Courting a Crisis: Self-representation in Court
She has been threatened with abduction, shaken down for bribes and stopped at gunpoint by hostile police. But nothing in Alison MacLean's work as a combat camerawoman in Afghanistan has proved as scarring as the legal battles she has waged on her own behalf in B.C.'s family COURT system. They began in 2008, when after a messy divorce, MacLean learned at the last hour that her ex-husband was applying for the forced sale of their house. She was in hospital at the time preparing for a knee-replacement surgery. Instead, she raced to Vancouver's Robson Street courthouse in time to attend a registrar's hearing, where she succeeded in getting the action set aside. "My lawyer told me she couldn't go speak for me that day," recalls MacLean, 53. "I had no choice but to go. It was the first-time I self-repped, and it was a success. For me, that was a turning point."
Three years on, MacLean is still fighting her ex in court, representing herself in all but the most complex proceedings. "I'm your average, middle-class working mom," she says. "I don't have access to huge amounts of money." And while she's honed her skills over 10 court appearances, familiarity hasn't enhanced the experience. The justice system, she says, is set up for lawyers, judges and clerks--more than a few of whom make no secret of their exasperation with self-represented litigants. She can research case law, swear an affidavit and file documents as expertly as a paralegal. But when asked what it's like to navigate this bewildering subculture on her own, MacLean doesn't hesitate: "I prefer being in Afghanistan."
It's the sort of sentiment heard often these days as more and more Canadians plunge into the rabbit warren of the justice system alone. More than half the litigants in family courts, and as many as 40 per cent in civil court, are representing themselves, according to recent studies in B.C., Alberta and Ontario--a much higher proportion than did so 10, or even five, years ago. The result, say senior members of the legal profession, is unprecedented delays, bottlenecks and overall strain on the judicial system. As early as 2007, the chief justice of the SUPREME COURT, Beverley McLachlin, warned that do-it-yourselfers were "working their own special forms of injustice," because their proceedings "adjourn or stretch out, adding to the public cost of running the court."
Yet the growth in so-called "self-repping" has gone on unabated. In a survey performed last year, 84 out of 132 litigants approached randomly in Ontario courthouses said they were representing themselves, taking advantage of the ready availability of information online, and research skills learned in university. With similar trends under way in other developed countries, some experts believe we're witnessing a transformative moment--one no amount of wishful thinking on the part of lawyers and judges is going to stave off. "It's almost as if the legal profession has been sleepwalking through this," says Julie Macfarlane, a University of Windsor law professor studying self-representation. "It's like a revolution, except that, unfortunately, these are not very skilful revolutionaries."
Indeed, if Macfarlane's work is anything to go by, many are acting out of financial necessity. Over the last year, she and her team have interviewed 285 self-reps in three provinces, many of whom ran their bank accounts dry paying lawyers in earlier stages of their cases. That left them in limbo: while 40 per cent boasted salaries of more than $50,000 annually, their relatively healthy incomes disqualified them for legal aid, which most provinces now deny to all but the most cash-strapped litigants. With lawyers' fees running about $400-$600 per hour, some faced stark choices. "It was keep fighting on my own or lose custody of my kids," one Ontario litigant told Maclean's. "It was really the only option."
Financial pressures, however, are only part of the picture. The growth in self-representation also reflects a phenomenon economists call "disintermediation," where savvy people obtain goods and services without the help of middlemen. With most provinces providing legal resources online, notes Nick Bala, a Queen's University law professor, the deference once accorded to trained professionals is falling away. "The days of lawyers pulling down a book and saying, 'I've got information you don't know about,' are over," he says.
Whatever their motivations, the do-it-yourselfers are having a profound effect on courts. David Price, a Superior Court justice in Ontario, figures about half the litigants undertaking family and civil law motions in his Brampton, Ont., courtroom are doing so on their own. "If they're not able to supply the necessary evidence and legal argument, the judge's task and the time required to perform it will be greater," he said by email (Price stressed that his remarks were based on his own experiences, and that he is not a spokesman for the court). Self-represented litigants are less likely to settle out of court, the judge added, and the delay causes frustrations for everyone involved. "The judge is disappointed to find that fewer cases on the list settle," he said. "The litigant is disappointed to find the judge cannot decide the case immediately."
There's no reliable proof, alas, that the gamble of going it alone pays off. The few studies available comparing outcomes suggest self-represented litigants spend more time in court, and win lesser awards, than those with lawyers. What's more, many self-reps emerge from the process wrung out. Tim Summers, an Edmontonian who self-litigated the division of his matrimonial property two years ago, believes he got a reasonable agreement. But the 52-year-old college instructor winces when he recalls the ordeal: "I truly believe I became borderline psychopathic," he says. "I felt so frustrated, so limited in what I could do. I could write a blockbuster story about the nasty, mean thoughts that went through my head."
Many in the justice system are trying to help--alert, seemingly, to Macfarlane's warning that "this genie isn't going back in the bottle." Most provinces now have family court clinics and telephone hotlines where litigants can get basic legal advice. In B.C., the justice department has launched a network of resource centres, where litigants can set up in a cubicle and get advice from roving advisers. Judges like Price, and some lawyers, are also making extra effort to accommodate self-reps.
The result, says Bala, may be a hybrid justice system which encourages self-litigants to handle simple processes, while having lawyers handle matters involving complex legal principles. This idea, known as "unbundling," is already in practice in many parts of the country (Summers and MacLean, for example, have both found lawyers willing to provide limited advice while letting the clients handle filing and court appearances). But the system still has a long way to go, says MacLean. Most times she steps in a courtroom, she senses a chill from opposing counsel, court staff or the bench, and she braces for the worst. "I'm used to taking bumps on the job, being alone in the middle of nowhere," she says. "But you shouldn't be so beaten up and broken down by a system that you're relieved to go back to a war zone."
Maclean's February 11, 2013