Let’s Put that Pesky Medical Analogy to Rest

I have been struck by how frequently – in discussions with lawyers and others, in on-line comments on articles, on our project Facebook page (http://www.facebook.com/pages/Representing-yourself-in-a-legal-action/285291868160529) – we see a statement like this: “I wouldn’t take out my own appendix/ do my own brain surgery/ install my own pacemaker etc – so why would anyone think they could be their own lawyer without proper training?”

Fair question, at first glance – until we peel back the layers of complexity that are are driving the phenomenal rise in the numbers of self-represented litigants. For a start, the vast majority of those I am interviewing are not confident that they “should” be doing their own legal work, and many express profound anxiety, fear and intimidation at the idea. After embarking on self representation, many advise others that their should avoid this experience if they possibly can – – by either settling out of court or finding a way – some way – to afford a lawyer.

The problem? Most of the people I am interviewing either cannot afford a retainer (a minimum of several thousand dollars) or have already spent their savings/ extended their available credit on legal help and still have no resolution. The few who are a little more confident have been turned off lawyers as a result of past experiences and no longer feel they can trust anyone else to handle their case.

There are many ways in which the medical analogy breaks down, including the fact that legal and medical expertise represent entirely different fields of professional assistance, techniques and processes. But the most striking nonsense about the analogy is that in Canada, we do not pay to see a doctor or to undergo medical treatment. On the other hand, Free legal advice services are extremely limited. Deciding to go to a specialist for a medical fiagnosis (rather than performing our own surgery) does not require payment of a $10,000 retainer nor a $300-500 hourly fee.  Perhaps the medical analogy works better south of the border – but in a public health system? Hardly.

More relevant is to consider the way in which medical practice has been affected by access to the Internet, just as legal practice has. I was in Poland a few weeks ago and was told about a new study that showed that 50% of Poles had already googled their health problem before they went to a doctor, and understood themselves to be seeking a prescription, not a diagnosis. I imagine this is no different here in Canada.

So the next time someone asks “why would you represent yourself in court when you wouldn’t remove your own appendix?” perhaps we should remind them that access to lawyers offering commercial services is not the same as access to public health.

Self reps are not being arrogant or stupid when they choose to do their own legal work – they are making a rational (albeit difficult) choice with limited personal resources. Many step up to this challenge with courage and tenacity. Let’s not put them down by this flawed analogy.