On Your Mind: What three changes to the practice of law would make it more responsive to SRLs?NSRLP
Rob Harvie, QC (Bencher, Alberta Law Society)
The anxiety and uncertainty inherent in participating in the legal system impacts everyone. Too often, we polarize ourselves into “us” and “them”. When we feel anxiety, we form groups of common sentiment – and sometimes we deconstruct our “enemies” and minimize the reality of their perspective. For SRLs, the uncertainty of outcomes and the complexity of the system means that they have even higher levels of anxiety and fear. The result is a perfect storm of confrontation.
Three ways that the practice of law could better accommodate SRLs – as well as lawyers, represented clients and judges – would be to take steps to reduce this anxiety and fear, as follows:
1. Lawyers need to understand the anxiety and the stress felt by many SRLs and respond with respect and honesty. This is more likely to engender a reasonable response than the typical threats and aggression. Lawyers need to do a better job of recognizing the “fight or flight” response in most disputes – and engage in ways that reduce this. We expect “combat” as the norm – that expectation needs to change.
2. Government support for better public access to legal advice and information would help reduce uncertainty and anxiety. The recent CBA report, “Reaching Equal Justice”, shows that government spending on health care and education has increased 32% and 20% respectively from 1996 to 2006, while spending on delivery of justice has REDUCED by 9.7% in the same period. Canada now ranks 54th for civil legal aid funding. Our Law Societies and law schools could assist in encouraging the use of Limited Scope Retainers and the use of paralegals – so that SRLs and others could access affordable legal advice and assistance.
3. We need a centralized “triage” system to direct parties in dispute, with or without counsel, to the appropriate forum to assist in resolving their concerns. This includes referrals to properly funded and structured in-court and out-of-court resolution avenues.
Lest SRLs feel alone in their frustration with the system, rest assured this 28 year family lawyer continues to be regularly frustrated in dealing with judicial and extra-judicial bureaucracy. Let’s start from the premise that we’re all in this together. To the extent that we can form common understandings and expectations of ways to make things easier it is to the benefit of us all.
Many of the traditional practices of law exacerbate the already challenging and daunting path of self-representation. Here are three suggestions to begin to bring legal practice into line with what legal consumers need and want.
1. At the onset of a legal matter one of the most important issues for a potential litigant is transparency of costs. In everyday circumstances it is common practice when an individual seeks a service that prior to the commencement of work (and certainly any money being exchanged), a conversation will take place regarding the scope of the services sought and the approximate cost involve. In the practice of law, large sums of monies are routinely relinquished with little understanding on the part of the client of how the money will be spent and what it will actually buy.
Transparency of costs is essential as it allows the client to know at the onset of their matter whether they have the financial ability to proceed with counsel, or whether they may not be in a position to financially afford the services that counsel offers.
2. A second change to the practice of law that would be particularly helpful to SRLs is better access to unbundled legal services. A common hurdle for self represented litigants is finding counsel who will allow them to pay for certain services, while they continue to work on other aspects of their case. The traditional practice of counsel running an entire case does not mesh with the needs of a self represented litigant. There are endless possibilities for ways in which expert legal counsel can support and guide SRLs, including counsel providing information on procedural matters, giving with an overview of important case law, reviewing documents, attending court, and generally working in a consultative role.
3. My third suggestion relates to the wider legal system, and the assignment of judges to cases. As SRLs struggle with the details of their case, their difficulties are compounded by the reality that their case will probably be heard by a different judge each and every time they enter a courtroom. This practice is time consuming for all involved, and often jeopardizes SRLs’ ability to adequately articulate their case. SRLs often assume the judge has read their material prior to the hearing and may not give theinformation necessary for this “new’ judge to properly consider their matter.
From the perspective of a self represented litigant many of the ways in which law is practiced and the courts operate discriminate, albeit unintentionally, against those outside the circle of lawyers and judges. If we are to be inclusive of everyone in the legal system, changes are not only necessary, but ethically just.