Speaker's Corner: Bar must examine its role in adapting to self-represented litigants

There’s a revolution happening in our courthouses that will affect every aspect of the delivery of legal services and justice processes over the next decade.

Self-represented litigants in family and civil court are gradually outnumbering those with legal counsel. The National Self-Represented Litigants Project is currently documenting their stories.

We are exploring with respondents the difference between their expectations and the reality of their experiences, as well as their motivations, fears, and challenges.

When I first approached government and other potential funders with this research proposal a year ago, the response of many was that they were too busy trying to develop resources for managing self-represented litigants to study them.

The problem is that we think we already know how to fix the problem — or at least slap a Band-Aid on it — by developing information-type resources for those representing themselves.

But is the answer really that simple? Don’t we need to first know more about just why people are turning in increasing numbers to self-representation? The law foundations of British Columbia, Alberta, and Ontario have now generously provided funding for this study.

There’s little documented on the precise numbers of self-represented litigants in our courts. While the numbers vary somewhat between jurisdictions, the trend is clear. In the family courts, where self-representation has historically been most common, the numbers are staggering.

In California, for example, those representing themselves constituted one per cent of all litigants in family court in 1971. By 1992, this had risen to 46 per cent and later 77 per cent in 2000.

Reports suggest that from 1995 to 1999, the actual numbers of self-represented litigants in Ontario’s Unified Family Court rose by 500 per cent. The same trend is spreading to the civil system.

In order to understand the experiences of self-represented litigants, I am using personal, semi-structured interviews and focus groups to gather data in British Columbia, Alberta, and Ontario.

Since respondents must consent to an interview, there’s an inevitable element of self-selection in a study of this type. The credibility of our results depends on the depth and the consistency of the experiences reported and, to a degree, the representativeness of the sample group.

Interviews generally last from 45 minutes to one hour and we note them contemporaneously in exhaustive detail. All interviews and other communications, such as e-mail or discussions on the project’s Facebook page, are being entered into a software program that codes and analyzes qualitative data and sorts for themes and patterns.

Hundreds of people are coming forward to tell their stories. The level of response reflects just how many people are facing the growing gap between what they can afford or are willing to pay for legal services and the cost of hiring a lawyer to represent them in court.

We have already completed more than 160 interviews and have a long wait-list. We have also conducted a further 50 interviews to date with agencies providing services to self-represented litigants.

At this stage of the research process, prior to formal coding and analysis, what has struck me the most is the level of trauma experienced by so many of these individuals and how many seemingly polite, rational, and upstanding citizens are angry about their experience of access of justice.

Some declare themselves, only partly tongue-in-cheek, to be victims of “post-traumatic court syndrome.”

It would be a grave mistake to assume that the people I am interviewing are all crazy, stupid, and alienated, which is a common characterization of self-represented litigants.

Certainly, there are individuals in the sample, just as in the wider population, who have personality disorders or anger-management issues, but it’s erroneous to assume that these are the only people who find themselves in court without a lawyer.

The overwhelming majority of those I have interviewed so far aren’t crazy, stupid or alienated. More than half have a university education, although, as one person put it to me, “This is a system that makes smart people feel stupid.”

Many began with great confidence in the justice system and passionately want to believe in it again. Many, however, are now frustrated and exhausted by what several describe as the most humiliating experience of their lives.

At the same time, they have a laundry list of fairly consistent complaints: the procedures are arcane and confusing; pro bono assistance is minimal; the burden of time and energy on those with any other obligations is almost intolerable; the emotional and financial costs of protracted conflict are too high; and lawyers and judges are often dismissive and unhelpful.

There are no easy answers here, but the first step is to understand what this experience is like for system outsiders.

If we’re serious about access to justice, we must accept that those without legal representation are about to become the majority in our family and civil courts and we therefore need to prepare to engage in a genuine dialogue with them.

This genie isn’t going back in the bottle.
Self-represented litigants want timely and effective justice, just like represented parties.

Instead of being defensive or dismissive, it’s important for the bar to think about what these criticisms mean for how lawyers make themselves relevant to 21st-century clients who can find content on the Internet and don’t understand why they should pay $300-500 an hour for form-filling and filing.

How do we convince people that lawyers are worth it? And how do we ensure that they really are? The future of legal services lies not with marketing content or process but in advocacy and counselling that reflect expert knowledge as well as strategic and supportive assistance in decision-making.

Are we ready to face the challenge self-represented litigants present? Are we ready to ask ourselves what the justice system would look like if we designed it to meet the needs of self-represented litigants rather than trying to squeeze them back into the existing structure?

Julie Macfarlane is professor of law at the University of Windsor. She’s undertaking the project with the assistance of project co-ordinator Sue Rice and research assistants Raman Pandher, Lois Li, and Kyla Fair. For more information, visit the project web site at representing-yourself.com.

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