by Barbara Captijn, former self-represented litigant, blogger and consumer advocate
I was pleased to be invited to Osgoode Law School’s “Bring a Self-Represented Litigant (SRL) to Law School Day” on March 14th. Thanks to Dr. Julie Macfarlane of the University of Windsor Law School and Dean Sossin of Osgoode Hall for this opportunity to interact with students and law professors, and share our experiences as SRLs.
I arrived early on the day of the event and had some time to wander the halls of this prestigious law school, where photos of graduation classes dating back to the 1920’s are proudly displayed. I felt intimidated about being there, and also some regret at not knowing my late father’s graduation year to search for his photo. I spotted some of his contemporaries, some of whom later became judges, and began to think: what motivates anyone to study law—justice, fairness, love of language, societal good, making a good living…?
I was pleasantly surprised by the warm and friendly welcome we received as SRLs at Osgoode. I wondered what makes these open, kind, respectful people into some of the legal attack dogs we encounter in the courtroom.
Winning at all costs may be financially advantageous for lawyers and clients, but it has long-lasting negative effects on SRLs and society as a whole. We would all hire the best lawyers if we could afford it. Unfortunately, the cost of legal assistance is priced beyond the reach of most of the middle class. At hourly fees of $450-750 (ex. HST), or retainers from $30,000-$60,000, few can afford this. Add to this the cost of time spent away from work, and the emotional and financial anxiety litigation brings to entire families.
The day’s events at Osgoode included a warm welcome by the Dean, law student Hannah De Jong, and a team of student “buddies” for each SRL. We attended classes together, shared lunch, and participated in a panel discussion on the SRL experience.
I feared they might see us as outsiders, non-users of their services who didn’t understand the rules of the game and caused delays in the system. On the contrary, we were treated with respect and compassion. Many students were genuinely shocked to hear about our experiences. Professors valued our input and included us in class discussions. This was done with the greatest of respect, even though our levels of understanding were very different. What a breath of fresh air.
If statistics show that fifty to sixty percent of the litigants who come to court these days are SRLs, we have a serious access to justice problem. Legal opinion leaders have raised red flags about this for years. Ordinary citizens come to the justice system to solve problems, not to create more.
But why should law firms lower their fees for ordinary citizens, if they make good incomes from large corporations and the very wealthy who account for most of their revenue?
If this problem is to be properly addressed, it should involve SRLs at the policy table. Victims of the current system need to be heard and understood. We need a collaborative approach to solve this affordability problem and widen the range of legal services to provide equal justice for all.
Our society doesn’t let those accused of violent crimes appear in court unrepresented, because there’s a fear they may not get a fair trial. Why doesn’t this apply to civil courts? Many citizens fear losing their homes or life savings trying to resolve legal disputes in the current adversarial system. Aggressive litigation strategies like withholding evidence, attacking the credibility of witnesses, frequent objections, and procedural roadblocks are all fair game in civil trials. None of this is illegal, but it isn’t fair or balanced.
If winning at all costs is the goal, aggressive litigation strategies are highly successful against SRLs. But this often leaves problems unsolved and creates psychological and financial hardship for many. The Law Society’s rules against “sharp practice” in dealing with SRLs seem to be about as useful as window-dressing.
Most SRLs come to court thinking it’s all about getting at the truth. We think if the judge hears our story, justice will prevail. When you’re telling the truth, you’ve only got one story, as the saying goes. You’re not prepared for the opposing party blocking your story with objections, procedural tricks, case law, and opaque legal terminology. Being right and being able to prove you’re right in court are two different things.
It takes years of training for lawyers to acquire skills in cross-examination, research and interpretation of case law, understanding procedure, and knowing the difference between argument and evidence. SRLs seem expected to learn this within a few days or weeks. There’s an asymmetry in information and financial resources, no matter how well-prepared or well-educated the SRL is. It feels like going to a knife fight armed with a stick.
I recently accompanied an SRL to a Licence Appeal Tribunal (LAT) hearing to provide moral support. The claim was for new home construction defects, the hearings took thirty days, and the judgment, after one-and-a-half years, awarded the appellants only $3,500 for a claim over $100,000. This was lucrative for the lawyers and the warranty corporation which avoided a substantial claim. If winning at all costs was the goal, this certainly takes the cake. If justice was the goal, it’s hard to see how anyone except the lawyers were winners. The home defects were not fixed, and a new house could have been built for the money spent in legal fees. The SRL’s family suffered months of time away from work, lived in a home with construction defects, and endured months of psychological and financial stress. Even the taxpayer who funds the LAT is not well-served by lengthy, costly proceedings against SRLs. At what point does this become “litigation abuse” by large corporations?
No one is suggesting the influx of SRLs is easy on the courts or judges either. There needs to be a more cost-efficient, fair, and respectful way of resolving legal problems than the adversarial courtroom.
Law firms benefit from high hourly fees, drawn-out disputes, bringing motions, and using technicalities to confound the opponent, especially SRLs. Winning is what their clients pay them to do. They’re in the legal business, not the justice business, as a US Supreme Court judge once famously retorted to his law clerk.
Where’s the incentive then for law firms to make court proceedings more cost-efficient for the middle class if they can earn $600-$800 an hour from corporate and very wealthy clients? The taxpayer is not served by lengthy courtroom disputes, and our court system is already over-burdened. But often, a lawyer’s performance is evaluated by how much money they bring to the firm, and promotions hinge on this.
SRLs have no funding, no lobbyists, legal advisers, media pulpit, or political connections. Many members of the legal profession see SRLs as subversives or nut-cases. We have the weakest microphone, and the access to justice problem is spiraling out of control.
SRLs want to give their input on solutions to this problem. Osgoode and the University of Windsor have started to raise awareness among students and faculty with this SRL programme, and it’s a step forward. If the words we heard in the classroom like “fairness” and “social justice” are to be relevant in real life, we need a collaborative effort to bring access to those priced out of the current system.
Heading back down the corridor, gazing at the photos of decades of law graduates, I came back to thoughts about the common ideals which must still draw students to the profession. As ordinary citizens, we think part of it must be a sense of fairness and justice, and doing good for society.
We need the help of policy-makers in government, academia, and the legal profession to create more problem-solving options for ordinary middle-class citizens. We need more use of cost-efficient technology in document preparation and dispute resolution, more unbundling of legal services, more mediation, less use of the courtroom, more pressure on large corporations to provide their own transparent and fair dispute resolution services, and perhaps more education in high schools on how to avoid common legal problems.
Those with a vested interest in the status quo may be the ones most resistant to change.
We need your help as lawyers of the future.
As my late father may have said, in the undemonstrative way of parents of his generation, “I’m sure you’ll figure something out.”