‘We are both blessed and cursed in Ontario,’ a lawyer says
Even if a potential client is unable to enter a retainer, there are many ways that lawyers can help self-represented litigants, said members of an access-to-justice-themed panel.
The Oct. 29 panel, part of Access to Justice Week by The Action Group on Access to Justice at the Law Society of Ontario, included Janis Criger, Hamilton Small Claims Court/President, Ontario Deputy Judges Association; Tami Moscoe, Senior Family Counsel, Office of the Chief Justice, Superior Court of Justice; Joel Miller, founder, The Family Law Coach; Heather Hui-Litwin, co-founder, Self-Rep Navigators Association; and Noel Semple, Associate Professor at the University of Windsor Faculty of Law.
It’s important for judicial officers to remember that litigants are coming to court for a better way to solve problems amid a society that “tends to use baseball bats to resolve disputes,” said Criger.
“It’s never the case that someone should be looking at a self-represented litigant as some sort of threat or menace. They are someone who needs help solving a problem,” Criger said at the event. “Unbundled services are very important . . . . and very underutilized.”
While many lawyers might take an “us versus them” view of helping a self-litigant, Hui-Litwin noted that when she was a self-represented litigant in law school, she was struck by the stigma faced in court. She said it’s important to avoid the misconception that a litigant is self-represented because no one would take their case.
“I can see how a layperson’s perspective would be different from my colleagues who start in law school at the age of 25,” said Hui-Litwin. “In the world of civil litigation, one of the things I remember was that we were full clients — regular clients under a traditional retainer. The legal fees spiralled out of control — that happens a lot — and we became self-reps that way.”
Once lawyers shed the misconceptions about self-represented litigants, it might be easier for them to envision providing alternatives to traditional retainers, such as legal coaching, ghostwriting, or unbundled legal services, said Miller. He suggested turning the legal model on its head — rather than the lawyer dictating the terms of the transaction, the lawyer views themselves as the service provider to the client.
“We are both blessed and cursed in Ontario. As near as I can tell, we have more services, more information, for people acting for themselves, than most jurisdictions in North America,” said Miller, citing Community Legal Education Ontario and Ontario's Family Law Limited Scope Services Project.
Miller noted that under a “legal coaching” program, litigants can feel more open to asking questions about procedures and how to interact with judges. He cited the adage ”Give a man a fish and you feed him for a day; teach a man to fish and you feed him for a lifetime.” Unbundled legal services are akin to selling fish while legal coaching is selling fishing lessons, Miller suggested.
“For reasons that are mystifying, most people in family court don’t realize the resources available to them,” Miller said.
Another responsibility for lawyers is to keep on top of the resources available to self-represented litigants — a library of resources that is quickly evolving, said Moscoe.
“The goal is to make it easier for the litigant to get the help they want, when they want it,” said Moscoe. “People have been informally offering unbundled services since at least when I was called in the late 90s . . . . The coaching model is quite innovative and quite different.”
Legal regulators have a role to play as well, said Semple. As a self-regulated profession, lawyers have to be wary of the appearance that they have “skin in the game” when it comes to limiting competition.
“We need a consumer interest framework . . . high-quality services, informed choice,” said Semple. “When a self-regulatory organization is doing that, it’s important to avoid the appearance and reality of a system that is behind closed doors.”
For example, Ontario, which has led the way in regulating paralegals, has taken years to perfect the scope of paralegals in family law. There are both upsides and downsides to Ontario’s strict licensing model, which may not have the flexibility offered by jurisdictions such as England and Wales, said Semple. When reviewing applicants to law school, Semple said he sees potential lawyers who ultimately do not attend due to cost or high admissions standards.
“We need to think really hard about whether we can make these ladders [into the legal professions] wider, whether we can have more ladders, whether we can do anything to get the supply of people who want to help to meet the demand,” Semple said. “Licensing is a particular type of regulatory regime and it’s one that places high barriers. . . the law society has come a certain way but we are not there yet.”
Even litigants who are represented can benefit from public education on the legal system, said Hui-Litwin. For example, legal education can improve the trust between a litigant and their lawyer, she said.
Criger added that lawyers’ temptations to take over complete control of a case can seem “alienating,” and Miller said that the confidence required for litigation may come off as arrogance in the eyes of clients. Unless the client can recognize the art required for good legal work, they may feel they are being “milked” for money, said Hui-Litwin.
Another issue faced by lawyers is facing an unrepresented litigant in court. In those cases, clients may feel that the case is becoming more expensive because of the time required to deal with the unrepresented litigant on the other side, noted Moscoe. Criger said that LawPRO’s guides on the topic are useful.
In addition to NSRLP, CLEO and FLLSS, clinics and law students can also be good resources, said Hui-Litwin and Moscoe.
“We need to encourage more and more people to ask for the resources, and we need amongst the profession, frankly, to recognize there are twice as many people representing themselves than hiring lawyers,” said Miller.