Letter: Don’t encourage self-represented litigants

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

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