Self-Represented Litigants Stumble Finding Answers to Procedural Questions: But a Solution is within Reach

Self-Represented Litigants Stumble Finding Answers to Procedural Questions: But a Solution is within Reach

This week’s blog is written by Heather Hui-Litwin, a long-time friend of NSRLP, former SRL and co-founder of the Self-Rep Navigators group in Toronto (www.limitedscoperetainers.ca).

Heather recounts her experience trying to track down procedural information for a SRL she is assisting. The 2013 Study, and our continued daily contact with SRLs at the NSRLP, demonstrates how much SRLs worry and stress about navigating court procedures, and the significance of access to accurate procedural information. Heather’s personal experiment described below shows just how hazardous and strewn with obstacles this process is.

Working with the self-represented

By way of background, I am a non-practising lawyer who specializes in supporting self-represented litigants through the provision of (pro bono) legal education. A recent client needed help with a family law matter. The client asked me some procedural questions, such as whether her order would remain in force when a notice of appeal was filed, and whether she would have to attend a hearing relating to trial costs when an appeal was pending.

As I am not a family law specialist, I could not help this person without learning more about family law appeals myself. I have discovered that even when you think you might know the answer, you might be wrong.  I have learned from experience that there are other unanticipated case-specific factors which come into play, which would only be known to those who have practical experience. I always prefer to get some more definitive information from someone with more experience.

In this case, instead of referring my client to lawyers, or pestering my colleagues for help, I decided to see if I first could find some answers myself, through research, and assistance from duty counsel or counter staff at the courthouse. Just like a self-represented litigant might

So began my trip down the rabbit hole….

Searching for answers

I first went to a Family Law Information Centre (FLIC).  I lasted less than 3 minutes there. As soon as I disclosed that I am a lawyer (but not specialized in family law) trying to help someone else, the intake staff person immediately cut me off. She said firmly, “Sorry. We cannot help you. You should get yourself educated.”  This is an understandable policy – FLIC is there to help laypeople, not lawyers – but this was not a welcome start to my experiment.

Next, I went to the Great Library of the Law Society of Upper Canada (open to the public and hence to self-represented litigants) to research the questions, but even as a trained lawyer with familiarity with legal materials, I could not find clear answers there.

I then decided to continue to seek help at the courthouse at Osgoode Hall, the location of the Court of Appeal and the Divisional Court.  I first went to reception and enquired about assistance. The receptionist said I should talk to duty counsel, who would be sitting “outside Courtroom 7”.  I was disappointed and rather surprised to discover that the existence of duty counsel services was not clearly marked; there was no signage or booth. I only learned that duty counsel services were available from speaking to the receptionist.

I looked outside Courtroom 7, but noone was there. When I reported this back to the receptionist, he told me that duty counsel is present only on every Wednesday morning (this was late morning on a Wednesday) so I should come back in a week.

Next, I went to the Court of Appeal counter. Since my questions related to the filing of an appeal, as a lay litigant it would be reasonable to assume that this was the court that dealt with issues surrounding appeals.  I waited for 45 minutes. There was only one counter staff on duty because it was the lunch hour. When it was my turn, they said I was in the wrong place, and told me to go the Divisional Court counter.

I proceeded to Divisional Court as advised. A staff member came to assist me, but she said she could not help and I had to go to the FLIC office.  Of course, I could not go to the FLIC office, as I was turned away earlier.

The net result of my efforts was 2.5 hours spent trying without success to get answers to my procedural questions.

Filling the gap: the “Navigators” model

It is because of this gap of assistance that I believe that we need procedural “Navigators” present at courthouses who can assist self-represented litigants. Currently, Nova Scotia has a pilot called the Public Navigator Program that offers assistance by trained lay members of the public and is restricted to procedural information. http://www.legalinfo.org/public-navigator-information/recognition.html.

In addition, a huge difference could be made if lawyers would offer procedural “coaching” services to the primarily self-represented under limited scope retainer agreements. I think the private Bar can make such a tremendous contribution to access to justice by providing this type of critical procedural assistance. Self-represented litigants are constantly confounded and derailed by their unfamiliarity with legal procedure and the lack of definitive answers (as in this case) to important procedural questions. I offer tutorial sessions to clients, but I limit them to legal education (for civil, non-family cases) which can be delivered without reference to the merits or the substance of the case.

Comprehensive legal coaching

And of course, lawyers are able to offer a more comprehensive menu of legal coaching services, going beyond procedural information.  I refer clients to the Self-Rep Navigators (www.limitedscoperetainers.ca) for coaching that includes legal advice on the merits of their case. I have been very excited and encouraged by the work the Self-Rep Navigators have been doing.

I hope that legal coaching will take off as the new trend in legal service delivery, so that all litigants will have access to at least some assistance in their litigation.

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Comments (6)

  • Ron Reply

    Congratulations on the momentum and awareness you are creating for SRL. I am reading your pages and news and have only one comment. I have been in a Civil Action for nearly 7 years. And if its not the bogged down system its the ‘other’ side intentionally messing things up to add and drag out time. I have counsel, but its seems quite apparent that his interests in moving things along are not the same as mine. The bigger problem (my point) and a possible idea for the Chief Justice to address at some time is this: Lawyers, across the country should be forced to take at least 1 contingency case per year. Lawyers should also be mandated to put in a little free time on a monthly basis. Because as we all know, ‘they’ are not interested in doing anything for anyone unless they can get paid for it. In what kind of other industry can a person (business) take on so much business, use the excuse that they are burdened by other actions, refuse cases, and/or turn a blind eye to a hurt individual. Terrible.

    November 28, 2016 at 10:16 am
  • evert jan steen Reply

    With great interest I read Heather Hui-Litwin’s Post. Not sure if your offices and readers know about the services of the Vancouver based Self-Counsel Press. (URL below)
    It takes me back to Toronto, 1968. My then sweet wife and I were divorcing; legal cause: ‘Irreconcilable Differences!’
    My research took me to discover the Self-Counsel Press (remember NO Google Internet then!) I purchased a freshly arrived, Canada applied, California Divorce kit for some $400. CAD I believe. (Presently = $39.95)
    Even @ that price it was cheaper and faster than hiring legal counsel.
    Long story short:)> I followed the steps EXACTLY as prescribed: ‘Get the following Forms at a legal publishing house; fill out Form such’nsuch; go to Court Registry counter so’n so; Register and pay FEE. Etc > etc., …. I think it took some 3 months > DONE > A decree NISI was delivered. With no response of objection from either party (clearly NOT).. I believe some 6 months wait, and a decree ABSOLUTE was delivered! YEAH! we shouted! We’ve done it! Let’s go celebrate! Going for Chinese dinner, we did!……(Is this called ‘Collusion? NO! We just could not live together!). Lotta Dempsey a then Toronto Star columnist did an article; we were interviewed on CBC TV, as the very first Canadian couple using a Hot-of-the-Press divorce kit!
    I do not believe the phrase Self-Representing Litigant (SRL) had been coined.

    Heather’s above sojourn reminded me of that part of my past. Check out Self-Counsel, they may just be worth the $39.95!

    http://www.self-counsel.com/news/about-us/

    November 28, 2016 at 12:34 pm
  • TDA Reply

    Hi,
    This is interesting because I think most people assume lawyers “just know”.

    I’m a self represented litigant, in Nova Scotia.
    The Defendants are represented by a total of 4 lawyers. I say this a lot because it is so illustrative: one of the Defendant’s counsel has been practicing law for longer than I’ve been alive. The worst lawyer would be better then me. But I’m still here.

    It’s a process of continual learning and adaptation and there are many barriers. I realized one of which was knowledge that comes only with having done it as many times as Defendant’s counsel have and I’ll never have it.

    So I read a lot and ask questions. Even questions that seem off topic because they can help me understand a “main” question and provide context that otherwise would take years of experience to learn.

    If I had to put everything I know now in a pamphlet for my earlier self, it would be volumes. This alone is enough to stop most SRL’s, I would think.

    Very interesting article!

    November 28, 2016 at 5:35 pm
  • Chris Budgell Reply

    Having sweated through a number of civil (mostly judicial review) cases as an SRL, I concur. It is the challenge of navigating the procedures that I’ve always found to be the most frustrating and stressful. (The actual experience in a courtroom is also very stressful, but at least that is generally over fairly quickly.)

    One tool that it seems to me would be most valuable is a flowchart of what an SRL is facing in the pursuit of any particular case. Flowcharts can provide a wealth of information and yet be readily decipherable. E.G. they could identify every form that must be prepared and when they must be filed in court and served on the other parties. Why, with all the information we see online, are there virtually no procedural flowcharts?

    November 28, 2016 at 6:27 pm
  • Ernest Hamilton Reply

    WOW I really enjoyed reading this article and the comments. It is so true what is being said. I had a bad experience in court as well. I did qualify for legal aid and found a lawyer and everything seemed okay until I realized my lawyer wasn’t doing what I asked him to do. I am a pretty intelligent guy and I understand a little how the law works and I could see some of what needed to be done on my case to win. However my lawyer disagreed with me, and quite frankly told me that I’m not a lawyer and that I don’t know what i’m talking about. So there is a lot more wrong with the Justice System when your own lawyer thinks that they know everything and you are incapable of understanding anything about law just because we didn’t go to law school. I find this to be very sad part of how the justice system views us the non – lawyers. Anyway I eventually fired my lawyer on the advice of an ex lawyer friend who told me this lawyer wasn’t working for me hardly at all. Anyway I had to find another lawyer and it took sometime to do so. I finally found one and I forced him into a corner to accept my knowledge of things, and guess what! My strategy is what helped me win the case. And I told everyone that my strategies would indeed win. I am a trained in Behavioral Management and so I am able to see evidence and procedures that most people miss. I was actually planning to go to law school but didn’t. Its funny though, if I had gone to law school the justice system would say I’m a Genius. And yet I didn’t go to law school and I am pretty sure I am still very Intelligent.

    Anyways this article has also brought up a lot of memories of all the hassles and nonsense I had to put up with concerning this special club non lawyers don’t belong to, just like many people have described in the many youtube videos linked to this article. I am very HAPPY that finally there are people trying to open up the Legal System to help all of us. I actually am learning to be one of those people that want to help. SO Thank You to all of you for creating such Support.

    December 1, 2016 at 2:24 am
  • Nicole Reply

    Is there a blog where SRL can ask questions on procedures?

    April 6, 2017 at 6:30 pm

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