming an SRL is not something they anticipate so that they can plan and set aside the time to benefit from some training. But there are some experienced SRLs who would see the benefit of such training, especially those who decide to try to assist others. The law societies are opposed to anyone other than their members offering such assistance. And for now they still have the authority granted to them by legislation to prevent what they call “the unauthorized practice of law”.
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No doubt in some, perhaps even many, instances of such assistance being offered, an ill-equipped SRL does not benefit from assistance offered by someone who may not be much more knowledgeable than they are. But some experienced SRLs are both able and motivated to learn how to be of some assistance to others. To date these people have been discouraged from doing so. The legislation could be amended so that such assistance by appropriately motivated and competent people becomes possible.
I am unrepresented due to disability. I used to present as self represented, but could no longer even navigate that. Until lawyers back off from adversarial conduct, no amount of appealing to them to understand self represented litigants will make any difference. Lawyers win against self represented litigants because of the disadvantage it is to lack legal knowledge, and that is an advantage to a lawyer. I have been so disadvantaged in court because even the judge accepts my inability and agrees with the lawyer that, rather than being disabled, I am vexatious.
When the judge sets the tone that a person such as myself has no standing based on another lawyers slander, there will be no change. It is an easy win, period.
But thanks for trying. Sincerely, Lorelei Rogers
Lorelei, I am interested in your experience as a self-represented litigant. You say you lack legal knowledge. What resources had you sought out prior to initiating legal action? Could you provide some examples of mistakes you made and what you did to rectify them?
Hi Mike, the biggest mistake I made was not accepting that I had disability’s. I was a high functioning Administrative Nurse and Care Lead. I wanted my life back. But I was cognitively disabled now and had to make adjustments. Too late.
My fix is to clearly state at my opening, either in court or in submissions, that I am disabled and to please accommodate. Which would include a conversation about what accommodation looks like: 1. No bashing the disabled litigant, be respectful and challenge the evidence, not the SRL;
2. Alternate and simple formatting as I do not understand legal formatting;
3. No legalease, plain language;
4. More time to respond;
5. Expedited and simple process no matter the damages at stake;
6. The judge to fill the gap between disabled and lawyer when reviewing my argument, ie the judge to add any obvious legal arguments I miss because I am not a lawyer.
This is where I would start after all my experiences of being abused in court.
Thank you for the question, thank you for waiting.