Finally, Canadian Data on Case Outcomes: SRL vs. Represented Parties

Finally, Canadian Data on Case Outcomes: SRL vs. Represented Parties

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

All hearings Motions Trials Applications
Total Hearings 1192 989 120 72
Win 163 124 30 9
Loss 865 720 84 56
Split 33 26 3 4
No order 93 80 5 2

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Comments (9)

  • Allen Reply

    A typical case of interest is set to take place in Calgary this Wednesday. A woman is mysteriously sued by her car loan co (after having an accident that lays her up). She surprises by filing a Statement of Defence. Loan co tells her they will not proceed against her. She makes agreement with them to waive some part payment and collect from insurance and is told it is done. Out of the blue she gets notice of application for Summary Judgement (not served properly and has a strange applicant that the Master makes argument for the lawyer and volunteers is just a typographical error. According tot he Court of Queen’s Bench Act the Master can only hear the application if both parties consent and the SRL make sit clear she is declining to give consent. Master lets her know he is hearing it anyways ( this is the norm, at least in Alberta) and I keep asking for a report on court decisions that are unlawful because they are made by someone without jurisdiction to make the order. I know that would be scandalously shocking! This is true even for the Alberta Court of Appeal.

    So back to the SJP application that seems so bogus in the first place. The SRL’s affidavit in response causes the Master to think (apparently) and guess what? The Master adjourns the SJP application and from all appearances he has seized it ( how so?) Master is so interested in this application he asks for a volunteer lawyer for the SRL. This volunteer lawyer stes about to deal with the other lawyer and not get relevant info from the SRL he supposedly represents. Let’s just forget the pathetic actions of the volunteer lawyer and just say he tells her nothing she does not know and horror of horrors confirms what she says that the money was indeed collected from her insurer and now his negotiations requires her to pay even more than already paid as agreed. In other words he negotiates for her to pay more than twice. He does not even know what her affidavit says to the court. I could go on and on but let’s just say I have seen a lot of barefaced robbery in Alberta courts and this one is right up there with the worst of them done in a court room and I am waiting for the rest of the story come this Wednesday.

    i am still asking NSRLP to do a study of the size of the industry monetarily by this means. I think definitely in Alberta this is what is keeping lawyers afloat in Alberta who cannot make their billable hours and would otherwise had had to go plant corn. It should be noted many litigants represented by “lesser lawyers” fare no better than SRLs. I will say again the SRL court room robbery is a major economic industry in Alberta if nowhere else

    April 18, 2016 at 2:38 pm
    • Derek Reply

      I agree with you . It is terrible in Alberta the Judaical system is out of control . check out this website for more proof with court documents and copies of transcripts . Proof of what you are saying is true plus much more . there is lots of examples and opinions on many areas of suing which might help out your friend ; Must check this out !! alberta.newjusticeforthepeople.com . There is contact infromation on this site . Please email me , if we get us all together like some of the farmers did and expose them We will get the change we so desperately need now .

      May 3, 2016 at 2:12 am
      • Allen Reply

        I have been trying to get us all together for a while and even got some people together but I flip flop often because for one thing I shy away from group stuff because some people can get out of control but this is absolutely necessary.

        We will be visiting that web site. Back in February I attended one of the political party conferences and submitted a policy asking for accountability but the gang of lawyers and other wannabees voted down my policy. Then some of them came to me telling me to send it straight to this one and that one.

        What’s going on has to change.

        May 3, 2016 at 10:28 pm
      • Allen Reply

        Derek I see no link to email you on your site.

        May 4, 2016 at 5:08 am
  • sudokutea Reply

    Plain and simple Judges do NOT listen to SRLs
    Judge “why must your wife sue in her name, why do you not sue for her?”
    Another Judge “We all know what the law says, but in the real world…” and disregarded 30 laws being ignored by defendant and lawyer

    April 18, 2016 at 3:43 pm
    • Allen Reply

      These are the kinds of abuses taking place in our courts and I think Alberta is the worst place for that. The judges are barefaced and it hurts when I see any semblance that the SRL issue is anything else than what it is-judicial abuse. Had judges been made accountable we would have very little if any SRL problem

      No one is listening when we say how crooked the lawyers and judge’s are. There is no point for ordinary people to hire lawyers and many of us do not want to hire them for we cannot trust them. They sell us out! One tried to sell me out with a personal injury claim last year. It is past time we get together and file a petition to the Federal government demand that they protect our right

      Like that SRL with the false dementia claim, they did that to my mom and 8 judges sat and pretty much laughed in our faces. The women judges were worse than the men. One female judge found it very funny and smirked when I related how I sexually assaulted at the nursing home that is holding my mom captive. I got restrained by a false vexatious litigant order. Plain and simple we have too many crooks for judges. We should petition the government to hold an inquiry and boot the crooks. Then subject all new judicial appointees to phycho-testing before giving them such powers. Judicial crookedness is bad in Canada and needs to be addressed

      April 28, 2016 at 3:06 pm
  • niclal Reply

    The data and the victims speak for themselves…more disclosure is needed to insure the road to fairness..

    April 18, 2016 at 3:57 pm
  • Robert Newman Reply

    This dramatically understates how well SRL’s actually do. I will use myself as an example. I have never been wrong at any conference, motion or trial. Yet I have only won twice and lost all the other times. I won a contempt of court motion and I won a trial and I have another trial coming up at the end of this year which I completely expect to win. This says more to the complete and utter incompetence of lawyers and judges to make good decisions. It should be pointed out that I made the same arguments at trial that I made through all the case conferences and motions where I lost. The original Judge found in her favour on a contempt of court motion and I just ignored his decision because it was wrong. She brought the same contempt of court motion again and she lost. Now why didn’t you just do the right thing in the first place? With that judgement now in place, this helps me and has no detrimental effect to her. I have analyzed 50 cases because SRL’s have asked me too. I have found that judges and lawyers did the wrong thing 100% of the time. Just remember – just because a Judge does not rule in our favour does not mean we are wrong. At the last trial, she paid a lawyer 17,000 and I had no lawyer so I obviously paid nothing and the judgement was in my favour. Who do you think won? I plan to make a submission to Justice Bonkalo (sp?) to make my recommendations to improve the decision making. First and foremost is to get professional accountants in there to calculate income and thus child support and spousal support correctly. No lawyer or judge has the competence or experience to calculate this properly. I’d like to know – Who thought it was a good idea to have someone with a law degree and an arts degree to make up guidelines for child and spousal support? You might as well say they have no qualifications whatsoever. This is one of the reasons why family court is such a disaster. This post gives the illusion that people should use lawyers when exactly the opposite is true. I challenge any lawyer or any judge to prove me wrong. Just try me and we’ll see who knows more. I’ve already taken down JP Boyd (voted best lawyer by his peers when he was practicing) and Judge Brownstone (the Judge who likes to go on TV and spout nonsense) so you better be prepared for me.

    April 19, 2016 at 9:54 am
  • maria Reply

    Alberta. SLR is forced to use judicial process to clarify his cognitive status. His right to pursue a gainful livelihood is affected by the false statement that a “physician” diagnosed him with dementia. His livelihood depends completely on his cognitive abilities. Because of the statement made by a Public Body that a “physician” made the diagnosis, renders the SLR unable to pursue a gainful livelihood. The physician has denied that he made the diagnosis. Admitted in Court there is NO letter from any physician that diagnoses the SLR with dementia, that letter does not exist. Judge’s decision “diagnosed with dementia is a truthful statement”. Didn’t see that one coming. Everyone’s reaction is: how did that happen? Was told numerous times, had he had a lawyer he would have won. At great cost he hires a lawyer to continue the Appeal the SLR started. Lawyer does not file the Appeal records, no explanation of why he missed the deadline.
    This certainly does not give the perception of a fair and just process.
    Medically never diagnosed with any degenerative cognitive disorder including dementia, legally diagnosed with dementia is a truthful statement.

    April 22, 2016 at 6:36 pm

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