Originally published on Slaw, Canada’s online legal magazine; written by Julie Macfarlane and Jeff Rose-Martland. This is the third in a regular series of columns for Slaw, written by the NSRLP team.
In the last five years, the engagement, skill and experience of individuals representing themselves in the justice system has changed in a number of very important ways. NSRLP has a number of data points to reinforce this observation, including the 2015/16 Intake Report and the 2017 Intake Reportwhich noted:
“Last year we were struck by the growing sophistication and nuance of the tips offered by SRLs to others who face similar circumstances. In 2017, we continue to see very detailed advice offered to other SRLs. Respondents offered personal experiences with preparing court documents, preparing for appearances, how to research, and how to stay strong during the extreme stress and pressures of navigating and engaging the legal system….”
As well, there is a growing movement of effective and sustained A2J advocacy among former SRLs. From the blog:
“We continually meet former SRLs who want to work on Access to Justice issues long after their own case has ended, in order to make the SRL experience less frustrating for others whose circumstances will also require that they self-represent.”
SLAW is experiencing a sharp uptick in the number of comments being posted by those whose experience of the legal system is as members of the public, not members of the legal profession. This is a development to be welcomed, but it is a change that demands further analysis and sober reflection by system insiders. In this post we – an SRL and a law professor – will try to explain what we think are the critical implications of this, based both on our personal experiences and NSRLP data.
First, let us say that the legal community disregards this development at their peril. There is sometimes a feeling at legal conferences, in coffee room chatter, and on social media that the grievances of SRLs can be brushed aside because they “don’t get it”. Lawyers and judges roll their eyes and shrug their shoulders at public complaints of sharp practice (“they don’t understand our adversarial system”), unclear decision-making (“they don’t understand judicial discretion”), consumer-unfriendly billing conventions, and an overall lack of accountability. Each of these and other grievances can be met with: the public doesn’t understand. They are not trained like we are. “We” know better than they.
This line has worked for a long time, but now totters on the very edge of credibility. An increasingly knowledgeable and outraged public understands a thing or two about the legal system. First, it is a closed shop. There are few entry points, all of which involve dues and apprenticing. From legal clerks to law professors to judges, admission to the system is through specialized training and apprenticeship. Of course legal professionals should be trained to do their jobs effectively. But the barriers to entry – including the high cost of law school tuition that excludes would-be lawyers from working and lower-middle class backgrounds, the importance of personal “connections” that reinforce the status quo, and notwithstanding some advances, the continuing prejudice and discrimination exercised against women and people of colour – are inappropriate for a profession that is a 21st century public service. Our continued tolerance of these exclusionary and elitist elements disgraces us. The ridiculous “we-shall-die-on-this-hill” apoplexy that greeted reasonable proposals (in British Columbia and Ontario) to train and equip para-legals to undertake a limited range of family law tasks for a family litigant population is that now more than 50% self-represented is a perfect example of this.
Second, the public is increasingly aware that they are disadvantaged in the legal system when they cannot afford counsel. Data shows that SRLs are systemically unlikely to win in a matter in which they face a represented party. Statistics on outcomes in summary judgment motions, increasingly being brought as a default strategy by a represented party to pre-emptively end a case against an SRL, show a shocking 95% success rate for the moving party. Of course a trained professional is far more likely to prevail than an SRL, but these statistics show an imbalance of horrifying proportions, especially when we know that among SRLs there are some who are extremely well-prepared, intelligent and well-educated. Their failure should not be pre-ordained. We also know that the legal system increasingly deploys punitive measures to discourage SRLs, including substantial and unusual cost awards against SRLs, and a worrisome range of discretion in both formally and informally designating an SRL as “vexatious” (see pages 7-9).
Third, the complaints systems presently offered to those who, at the end of their case, feel that they have been unfairly treated is a throw-back to the old days when there were few SRLs and few members of the public who would consider complaining about a lawyer or a judge. Demands for public accountability falls abysmally short where complaints systems are controlled by those who are the subject of the complaints. In other areas of public concern, we see steps being taken to move public complaints to credible independent bodies (for example, against police, about sexual abuse in the churches). But not the legal profession or the judiciary. They still control investigations of themselves. After all, the narrative goes, they are the only ones who really understand what they are doing.
Not everyone thinks that way, of course. There are insiders who are trying to force open the doors. Judges who are working hard on trying to resolve how to offer procedural fairness to SRLs against the system. Lawyers offering lower-cost flexible services in which they work with their clients, not just taking over. Law students who are volunteering to coach SRLs. Academics and NGOs who are credibly examining and reporting on possible A2J solutions.
Can Outsiders Work for Change Inside the System? Jeff’s story
On the first day of NSRLP’s stakeholder dialogue in October, Nova Scotia Justice Jim Williams said to the attending SRLs, “This is your system as much as mine, or that of anyone else.”
That floored me. From the moment I (Jeff) became entangled in the legal system, I have been treated like mice in the house – unwelcome at best, offensive at worst. Justice Williams’ words were alien to my experience, and profoundly moving.
For my first few encounters as a self-represented litigant, I insisted that I not be treated like I was stupid. I demanded answers. I challenged the responses that I got. I quoted legislation. But after a barrage of oblique replies, arcane explanations, and word re-definitions, I started thinking that maybe I was stupid after all. The more I was kept out, the more I believed there was no place for me in the legal system.
It took Justice Williams to remind me that wasn’t the case.
All the same, there are two ways to interpret his words. Yes, the justice system belongs to us all. But the justice system does not belong to all of us. The system that obtains belongs to those who have been ordained in its hierarchy.
SRLs both need and want expert help. We want the justice we have been told is available to everyone. We want to do whatever is needed to access justice. We want to be able to present our facts, present our version of what those facts mean, and have a decision that is just. Or at least fair, understandable and explainable.
SRLs don’t want to join the system. They do not want to devote our scarce time to performing brain surgery on ourselves, twisting our minds according to the needs of the system. We want the system fixed so that no one else has to endure what we have.
Can Insiders Work for Change Inside the System? Julie’s story
I (Julie) have spent most of my adult life trying to figure out the balance between advocating for change from within, and pressing for change from outside an institution or system. I have spent 35 years teaching in law school, and from the very first day I wanted to radically change how we train lawyers. Much of my work has focused on this.
I still believe that my influence and ability to push for change is enhanced by the status I hold inside the system. But of course that buys into the points that Jeff and I are making here – that the system privileges those with that insider status. It has made me uncomfortable for 35 years. Yet it has also allowed my work to have some impact.
Along with all those law students, lawyers, judges and third-sector workers and advocates who have stepped up to advocate for A2J, I am part of the system. As we assist SRLs, we are imparting the secrets of the arcane, teaching SRLs how to “play the game”, moving them towards initiation, and offering them standing space in the cold, dark corners of the halls of justice. But they are still cold, dark corners. And this is emergency critical care, band-aid solutions. Much better than nothing but not a strategy or a plan for real system change.
A2J advocates need to ask ourselves: am I working towards justice, or just propping up the system? Am I defending elitism or striving to end it? Am I offering “poor SRLs” a paternalistic pat, or are we keeping our eyes fixed on the prize: radical system overhaul?
Respecting one another
Systemic change – to the professional culture, the processes and the social meaning – of the justice system is inevitable. The number of people coming to court without lawyers has grown to astonishing proportions. More than half of family litigants across the country and a third of civil and appellate litigants are self-representing because they cannot afford, or continue to afford, legal assistance. SRLs see online information as giving them entry to a previously well-guarded system.
The profession is going to have to deal with its twin preoccupations of exclusivity and profit-making. They make difficult bedfellows, especially when “public interest” is added to the equation. SRLs accept they may lose, but they won’t just go away. Courts are being forced to deal with SRLs, and some of the recent jurisprudence highlights the battlegrounds: do we offer the public procedural fairness, or do we punish them for daring to imagine that they could do without lawyers?
It is too late now for insiders to shout all-hands-to-the-barricades; the bastion is already infiltrated. Those stubbornly defending the old ways may hold out for a while, but they will go down, as those who refuse to adapt always do. Change offers opportunity for those who seize it. There is room for both insiders and outsiders, respecting one another’s perspectives and experiences, to argue for change and bring justice back to the justice system.
Indeed. When’s the revolution?
Excellent article Julie, Jeff!
The first time I read it, it brought tears to my eyes, no way…..they know!
It’s terrific everyone starting talking about our Access to Justice crisis.
We need real change, that involves action and out-of-the-box solutions, in my opinion.
The legal system, is trying to push SRLs, round-pegs, through the square holes in the game-boards they created, for themselves.
I would suggest, we should rather offer alternative, cost effective, collaborative justice system, along with access to it. Respectfully, if the lawyers don’t want to change to meet the needs, and expectations of the public, I expect the public will get over that.
Everything our current system does is designed to draw things out. I don’t pretend to be an expert on mediation, I’ve never even attend one, as far as I recall. But in some areas we have mandatory mediation, but if both sides don’t want to settle, aren’t rewarded for settling, what are the odds there will be successful settlement at mediation?
I think mediation is a great option, and it should be available free in every area of Ontario, with a fee-waiver, not just Toronto, London, Windsor, Ottawa, the areas where they have mandatory mediation.
Why aren’t we making use of binding arbitration or binding settlement negotiations and making that option available to parties?
I thought, why can’t we go into binding negotiations, with pre-conditions for acceptable outcomes to both sides, so any settlement amount, must fall between Amount A, and Amount B, which is agreed on, in advance.
Wouldn’t it make more sense if a system was constructed to address the needs of the public?
Until everyone can walk into a courtroom confidently knowing they will be treated fairly, given their day in court as it were, we will continue to have an access to justice crisis.
Talk, it’s nice, but in Ontario someone living in poverty isn’t even afforded any protection against adverse costs awards in an action, the Charter rings hollow.
I just ask the Supreme Court of Canada to grant me immunity from costs, maybe today’s the day, our top court reconsiders it’s stance on equality before the law, and access to justice.
It’s disgŕaceful how tribal Alberta judges are abusing and misusing “vexatious litigant” designations on SRL’s in Alberta!
It did not surprise me to see that Alberta was the top province in the country in this catagory.
“tribal Alberta judges” Freudian slip?
Delighted to read this post, as I prepare to head to court…5 years of full legal representation and now 3rd year of unbundled services and SRL. Please can we organize, now, ( i. e. this month, this year) to identify specific, incremental changes, not only for SRL but in the process itself?!
On October 25, 2018, I attended the “Mentorship, Networking and Access to Justice” session at the Law Society of Ontario, 130 Queen Street West, Toronto . Sadly, there were only 3 or 4 “clients” or SRLs among the attendees, essentially all lawyers, legal assistants, etc.
It became clearer to me that A2J (access to justice?) was/is really about access to “lawyers”, or perhaps lawyers having access to more SRLs, i.e. unbundled services.
There was very little discussion about issues regarding the effectiveness of the courts, the legal process, and the laws, all of which are developed, maintained and funded by our tax dollars, I believe. More importantly, there was no discussion about concrete plans or steps to address the many obstacles and lack of access to “justice” (not lawyers) for the citizens of Ontario and Canada.
We (SRLs and clients) need to get involved, participate and help lead the steps to positive, incremental immediate change for justice!
I received the following email from TAG: The Action Group on Access to Justice
_______________________________________________
Call for Comment: Access to justice approach
The Law Society’s Access to Justice Committee is seeking input from lawyers, paralegals, legal and community organizations and the public to assist in its ongoing review of the Law Society’s approach to access to justice.
The initiatives are described in a Consultation Paper and a list of guiding questions are found at the conclusion of the paper.
There are three ways to provide comment by May 31, 2019.
Respond to the questions through the online survey form (button below)
Upload a Word or PDF document through the online survey form
Mail your submission to:
Access to Justice Consultation
Law Society of Ontario, 130 Queen Street West,
Toronto, ON M5H 2N6
__________________________________________________
My previous work included international corporate and government process improvement as well as regulatory requirements to prevent fraud, anti-money-laundering and anti-terrorist-financing, with and without technology support.
Since Jan. 2017, I’ve been “home”, preparing for RFI, Questioning, motions for disclosure following unanswered Undertakings re: discrepancies of hundreds of thousands of dollars in opposing party’s Financial Statements, “misrepresentation” of the facts in many Affidavits as well as on the witness stand at Trial, all supported by Opposing Counsel. Is perjury by the witness and counselling perjury no longer a crime? Is there a law (contempt?) to address abuse of the court process? Is Spousal Abuse, (i.e. economic, mental, emotional abuse) during the court process not a crime?
Example: Based on the judge’s comments before I was questioned, I was told “the judge already decided”, so “there is no point in continuing, it will just take longer and cost more”. Is this Justice?
My family law case is my full-time job, with unbundled services, given the court process “games” by opposing counsel and opposing party. I now work with Divorcemate, LexisNexis, dedicated laptops, printers, 2017 Canadian Family Law, 7th edition by J.D. Payne & M. A. Payne, both Property Rights and Obligations and Support Rights and Obligations by R.M. Halpern., etc.
Please, we need changes as soon as possible, given the high percentage of the population (married or common-law) who will continue to go through this process which is ineffective and damaging to the tax-paying citizens who fund the courts, the children, extended family as well as their occupation.
I can prove to you with documentation that the safest place to lie is in a courtroom and in affidavits and the courts protect witness tampering by lawyers, forgery, fraud (especially by banks).
There is nothing of the legal system that any decent human being needs. We need common law courts manned by regular human beings with a good sense of right and wrong, and judges that are elected.
What can I do when a judge of the civil Ontario Superior Court does not issue a written decision?
Of course I can Appeal – based on the audio decision – but an SRL against a municipality with unlimited funding?
– fighting a “dismissed without prjudice” vexatious litigant application?
Load the audio (CD) into your computer then contact Go Transcript they will transcribe it to text. If the Courts transcript is too expensive. Go Transcript is available check on Google. They’re cheap and you can do it via email. Ask them to certify the transcription.
What is unfolding in Ontario courtrooms is nothing short of criminal. Judges are not required to have any education when dealing with cases of domestic violence. Judges are incapable of recognizing the characteristics of a psychopath/sociopath/narcissist.
Fantastic post, Jeff and Julie. The ‘insider’ status makes me feel uncomfortable, too and has never left me even though as an articling student, others in the profession treat me as a peer. I am not at all surprised that you feel the same after all these years, Julie!
Today I overheard a lawyer state that she was helping a family law client on a limited scope basis. Another lawyer said something like, “that’s scary”. Sigh. On the upside, I made an agency appearance with a self represented person who had retained yet another lawyer on a limited scope basis, and the judge inquired and understood that the lawyer was involved in this way. So, adaptation is happening and all hope is not lost!
Tribalism is the reason that Alberta declare more SRL’s “vexatious litigants” than any other jurisdiction. No Freudian slip!
Overuse of “vexatious litigant” is obviously used to rid the system of SRL’s and bring an early end to their litigation.
“Tribalism”
In-Group solidarity i.e.”insiders” feed on Out-Group animosity i.e. “outsiders”
This polarization is dangerous and destructive to “good faith” “honesty” “fairness” “objectivity” and “impariality”
“First, let us say that the legal community disregards this development at their peril.”
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This statement is true but change is unlikely while the legal community continues to believe its own storyline that it acts in the public interest. For example, lawyers frame their opposition to paralegals to undertaking some family law tasks as a concern about safeguards for vulnerable families negotiating the court system. They also justify the rise in their use of summary judgement procedures as targeting frivolous litigation which ‘clogs’ the courts. Lawyers may believe that spin. The rest of us see it as lawyers protecting their turf- with little or no benefit to the public. And those are the overt examples.
The system also favours the interests of lawyers over those of the public or paralegals in more subtle actions/inactions:-
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1. In 2015 the LSO started a review of its complaints procedures to improve the LSO’s compliance with the timelines in the National Discipline Standards. By 2017 the LSO had significantly improved compliance with the standards but the number of complaints which were referred for investigation “dropped dramatically, from over half in 2015 to less than one-quarter in 2017” and, for matters which were referred, far shorter explanations for the closings were provided to the complainants. [2017 Complaints Resolutions Commissioner’s report]. So, the the overhaul of the complaints process ‘improved’ compliance by rejecting more complaints?! How many of the additional rejections were complaints submitted by SRLs/the public? How does conducting fewer investigations benefit the PUBLIC?
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2. The number of complaints about paralegals which reach the Tribunal are significantly higher than their proportion of LSO membership and this pattern has been going on for years. It is also notable that over 1/3 of the complaints against paralegals involve ‘governance issues’ such as acting outside the scope of their licence and improper advertising, [2016 Professional Regulation Committee report]. Hmmm. I wonder how many of those complaints were submitted by lawyers? Is the Complaints process being used as a weapon in a turf war?
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To me, it looks like the ‘public interest’ runs well behind to the interests of the established legal community, and I’m not sure that paralegals get a much better shake.
canadian lawyer magazine did a story-“limitation period poor defence against legal malpractice claims by unsophisticated parties” type that in to read it-in my case all the courts ruled i was as good as an experienced lawyer so any errors i made were on purpose and i was punished for it-so when i sued lawyers the limitation period was used to stop my case-but NO analysis was done/no timeline as to when my case expired was ever used and i was up against a top large law firm who handles all the lawsuits against lawyers-so that lawyer mag story is fake news-the courts ignore case and large law firms choose the judge they want to fix the case.
the only way to let us use the courts is to create our own party and vote corruption away-what we do by not giving up is force lawyers to commit countless sins against us that will someday get lawyers/judges what goes around comes around JUSTICE. april 14 2019.
SRLs have a hard enough time suing-now the ontario PCs new bill will make it next to impossible to sue the gov -even acts of bad faith-and the law will apply retroactively shutting down present lawsuits-and everyone votes for this B.S.
What retroactive legislation are your referring to Tom??
Here is a starting point to some case law cases that all SRLs should know or could use sooner then later . Just Sharing legal information , this is not legal advice . Hope fully it will be help full & a good starting point to get some well deserved monies for all your legal problems ?
http://alberta.newjusticeforthepeople.com/case-law-srl-need-to-know/