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Letter: Don’t encourage self-represented litigants

|Written By Gary Joseph

It seems to me that access to proper dental care is just as important as access to justice. Poor dental health can lead to more serious medical issues, yet rarely do I hear public discourse over the high cost of dental care, the absence of government assistance for those who wish to perform it themselves within the world of oral hygiene or criticism of the rabble of greedy dentists unwilling to perform pro bono services.

Interestingly, the opposite is true for our justice system and, in particular, access to our family courts by self-represented litigants. Contrary to recent reports and your editorial of May 13, 2013, (see “Making legal services by web, phone more useful”) during my lengthy career as a family lawyer I have seen numerous efforts from the bench and the bar attempting to address the public concerns over the family law system. There are several examples of such efforts:

1.    The passage of the Family Law Rules with new forms dubbed by many as permitting check-box justice. After eliminating most of the archaic demands of pleadings, it’s now easier to institute proceedings.

2.    Family law information sessions provided for free to all new litigants in the family law system during which volunteer lawyers, social workers, and court staff deliver seminars. They clearly explain the process.

3.    A new and more extensive conference system to facilitate early settlement and the creation of a less adversarial environment.

4.    Mediation offices in many courthouses offering low-cost services to family law litigants.

5.    A duty counsel system at most courthouses providing free advice and assistance.

6.    A dispute resolution system staffed mostly by volunteer family lawyers assisting parties with early resolution in a low-key, non-adversarial setting.

7.    Family Law Rules that punish those who do not make early and serious offers to settle through costs.

We as family lawyers, along with many members of the judiciary, have contributed greatly to improved access to the family law system but we should not be actively encouraging self-represented litigants.

I have previously written about what I consider to be the serious adverse consequences to our justice system of the self-represented litigant. The absence of legal knowledge and regard for the legal process and the rules of evidence, the elimination of respect for stare decisis, the bending of the traditional judicial role to accommodate those who do not know what to do or how to do it in court, and, finally, the enormous waste of court resources in trying to tutor the untrained in a complex process are problems caused by self-represented litigants that we should not be encouraging.

Family law is in fact law. The practice and process require a working knowledge of numerous statutes, case law, and related fields such as tax, corporate, property, and, at times, bankruptcy matters. Rather than encourage self-represented litigants, even the most educated of whom cannot navigate this difficult field, we should lobby for increased legal aid funding for family law; advocate for a unified family court system provincewide; seek an immediate technology upgrade to bring the court system into the 21st century as the wasted time involved in paper filings, lost files, and copying briefs adds layers of unnecessary costs to the process; institute a triage system to identify and stream high-conflict cases early on; start an immediate review of some of the regulatory demands upon lawyers that tend to drive up the cost of operating a law office; and permit and encourage the unbundling of legal services in the family law field.

We do a disservice to the public and our justice system by tacitly encouraging self-represented litigants. The long-term result is the destruction of the legal system as we know it. We must work diligently to improve the system and the quality of services we provide to the public but we should never abandon the field to self-represented litigants or untrained family law professionals who continue to appear with ever-greater frequency.

Gary Joseph,

MacDonald & Partners LLP

Toronto

  • Rob N
    Let me tell you the difference between dentists and lawyers since this writer seems blissfully ignorant.

    Dentists are close to being 100% competent
    Family Lawyers are close to being 100% incompetent

    Dentists costs are covered mostly by an employer if the person is employed.

    Lawyers costs are not covered at all.

    Most people can't do their own dental work.
    Most people can and are often more competent than lawyers in family court.

    Thanks for the opportunity to educate you.
  • Richard Chmura
    No one needs to perform dentistry on themselves because dentists are do not profit from the business of helping their clients punch out self-dentists' teeth in front of a judge. AndrewsAnswer.com
  • Russo
    The best solution would be to be represented by a lawyer. Not any lawyer. I am afraid the big majority of lawyers are moreabout money grab than deal with the client. They consider one as ATM. Notice that among the dishonest majority, the minorty will be dragged willy, nilly. who is finally squashed the poor working to the enrichment of both lawyers. The honest does not mind to..
    In my opinion, family law should not be terribly hard. The lawyers, if both sides are keen, they could solve five most important family issues in five weeks, one issue a week, way before going to court(access, Custoty and support. A factor of the clients also help to speed up and find a solution. Anyway, how could one become deadly enemy, especially those ones with a child or lived togather for years and years. Life is too short to get entagled in the web of haterd.
    That is my take!
  • oneil
    Glad to see the self serving contractors with a monopoly to on the provision of legal services think of us as their chattle property.

    The BAR and it's members have failed in their mandate to impartially administer justice. In practice the BAR and it's members enrich themselves while attempting to subjugate the rest of us.

    Wait for it boys and girls. Tyrants are always deposed.
  • Sue Lessard
    I represented myself in a family law situation, dealing with back support. I had no problem whatsoever. I did all the paperwork, did the serving, did the filing, showed up at court, did the cross examination, called the witnesses, crossed examined his witnesses. No problem, I won more than I was asking for!!!! Only lawyers will tell you, you need a lawyer. Anyone can do this!
  • Colin Pye
    Self-represented litigants often throw themselves under the bus by their own ignorance and inflexibility in pursuing "justice"--better understood to mean personal emotional vindication--instead of their own best legal interests. The consequences in family court, unfortunately, reach far beyond wasted court time into broken families and lives.
  • Jane Scharf
    I notise he talks in black and white represented by someone with a legal knowledge base or self represented. A self represented litigant does have the option of consulting with a lawyer on the preparation and execussion of their case. One can even hire a lawyer to be there at a court proceeding to provide consultation. And nothing is mentioned about the devastating effects of being represented by an unscrupulous lawyer. At least when one is self reping they know that they will not be thrown under the bus.
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