Matt Cohen (Director of Litigation Projects – Pro Bono Ontario)
Making recommendations to improve the justice system is the easy part. The hard part is implementing things in the foreseeable future that will help people who are struggling. The changes below can directly assist SRLs within 1-2 years at low cost.
- Legal opinions for everyone seeking to start a Superior Court action. It can be hard enough to navigate the justice system without an expert agent. It is far worse to have to do so without the benefit of a proper legal opinion. The legal system can be simplified in ways that make it easier for someone to advance their case. However, a person without formal training can’t be expected to decide if they have a good case in the first place. I have limited this suggestion to Superior Court plaintiffs/applicants because we need to start somewhere, the cases are complex, it is logical to start with people who are thinking about suing someone, and it will lead to fewer unmeritorious cases in the system. Depending on the area of law and financial circumstances of the client, opinions can be provided through Legal Aid, limited scope (unbundled) retainers or pro bono organizations. To lower the cost, non-lawyers could organize documents, articling students could draft opinions and specialists could review the work and sign off on advice.
- Amicus curiae that help self-represented litigants. Amicus curiae, or “friend of the court”, is a lawyer who serves the court by making arguments the court needs to hear in order for justice to be done. It is extremely valuable to appoint friends of the court who are there to advance the legal position of SRLs. Having an amicus in this role harmonizes the SRLs need to have their best foot put forward, the other parties’ need to avoid giving advice to SRLs, and the courts need to fully hear all sides of a case. In some cases it will be appropriate for friends of the court to be paid by the Attorney General. In other cases, the work can be done pro bono. Having implemented the pro bono amicus model for motions in the Court of Appeal, PBLO plans to replicate it in the Superior Court of Justice and Tax Court of Canada. Our volunteers thoroughly enjoy the work and all stakeholders benefit. It should be supported across the country.
- Extra responsibilities for lawyers who withdraw their services. A staggering finding in the SRL Final Report is that 53% of those surveyed previously had a lawyer. While lawyer/client relationships sometimes have to end, they should never end until the client has a clear summary of their case and a roadmap to self-representation. The roadmap could tell them what steps to anticipate, the essence of how to complete them and where help might be available. Lawyers should not be ok with having former clients who are overwhelmed and confused about what to do next. Law Societies should encourage or even mandate lawyers to provide this guidance upon the withdrawal of services.
Tim Summers (Self-Represented Litigant)
Seven days to respond. “How in the “#$%$% &^%^ &*^&*! How am I going to do that,” I think. I’m working double shifts and weekends. I arrive, exhausted, my documents forgotten at home, unread. Waiting I think, “Sign and it will be done.” In my daze it makes sense. Resigned, I sign off –evicting myself from my home of 20 years. The sword had done its job.
1) Slow the Sword
Seven days is too short for a SRL to respond. The process should include information on how to ask for an adjournment. Allow SRLs to have time to prepare.
Signing off was not resolution. Later I realize the number of errors I had made, in both law and procedure. Ah, if we could take a legal professor’s brain and squeeze it into a pill. Damn, too few professors. Using my lack of legal understanding to their advantage, I was wandering a legal maze attempting to remove my blindfold while they pelted me with sticks and stones.
2) Remove the Blindfold
Offer SRLs courses and webinars covering the process, research methods, and telling them what the judge needs from them. Ask SRLs what information would have helped when they started the process. Base the course on their answer. And encourage mediation.
Again I am served. This time I know I can ask for an adjournment. I google adjournments during the long weekend. What an ordeal. Nothing! All I found was Alberta’s Law information Centre.
Tuesday, I call and leave a message and at 4pm Wednesday I get a call back. We meet Thursday. A staff person (a “non-lawyer”) reviews my draft and wrestles with the “legal advice” verses “legal information” distinction in order to give me guidance without “advising” me. The roundabout language is confusing.
The legal system needs to clarify “legal advice” verses “legal information.” Many times I asked for information and as it “could” be legal advice I did not receive an answer. How to fill out a form is not advice. Sharing information about the process is not advice. It is not an “opinion” on what I should do (which would be legal advice?)
3) Balance the Scales
After a sleepless night, I have a hearing on my request for an adjournment. The judge listens to the lawyer for 20 minutes and barely I get two. I get a little more time, but not all I asked for. I’m feeling smacked down by the Scales, after a week’s hard work.
The Scales did not find a balance – my lack of knowledge hurt my case. Unclear processes frustrated me. The system blindfolds us by burying information in legalize and convoluted verbiage.
Let us get the Sword, Scales and Blindfold where they belong – on our Lady of Justice, not entangling the SRLs
P.S. For a fresh perspective on the legal arena read Frank Herbert’s “Dosadi Experiment”
