This week’s guest blog is written by Tania Perlin B.A., L.L.B. from the law firm of Tania Perlin, Barrister & Solicitor. Ms. Perlin is also a certified Mediator with the Ontario Mandatory Mediation Program, a public speaker, and an instructor of Business Law at Ryerson University.
I have practiced law for over 25 years. I come from a long line of lawyers originally from Eastern Europe – my great grandfather and his brothers had a law firm that assisted clients of all socioeconomic levels. At times, they would get paid with poultry, since their clients could not afford to pay with cash.
I became a lawyer because I felt that I could make a difference. I was not thinking of becoming rich or famous – I just wanted to become a person who could help others through my knowledge and understanding of both the law and human nature.
I believed then and now that the legal profession is one of integrity, wisdom, and advocacy, and that it provides a service to clients that is not easily replaceable.
I have also seen the world from the other side of the legal desk. I have been a litigant in a very complex case where I was an involuntary participant and had to do everything possible to protect myself and my children, in order to get my life back.
I have advocated for Access to Justice and a more streamlined system, and continue to do so at every opportunity.
The “end” of lawyers?
When I read posts or articles from SRLs who are advocating for the “end” of lawyers, I feel very concerned. The major reason behind this advocacy is that lawyers cost a great deal of money and in most cases, at some point, the litigants cannot afford to proceed with the case unless they go forward without a lawyer.
In my view, this bypasses other parts of the problem. While research shows that the single most important reason for self-representation is lack of funds, there are others. In my view, it’s a myriad of things, including a complicated court process which sometimes requires a PhD-level reading capacity just to file documents; a system that allows filing of unnecessary motions as “strategy” (for the sole purpose of depleting the other side’s funds); and the use of different judges at various stages of the litigation who often render different orders, thereby requiring litigants to return to court numerous times.
In my experience as both a litigant and a lawyer, there have been numerous instances where lawyers filed motions in order to deplete the other side’s funds, yet the judge did not penalize this behavior. I also came across cases which became so protracted and convoluted that judges were unable to get the whole picture and bring the matter to an end.
In my own matter
Despite being a lawyer, I did not initially represent myself. However, I did become a self-represented litigant because I had the misfortune to encounter lawyers who, in my view, did not measure up to the standard I expected. As an SRL, I directly experienced the psychological toll of representing myself in court, where my own stake in the outcome prevented even a lawyer from making strong, objective arguments devoid of emotional content.
That is why I am writing today, because I have seen both the good and bad in legal practice. I can still tell you that I believe there are many more good lawyers out there than bad, those whose wisdom and knowledge is truly a necessity in order to be successful in your case.
I eventually found a wonderful lawyer who represented my interests, and led me out of the darkness of litigation into resolution, finality, and closure.
We need system change
There are numerous reports (for example here and here) which provide excellent recommendations about streamlining the justice system. The problem is, reports and research projects are theoretical, and there is a lag in seeing these recommendations actually carried out and put into practice. While there are many reasons for this, including the reluctance of the legal culture to face change, one of the most significant is cost. It seems that neither the federal nor provincial governments currently prioritize finding the resources to make necessary changes in order that the legal process can be more accessible, easier to understand, and less costly.
Simple and critical reforms include opening more courtrooms and for additional hours daily in order to reduce long wait times; appointing a case management judge in each matter who will monitor the case and ensure that one party does not “motion the other party to death”; ensuring that lawyers do not engage in unprofessional behavior and practice, and live up to their professional responsibility to act in the best interests of the client; and hiring a sufficient number of judges (there are many judicial vacancies in Ontario) to realistically handle the volume of cases.
From my years of experience, I believe that the percentage of lawyers who may be involved in shoddy practice is actually very small. We hear a lot about them, because their unfortunate behavior creates shock waves which ripple throughout the profession and the public.
On the flip side, there are really good lawyers, who care about their clients, practice in a professional and respectful way, and are not out to just make a buck. We all need to spread the word when we meet such lawyers, so that the profession gets at least a fighting chance to show that it’s still one of integrity and honor.
In my view, the fact that a layperson is able, with a great deal of time and work, to prepare a factum or motion record, does not really mean that lawyers should be replaced. Lawyers go through rigorous training. By the second year of law school, they are already thinking about legal problems in a very different way than the majority of the public. They are taught to analyze cases, to see through the forest of facts and issues in order to present the case in a succinct and understandable way, while at the same time ensuring that their clients’ interests are protected and their concerns heard.
This is no easy feat, yet most lawyers accomplish this every day.
I know that it’s hard to believe when one is in the bowels of litigation that it will ever end, and easy to believe that it’s the lawyer and their fees creating all the hardships litigants encounter. However, having been on both sides of the litigation process, I believe that many flaws in legal practice are a result of a complex and archaic system that is desperately failing litigants and Access to Justice.
You do not need to be a PhD, you have to be a psychopath.
I have the experience of 5 lawyers in my divorce case whose fees ranged from $250 to $800 per hour. None of them struck me as particularly bright or capable; not one exhibited any capacity to think outside the box in terms of either settlement or strategy; they were cookie cutters in thought and process who wasted my money on foolish arguments and tactics with opposing counsel when they knew there would be no resolution. It took me 3 years and about $75,000 to figure this out. But I also got a mini-law degree during that time from the first-hand screw-ups and deceits these lawyers practiced.
Then I went solo, and I have beaten a $500/hour lawyer twice now, on trumped up contempt charges, charges only intended to harass and exhaust me financially, mentally and emotionally. The lawyer should be disbarred for this nonsense that she calls “strategy” but the courts love this skulduggery; it’s what the law is really all about: who is the better shyster.
But what do the lawyers care . . . it was my money and my life that was being sacrificed to their profit and pocketbooks. Even now, my ex-spouse continues to persecute me–with the help of this unscrupulous lawyer–dragging me before a judge who doesn’t penalize him or the lawyer but who simply turns them away, defeated. Meantime, I am in hell, forced to spend hundreds of hours to produce affidavits and evidence, and I cannot even bill for it.
Something must change, and I think we could do worse than stop using lawyers.
You wrote: ” lawyers cost a great deal of money and in most cases, at some point, the litigants cannot afford to proceed with the case unless they go forward without a lawyer.”
YES – in MOST cases litigants cannot afford to proceed.
Cases where your rights, life, family … are at stake.
Plain and obviously we need a better system.
Plain and obviously this system does not serve.
This system is exactly like ALL dinosaur systems – the body growing bigger and bigger and less and less efficient.
NOBODY in their right mind likes using this system – except those who profit from it.
Awesome article. – Honesty is the best policy Tania. Thank you for your support by writing this article as I had similar experience. Keep up the good work
Interesting article, thanks for the insights!
I would suggest however that you were not an SRL, despite representing yourself. As a self-represented lawyer, as opposed to litigant, non-lawyer, I’m going to out on a limb and suggest, your evidence was considered and your arguments in law were also considered. Wondering further out on that limb, I would suggest you were permitted motions for relief and you were not hit with costs, for bringing a motion in writing, especially if the case management specifically said you could.
While I’m sure you encountered the same person problems and stresses of being personally invested and that toll, you understood the rules, regulations, procedures and, while similar, respectfully you were treated like a lawyer, representing yourself.
If lawyers weren’t financially rewarded based on how many hours or years they’re able to keep an action dragging on, they’d likely be shorter.
Lastly, I suggest, if the good, honest, hard-working lawyers don’t want to be painted with the same brush as the others, you should clean up your house, it’s not fair to let your members harm the public, with relative impunity for their actions.
Great of you to speak up for yourself and your profession. There is however the grey area. The LSUC entertains thousands of complaints every year concerning a variety of ethical misgivings by lawyers. A very small percentage of those complaints ever result in anything more than a blemish on the licensed professional record. And, to be fair, in some cases these complaints may not be warranted. Further streamlining the system may help to some extent, but Vexatious delay tactics, intentional abuse of process, methodically designed to wear down and bleed one side should be abolished or have a severe penalty. In the early days of lawyers, yes, there were some monetary payments by litigants that required representation a chicken or two. But present law sees a band of lawyers that all respect their inviable bond and credo which is: no $ no justice. Which translates and boils down to limited access to justice.
For litigants seeking custody of children the situation against a reprrsented spouse is hugely lop sided. Not having the $ to retain a lawyer must be hell. For litigants seeking damages with potential outcome, both sides rub their hands together and start the ‘bill meter’. This too is another hell. In both situations, he who has representation is most likely to achieve the best outcome.
Yes there are some good lawyers in this country and yes there are some positive outcomes for a small percentage of cases with merit.
But isn’t it so very very sad that law is a business and a game of sport where the injured parties the pawns.
The system is designed for adversity-creation where there was none or where there was no need to develop adversity in the first place. War-mongering, even at the court level, is a factor of DNA.
If you have no skills other than to cause trouble between people so that you can profit from other’s pain, then you have to cause trouble where there is none in order to make a living.
Wonderful lawyers cost money so only those with long pockets can afford them and those are few and far between.
I had a judge punish me severely on the mistaken assumption that all those pointless motions and applications were my doing when they were the work of the horrible, predatory an dun-professional lawyers I encountered. The fact that I was doing pretty decently against them made this judge even more convinced I was the culprit so I know exactly what this writer means by saying the case became so twisted that the judge has the time of his/her life figuring it out. This is the case too often and in such instances the judge jumps to the weakest side (SRL’s) and uses the easiest word-“dismissed”. it only takes one judge to say dismiss then all others will follow like sheep. We really do not have any system of appeal in this country.
Suggestions for reform are great ones BUT we need more than anything else to get rid of injudicious judges and ensure those of that ilk never set foot on our Bench. They make the ills of our justice system UN-BEARABLE
I think that we have to accept that as long as the corrupt government gets to appoint its favorite corrupt people into positions of such power, there is no hope whatever.
dont worry some day GOD will work it all out-type in”25 reasons most attorneys hate the practice of law and go crazy”-they dont get away with it-but nor do we get compensated for our loss.
There is a reason why all this happens and we wont find out until after our deaths why.
there doesnt need to be an end to lawyers-just corrupt ones.
you’ll forgive me for saying so,, but this sounds more like,, it’s not us,,, it’s only some of us. Those who witnessed sharp practice, and said nothing,, are also included, Judges who allowed this behavior in their courts are just as guilty, Court clerks who transfer files to other districts without notifying both parties, Who refuse to accept filings, Who create reasons why the self represented cannot file or access their file, honestly, There is so much corruption, that just claiming it is a few bad lawyers is just laughable, If we need lawyers, and the courts adamantly insist on it,, then they can provide them, If the system is riddled with corruption,, it is up to the system to correct their mistakes, and set up a system that better serves the public, honestly and transparently, No more games, I for one, am just sick of it,
I must respectfully disagree with counsel. Sir Thomas More would likely have as well.
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It is for instance difficult to reconcile the arguments made in this article, in and of themselves. It says “there have been numerous instances where lawyers filed motions in order to deplete the other side’s funds” and yet claims a belief “that the percentage of lawyers who may be involved in shoddy practice is actually very small”.
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In any event, lawyers per se are not the real problem as the article in part describes. The real problem is the lawyers who become judges. The law and its administration therefore is overseen by those with a perspective you must be a lawyer to understand and argue the law (even though in law everyone is expected to know the law intimately). Judges respect the lawyers who are their peers, and often their drinking companions. They do not respect those who would take work away from these friends (and their own children in many cases), so SRLs suffer purposefully to drive home the point they are not welcome. We get it – don’t think for a moment we are oblivious.
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We are simply living in the legal dark ages. The church was also all powerful at one point because how else were you going to get into heaven, but by having learned, robed priests translate and interpret obscure text in exchange for a substantial tithe. Yet, where there is a god and a true system of justice, both will come to the fore in spite of suppression by those who wish to gain from unnaturally interposing themselves.
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Consider the utopia of Sir Thomas More: http://www.bl.uk/learning/histcitizen/21cc/utopia/more1/laws1/laws.html
Well said. It is NOT about the law. The Supreme Court of Canada just condoned two levels of court actually changing legislation to suit their world views by dismissing an application for leave to appeal. No kidding. The lower courts added words that were not there and ignored clearly written terms that were, just because they didn’t agree with the legislation.
You can bring the most perfectly drafted document with all the case law properly set out and the Judges will not read it… I can prove that. You can have a witness testify that the defendant’s lawyer called him the night before he was to testify and warn him not to testify truthfully, and the Judge dismisses the testimony as ‘the witness is not a shrinking violet’. Every court after that condoned this, amongst other failures/errors.
And Sandra was correct, once a lower court judge dismisses your claim, the appellate courts simply rubber stamp as dismissed without honest review…I can prove that too.
And I add, we need common law courts where lawyers AND judges will be hauled up for their behavior before real human beings, and we need elected judges. If you need to hire a lawyer at 90 times the hourly rate you earn, then its not a justice system, its a commercial system.
I also had to get a justice for case management . The Judge always help out the Lawyer & always punished me for bring up the lawyers failings , with applications , affidavit , briefs etc. Always extra costs 6 to 8 months delay in between case management date, A total abuse of the system by the Lawyer & judge. Then I made a complaint to the Associate Chief Justice in Alberta & the CJC & the next thing you know I am declared a vexatious litigant . see what I mean . http://alberta.newjusticeforthepeople.com/supreme-court-of-canada/
DT, by Associate Chief Justice in Alberta, do you mean that OPCA man Rooke? My case got sent to JDR and it is quite a challenge to get assigned because as soon as the list gets posted the judges get assigned like within a day and the other option is to ask the associate CJ who is always available BUT I would never go to OPCA man. The other day I thought out loud but this man’s presence is an access to justice issue. It is just not fair. He needs to go!
Had it been when the other CJ was in office I would have gone to him already
Those who make peaceful revolution impossible will make violent revolution inevitable. – JFKennedy
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The arguments advocating for the “end” of lawyers are a reaction to the legal system’s resistance to change. People have been calling for reform of legal system for years and have been ignored. After years of inaction, the calls for reform are getting more radical, including calls to completely overturn the existing system.
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The courts, judges, lawyers and law societies have had little incentive to address the problems because the system ‘works’ for them. By contrast, litigation is a black hole for money for Joe or Jane Average. Consider two of the issues raised in this blog:-
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1. It ’sometimes requires a PhD-level reading capacity just to file documents’.
This is true but it means that something is seriously wrong. Directions for filing documents should be something which can be described in plain English, or French, with a minimum of jargon- (we aren’t talking about a detailed technical description of the operation of cyclotron). However, the status quo actively benefits lawyers. Lawyers will be paid $200-$500 per hour to file the documents so streamlining the process won’t be a priority for them.
There is also no downside for the courts; they get their documents the way they have always had them- with no need to adjust to a new system.
On the flip side, Joe or Jane Average get stuck with the bill.
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2. Lawyers file ‘unnecessary motions as “strategy” for the sole purpose of depleting the other side’s funds’.
The ‘outspend to victory’ tactic seems to be a common legal ploy. The lawyers benefit because they collect their fees for all the extra ‘work’.
When the tactic succeeds, it reduces the case load for the courts. It is a Win-Win for the lawyers and the courts.
Once again, Joe and Jane Average get stuck with the bill. (And, if they complain to the Law Society about unprofessional conduct, the LSO will advise that this is zealous advocacy and dismiss the complaint.)
The combination of system complexity and the sharp legal practices means that many people run out of money and have to represent themselves. When that is the end point, is it any wonder that these people are questioning the need to first go through the step of buying lawyers a swimming pool?
It is impossible for a self-regulating commercial system, where the victims are easy prey, to work for anyone but the business.
. While Ms. Perlin’s belief in what she states in this blog post is clearly genuine, people can convince themselves of all sorts of things. It is obviously an incredible statement for a lawyer to take the position we need lawyers. A rational person would discount this based on common sense.
. If the legal profession wants to take a real look at its culture, the starting point has to be based on the work of people like Dan Ariely. He authored “The Honest Truth About Dishonesty: How we Lie to Everyone – Especially Ourselves”. Undoubtedly there are honest people in the legal profession who don’t even realize they are being unwittingly dishonest. They presume what they are doing is right, justified, or ordinary practice. They need a catalyst to become aware of their behaviours and tendencies.
. Read the book (or watch the movie of the same name) to understand how you need to rethink what deceptions each of us is capable of that harm ourselves and others. If you don’t think this applies to you, then congratulations – you are deceiving yourself.