This article was featured in Bartalk, the magazine of the British Columbia Branch of the Canadian Bar Association.
Self-representation has its benefits
Common myth has it that being a Self-Represented Litigant (SRL) in the justice system doesn’t work for anyone.
From a lawyer’s perspective, SRLs are even more difficult than the usual opposing party. For starters, they are not required to adhere to the same standards of conduct, nor are they accountable to an organization which governs their behaviour. And being unfamiliar with both substantive and procedural law they are prone to misunderstanding it or, just as annoying, asking opposing counsel to explain it to them. Many seem to have simply never heard of the concept of chronology in preparing pleadings, and when it comes to evidence, rather than entering what’s relevant, the “kitchen sink” approach frequently prevails. Over and over again SRLs make it clear that in almost every respect, they do not speak the language of the law.
Proof of the increasing pressure SRLs create goes beyond the anecdotes of frustrated counsel. Based on feedback she received from 49 Supreme Court Justices and 7 Masters, in 2013 Madam Justice Victoria Grey reported that the mistakes SRLs make with their evidence “cost the court system money, delay decisions, cost opposing litigants time and money, and cost Justices and Masters time.”
SRLs, on the other hand, largely appear to experience the justice system quite differently. Dr. Julie Macfarlane found that many report feeling like an “outsider” – shut out by unfamiliar courtroom customs and procedures and a language they don’t understand. Often they do not believe they were taken seriously by the judge, who preferred to talk with a lawyer and viewed them as a nuisance and irritation.
This confluence of dissatisfaction has the potential to create a perfect storm for the administration of justice in Canada. On the flip side, with the number of SRLs growing at an exponential rate, it also presents new possibilities for lawyers willing to consider practising in a different way.
Since 2007, I have provided coaching and support to SRLs. I refer to this service as Assisted Self-Representation (ASR) because it goes beyond simply unbundling or acting on a Limited Scope Retainer: At its heart is a translation function for those who find themselves facing the justice system without a lawyer, and must of necessity become conversant with its language and procedures. I have found that with strategic professional assistance, SRLs can achieve good outcomes and benefit in other ways as well from representing themselves. Some recent feedback perhaps captures this best:
I went from scared of the legal system, my Ex’s lawyer and my Ex, to empowered. I have won many legal victories in the past year and many personal victories as well.
Although not everyone may fare quite as well, this client’s story echoes that of many who have benefitted not just professionally, but also personally from the coaching and support they received from a lawyer.
Some people will always be able to afford the services of counsel, while others will continue to qualify for legal aid. But for the growing “sandwich class,” ASR provides a viable alternative. It frees up access to a system which SRLs might otherwise find overwhelming, and for the supporting lawyer, is gratifying to watch from the wings.
Much as we may not want to admit it, SRLs are here to stay. Acknowledging the legitimacy of their presence creates new opportunities for lawyers and is the first step in helping litigants without lawyers achieve a better quality of justice.