Finally, Canadian Data on Case Outcomes: SRL vs. Represented PartiesNSRLP
For the past three years, ever since the publication of the National SRL Study, I have been regularly asked about the impact self-representation has on case outcomes.
The original study focused on understanding the motivations, experience sand impact of self-representation. The majority (75%) of those interviewed were SRLs with cases still in progress. The remaining 25% were not asked about their outcomes directly, and few talked about it (this may surprise you, but the transcripts show this clearly).
Instead, they wanted to talk about just how awful the process of representing themselves was. This reinforces what we know about the importance of procedural justice (Tyler, Lind and others): the strength of litigants’ feelings about the fairness and integrity of the process often outweighs feelings about the distributive outcome, which they usually accept whether favorable or not?
How well or poorly do SRLs fare in court?
That said, outcomes for represented versus self-represented parties are a crucial consideration for Access to Justice.
If, as we have always suspected (and this is bolstered by some small-volume US studies in the last few years) your chances of success are automatically lowered if you represent yourself, what does this mean within a system where most litigants can no longer afford to pay for full representation? In which many cases now match one represented party against one without counsel?
Last year NSRLP published our research on summary judgments. It showed that in cases where a SRL faces a motion for summary judgment brought by a represented party, 95% will have their cases dismissed.
But this NSRLP effort with its narrow focus on summary judgments holds a small fraction of the metrics waiting to be uncovered. The following tool can provide much more detailed analysis of a SRL’s chances of success.
Announcing our first Canadian SRL outcomes data
Thanks to the work of a new start-up, Loom Analytics, I can today begin to present some Canadian data on case outcomes for SRLs.
Loom Analytics (loomanalytics.com) is a legal analytics company based in Toronto that provides detailed information on Canadian legal decisions reported in Can Lll. Their ultimate goal is retrospectively analyze decisions going back 20 years for all court levels, except for the Supreme Court of Canada, for which they intend to go back 50 years. To date, they have focused on analyzing Ontario cases – in the next few months they will be moving on to BC and Alberta.
Thus far, Loom Analytics has provided NSRLP with outcome details for cases where one side was represented by counsel and the other side was self-represented, decided in the Ontario Superior Court between January 1, 2012 and April 7, 2016 – a snapshot of the last 52 months.
The complete table of results – showing SRL wins, losses, split decisions and cases in which no orders were made – is included at the end of this blog. It shows just what you would expect – SRLs do not fare well against represented parties.
No big surprise there – you would assume of course that legal counsel would do a better job than someone without legal training trying to present their own case (and emotionally invested in the outcome).
Questions for Access to Justice
However logical this result, there are important Access to Justice questions here. They can be summarized as: just how bad is this, and what does it mean?
- Just how stacked is the deck here? Our summary judgment data showed a 96% success rate against SRLs. The new data reported here shows a SRL success rate of just 12.5% for motions and applications (higher for trials; see below).
- Are good arguments by SRLs being pushed aside by procedural mistakes? Or overlooked because of the presumption of some judicial officers that SRLs are not worth listening to? Or because of the privilege (to be heard and taken seriously) asserted by legal counsel on the other side?
I am not arguing that the quantitative data answers these questions – but it certainly raises them. To answer them definitively we need a lot more information about the individual cases. But there are some clear patterns that require our consideration.
Highlights of the data
Almost three quarters – 73% of SRLs who participated in hearings during this time (1192 in total) – lost. Just 14% actually won (the remainder were split decisions or no order).
But when you look a little deeper, there are some interesting differences among SRL experiences.
- 25% of SRLs won at trial.
That figure is quite surprising, and suggests that SRLs who make it to trial acquit themselves well. As Mona Datt of Loom Analytics put it to me: “Basically, if an SRL actually makes it to trial, that probably means they’re better than average at navigating the legal system. This would explain the (relatively) high trial win rate.”
At minimum, it reinforces our data on how hard SRLs work to be ready for court. Someone who can win at trial against seasoned legal counsel should feel pretty proud – and they must have a good legal argument.
This may also mean that when a trial judge gets to thoroughly review the arguments being brought forward by a SRL – since time in trial is always several multipliers longer than the time spent on hearing a motion or an application – then it is more likely that they may see value in what the SRL is arguing. In contrast, SRLs complain that sometimes the judge at an interim hearing has not read their materials beforehand (often very difficult given the judicial schedule) and appears to them to be only minimally interested in understanding their case.
- 12.5% of SRLs won in motions court, and the same percentage won on an application.
Also interesting. This is half the success rate of SRLs at trial, a significant difference. Does that mean that SRLs have worse legal arguments in motions hearings or when they bring applications, than they do at trial? Or is something else going on to explain this discrepancy?
Motions require a high level of procedural knowledge, and SRLs are often overwhelmed. An example:
“The plaintiff represents himself in this proceeding which he has turned into a procedural quagmire. He has done so by issuing “parallel” claims and seeking to have one claim stayed; purporting to amend a notice of motion to claim different relief following a ruling that disposed of the original motion; delivering notice that he abandons his amended motion and then rescinding that notice when he realized the cost consequences; seeking leave to amend his statement of claim without providing a proposed draft of the amended pleading…” (Gravelle v. A-1 Security Manufacturing Corp., 2016 ONSC 935)
From our constant conversations with SRLs we also know that some SRLs find themselves responding to a motion – such as for summary judgment – without any real idea of what is going on (“What’s a motion anyway? Is this the trial?”).
It may be that SRLs are losing motions because they are making procedural mistakes, rather than on the merits of their arguments. If so, this is a big issue for Access for Justice.
More data to come
Over the next few months, I shall be sharing more of Loom Analytics data (including data about how individual judges decided SRL cases). I hope that we can have a vigorous and better-informed debate about how the justice system is treating SRLs.
SRL versus Represented Party outcomes, Ontario Superior Court Jan 2012-April 2016
Prepared by Loom Analytics