What should we do about self-represented litigants (SRLs)? Amid a backdrop of skyrocketing legal fees, decreased public funding, and a resultant wave of self-representation, this question seems to be on every reformer’s mind. Countless reports, working groups, and studies have asked this question, and reached diverse and creative conclusions. However, these papers often share one critical failing: none of them actually ask SRLs what they think.
Enter the Self-Represented Litigants Project (Dr. Julie Macfarlane, “The National Self-Represented Litigants Project: Identifying and Meeting the Needs of Self-Represented Litigants“, May 2013) Dr. Macfarlane’s insightful Report has a premise that is as ground-breaking as it is simple – if we want to know what SRLs want and need, we should ask them. In doing so, the Report shakes off the often unidentified but misguided presumption that a lawyer’s intimate knowledge of the justice system translates into an understanding about an SRL’s experience.
The Report itself is a qualitative study chronicling the experience of over 250 SRLs in Ontario, Alberta and British Columbia. Dr. Macfarlane’s insightful Report has a premise that is as ground breaking as it is simple – if we want to know what SRLs want and need, we should ask them. Through the surveys and interviews conducted, the Report raises many interesting issues beyond the scope of this article. The following paragraphs highlight some of the most thought-provoking requests and suggestions SRLs believe would assist in navigating the justice system.
So, what do SRLs actually want?
Clear and Practical Legal Information
We are failing to provide SRLs with practical, readable and consistent legal information. This complaint was repeatedly raised across all the sources of legal information available to SRLs:
- Court forms are unnecessarily complex, use legal jargon and contain unhelpful notations.
- Information from court staff and judges is often inconsistent.
- Self-help materials are overwhelmingly focused on substantive law at the expense of much more practical nuts-and-bolts concerns. For example, SRLs repeatedly asked for information on how to fill out forms, where to file court documents or find their courtroom, and how to initiate procedures like a court application or mediation.
An Explanation of the Difference Between Legal Information and Legal Advice
Court clerks are permitted to provide legal information, but not advice. While simple on its face, this rule quickly dissolves into an unworkable chaos when an SRL tries to file a document. Is telling someone how to organize their affidavit “legal advice” or “legal information”? What about explaining how to validly serve an evasive defendant, or how to effectively present pleadings?
There is no clear guidance as to whether or not a clerk should answer these questions. Amidst this ambiguity, receiving a meaningful response depends almost entirely on the particular clerk approached, and the persuasive abilities of the SRL. Court clerks (who were also interviewed in the Report) and SRLs agree that there is a desperate need for clarity on this distinction. Failing to do so breeds frustration and uncertainty for everyone.
[Editor’s note: For one related tool, see this tip sheet from CPLEA: Legal Information vs Legal Advice: What is the difference?]
Seminars and Coaching
Courthouses are an arena with a specific form and language. If you don’t speak that language, (and most SRLs do not) you will not get very far. SRLs know this, and they are willing to work to better communicate with the court. Court clerks are permitted to provide legal information, but not advice. While simple on its face, this rule quickly dissolves into an unworkable chaos when an SRL tries to file a document. In recognition of this desire, many SRLs asked for guidance and coaching on what to expect in starting an action and effectively presenting their cases.
This guidance may take several forms. The most interesting suggestions involved courtroom seminars, one-on-one coaching, or even a peer support community. The topics could cover general issues like courtroom etiquette and tempering expectations, but could also tackle issues like how to approach settlement or seek mediation.
Everyone acknowledges that lawsuits are stalled when one side does not know how to present their case. Educating and supporting SRLs can go a long way in increasing courtroom efficiency and decreasing everyone’s frustration.
A Different Approach to Legal Services
SRLs (and increasingly, represented clients too), have grown tired of the traditional solicitor-client relationship and fee structure. For SRLs this dissatisfaction expresses itself through a desire for Limited Scope Retainers and assistance from non-lawyers. SRLs are begging to deal with non-lawyers (paralegals and/or agents) to help provide practical assistance in preparing their cases. Ontario has heard the call and now regulates paralegal dealings with SRLs.
Limited Scope Retainers
For those who aren’t familiar with the term, Limited Scope Retainers are a limited solicitor-client relationship. Clients hire counsel to assist with part, but not all, of a legal action (for example, drafting pleadings or conducting a special chambers application). While law societies have permitted the practice, fears and uncertainty from provincial bars have left the concept largely stagnant.
For their part, SRLs were blown away that lawyers were unwilling to take their money to help with portions of a case. The idea that legal representation is “all or nothing” was not only vexing to SRLs, but practically speaking, it left them with no alternative but self-representation. With increasing clarity, Limited Scope Retainers have the potential to serve a vast unmet legal need.
SRLs are begging to deal with non-lawyers (paralegals and/or agents) to help provide practical assistance in preparing their cases. Ontario has heard the call and now regulates paralegal dealings with SRLs. As such, Ontario paralegals can help SRLs prepare legal documents and represent clients in certain proceedings. Other provinces, like Alberta, have failed to take this step. This failure drives practical questions to court clerks who, as discussed above, are having a very difficult time discerning the boundaries of their ability to help.
To be Treated with Respect
SRLs were shocked at the way they were treated by justice system insiders. Of course, many legal insiders (judges, lawyers, and court staff) are extremely helpful and patient when dealing with self-represented parties. Equally obvious is the fact that civil or family litigation is not a place to make friends. With that said, many SRLs reported being treated in a way that stretched beyond the bounds of civility and into basic rudeness and disrespect.
When we lawyers get yelled at by a judge, we shake it off because, at the end of the day, this is a job. When an SRL gets yelled at, it is often about a fundamental aspect of their life (especially in a family law context). These people found the courtroom a life-altering and traumatizing experience. While lawsuits are an inherently adversarial process, basic civility goes a long way in demonstrating that the justice system belongs to the public, not legal insiders.
What We Can Do
Some of the suggestions outlined above, like the idea of courtroom seminars, are innovative and relatively uncontroversial. …civil or family litigation is not a place to make friends. With that said, many SRLs reported being treated in a way that stretched beyond the bounds of civility and into basic rudeness and disrespect. Others, like Limited Scope Retainers, tend to create pushback from legal professionals. Whatever one’s view of the recommendations, its premise is unshakable. We cannot hope to address SRL needs without speaking to them. Necessity is increasingly forcing the legal profession to recognize that it cannot stand separate and apart from the public it serves. SRLs are not going anywhere, and ignoring their needs will not make them go away. By engaging in meaningful and respectful dialogue, we can move towards workable solutions.