Why people representing themselves in court are clogging the justice system - Macleans.ca

Why people representing themselves in court are clogging the justice system

Do-it-yourselfers flood a system set up for lawyers and judges

Simon Hayter

Alison MacLean (Photograph by Simon Hayter)

She has been threatened with abduction, shaken down for bribes and stopped at gunpoint by hostile police. But nothing in Alison MacLean’s work as a combat camerawoman in Afghanistan has proved as scarring as the legal battles she has waged on her own behalf in B.C.’s family court system. They began in 2008, when after a messy divorce, MacLean learned at the last hour that her ex-husband was applying for the forced sale of their house. She was in hospital at the time preparing for a knee-replacement surgery. Instead, she raced to Vancouver’s Robson Street courthouse in time to attend a registrar’s hearing, where she succeeded in getting the action set aside. “My lawyer told me she couldn’t go speak for me that day,” recalls MacLean, 53. “I had no choice but to go. It was the first-time I self-repped, and it was a success. For me, that was a turning point.”

Three years on, MacLean is still fighting her ex in court, representing herself in all but the most complex proceedings. “I’m your average, middle-class working mom,” she says. “I don’t have access to huge amounts of money.” And while she’s honed her skills over 10 court appearances, familiarity hasn’t enhanced the experience. The justice system, she says, is set up for lawyers, judges and clerks—more than a few of whom make no secret of their exasperation with self-represented litigants. She can research case law, swear an affidavit and file documents as expertly as a paralegal. But when asked what it’s like to navigate this bewildering subculture on her own, MacLean doesn’t hesitate: “I prefer being in Afghanistan.”

It’s the sort of sentiment heard often these days as more and more Canadians plunge into the rabbit warren of the justice system alone. More than half the litigants in family courts, and as many as 40 per cent in civil court, are representing themselves, according to recent studies in B.C., Alberta and Ontario—a much higher proportion than did so 10, or even five, years ago. The result, say senior members of the legal profession, is unprecedented delays, bottlenecks and overall strain on the judicial system. As early as 2007, the chief justice of the Supreme Court, Beverley McLachlin, warned that do-it-yourselfers were “working their own special forms of injustice,” because their proceedings “adjourn or stretch out, adding to the public cost of running the court.”

Yet the growth in so-called “self-repping” has gone on unabated. In a survey performed last year, 84 out of 132 litigants approached randomly in Ontario courthouses said they were representing themselves, taking advantage of the ready availability of information online, and research skills learned in university. With similar trends under way in other developed countries, some experts believe we’re witnessing a transformative moment—one no amount of wishful thinking on the part of lawyers and judges is going to stave off. “It’s almost as if the legal profession has been sleepwalking through this,” says Julie Macfarlane, a University of Windsor law professor studying self-representation. “It’s like a revolution, except that, unfortunately, these are not very skilful revolutionaries.”

Indeed, if Macfarlane’s work is anything to go by, many are acting out of financial necessity. Over the last year, she and her team have interviewed 285 self-reps in three provinces, many of whom ran their bank accounts dry paying lawyers in earlier stages of their cases. That left them in limbo: while 40 per cent boasted salaries of more than $50,000 annually, their relatively healthy incomes disqualified them for legal aid, which most provinces now deny to all but the most cash-strapped litigants. With lawyers’ fees running about $400-$600 per hour, some faced stark choices. “It was keep fighting on my own or lose custody of my kids,” one Ontario litigant told Maclean’s. “It was really the only option.”

Financial pressures, however, are only part of the picture. The growth in self-representation also reflects a phenomenon economists call “disintermediation,” where savvy people obtain goods and services without the help of middlemen. With most provinces providing legal resources online, notes Nick Bala, a Queen’s University law professor, the deference once accorded to trained professionals is falling away. “The days of lawyers pulling down a book and saying, ‘I’ve got information you don’t know about,’ are over,” he says.

Whatever their motivations, the do-it-yourselfers are having a profound effect on courts. David Price, a Superior Court justice in Ontario, figures about half the litigants undertaking family and civil law motions in his Brampton, Ont., courtroom are doing so on their own. “If they’re not able to supply the necessary evidence and legal argument, the judge’s task and the time required to perform it will be greater,” he said by email (Price stressed that his remarks were based on his own experiences, and that he is not a spokesman for the court). Self-represented litigants are less likely to settle out of court, the judge added, and the delay causes frustrations for everyone involved. “The judge is disappointed to find that fewer cases on the list settle,” he said. “The litigant is disappointed to find the judge cannot decide the case immediately.”

There’s no reliable proof, alas, that the gamble of going it alone pays off. The few studies available comparing outcomes suggest self-represented litigants spend more time in court, and win lesser awards, than those with lawyers. What’s more, many self-reps emerge from the process wrung out. Tim Summers, an Edmontonian who self-litigated the division of his matrimonial property two years ago, believes he got a reasonable agreement. But the 52-year-old college instructor winces when he recalls the ordeal: “I truly believe I became borderline psychopathic,” he says. “I felt so frustrated, so limited in what I could do. I could write a blockbuster story about the nasty, mean thoughts that went through my head.”

Many in the justice system are trying to help—alert, seemingly, to Macfarlane’s warning that “this genie isn’t going back in the bottle.” Most provinces now have family court clinics and telephone hotlines where litigants can get basic legal advice. In B.C., the justice department has launched a network of resource centres, where litigants can set up in a cubicle and get advice from roving advisers. Judges like Price, and some lawyers, are also making extra effort to accommodate self-reps.

The result, says Bala, may be a hybrid justice system which encourages self-litigants to handle simple processes, while having lawyers handle matters involving complex legal principles. This idea, known as “unbundling,” is already in practice in many parts of the country (Summers and MacLean, for example, have both found lawyers willing to provide limited advice while letting the clients handle filing and court appearances). But the system still has a long way to go, says MacLean. Most times she steps in a courtroom, she senses a chill from opposing counsel, court staff or the bench, and she braces for the worst. “I’m used to taking bumps on the job, being alone in the middle of nowhere,” she says. “But you shouldn’t be so beaten up and broken down by a system that you’re relieved to go back to a war zone.”


Why people representing themselves in court are clogging the justice system

  1. It seems strange to me that we allow lawyers to run wild with billing and behaviour. The law society seems to protect lawyers not the public. This is the problem. Lawyers need to be governed by impartial and swift tribunals made up of people from all segments of society. We have legislation in almost all provinces to keep so called greedy all powerful landlords from taking advantage of less powerful tenants. There is reasonably swift action on complaints and the landlord if deemed by rentalsman office to have taken advantage of the tenant; then penalties are imposed upon the landlord and the tenant is ordered to be reimbursed. We don’t allow landlord associations to address tenant complaints. WHY WOULD WE ALLOW LAWYER SOCIETIES TO ADDRESS COMPLAINTS ABOUT LAWYERS????
    The public needs to take back control of the legal system. The lawyers have stolen it.

    • I had a dispute with a BC lawyer about fees and looked into taking it before the appropriate tribunal. It turned out that they wouldn’t even hear the case unless the amount at issue was a substantial percentage of the fees; and even if they found in your favour, the defending lawyer could then bill you for his time defending himself!

  2. The cost of legal proceedings is definitely a problem in Canada, but it’s not one with a clear solution. Unfortunately, fair systems with predictable outcomes are also complex, lengthy and expensive systems, and vice versa.

    • – they don’t have to be – Montague Student Trial -http://www.rudemacedon.ca/greenisland/ex/gw20.html .

  3. The ‘spirit of the law’ unfortunately, has been lost through-out the world. There is no law only chaos!. No lawyer can simplify a case, because of the case-law they have to reveiw, which in turn, they should memorize. Heavens forbid! Let’s face it, politicians are lawyers and they cannot remember what they said or did yesterday.

  4. This comment was deleted.

    • Good to see you prevailed. Two thumbs up.

      • I can’t believe they deleted my comment.

  5. The temptation to hire a pack of bikers to go after your opponent is driven by the high costs, in time, effort, money, and whatever else, to seek supposed ‘justice’ in our judicial system.

  6. I have been through divorce proceedings twice. The first time, nothing was in dispute and I represented myself at the pro forma trial that was still necessary in those days. When the day came, the judge moved my name to the bottom of the list so that I could spend the afternoon watching cases, even though I explained to him that I had already spent a day in court doing precisely that. (Incidentally, it was quite amusing to see the berobed lawyers in other uncontested cases strutting around and putting on an unnecessary show for their clients, to justify their fees.) Then when my case came up the judge conducted it for me and it was over in fifteen minutes. He was simply punishing me for going outside the system, while making sure the plaintiffs who had hired lawyers were gone by the time my case came up. At least I had the satisfaction of getting divorced for less than $50.

    The second case was more complex and I had to hire a lawyer or rather a succession of lawyers in the quest to find someone who would actually get the case moving. It took two years just to get my lawyer to talk to opposing counsel, while both sides racked up bills in proceedings that could have been avoided with a simple phone call. It took two more years to reach a settlement that did not entail simply accepting all my wife’s assertions, which is what one lawyer counselled after charging me $800 to read my file and take her opposite number out to a cozy lunch. What I learned in that time is that lawyers act for themselves first, for their opposing colleagues second, and for their clients third. I also learned that the Law Society exists solely to protect lawyers from their clients, rather than the other way around. The whole system is designed to maximize lawyers’ fees. So it irritates the hell out of me to read that self-represented litigants are somehow “clogging up” the system. If anyone is clogging up the system it is the lawyers and the judges who enable their procrastinating tactics.

    • Hear hear! I would not wish divorce on anybody because I went through it myself. That said, my divorce cost $1200 and was handled by a great lawyer who also happens to be a really great human being, Reality (the law) and civility (acceptance) have a pedestrian intersection that lets you cross the street when you don’t have a lawyer car. Sometimes you need help though.

      Some of his best advice has been free. The very best legal advice I have found has been free – the internet, the university law library, and one lawyer in the courtroom lobby who didn’t know who I was (and really didn’t want to know) but just admired my moxie after I had defeated another motion to dismiss.

      My first comment here about the legal profession was obviously too caustic. I will be more careful.

      This article was so offensive to me. It is not people who are representing themselves that are clogging the courts. It is the legal guild. It is too important to be called a union and too self important to face reality.

  7. 1. $400-600/hr? For family and small claim proceedings? Everywhere in the country? For every lawyer? Nooooo….The larger point that lawyers are often unaffordable remains accurate, but quoting an inflated hourly average obscures that point.
    2. In my limited experience with self-represented parties, they would be well-served by understanding a few bedrock things:
    -typically, lawyers (good ones, anyways) don’t take easy or obvious cases to court – they settle – and the courts are there to test complex questions of fact and choosing between competing reasonable applications of the law to the facts that stand up
    -lots of expensive public resources go into the justice system, which can (or should) make courts rightly focus on streamlined and cost-effective procedures
    -the process needs to allow both sides to be heard
    -evidence and argument are different things, and evidence needs to be tested and proved

  8. Why people representing themselves in court are clogging the justice system

    My last Lawyer was a complete and utter liar, who lengthened my case considerably. Then I got smart, collected evidence against “IT”, and hung “IT” and the other dimwit lawyer out to dry.

    Then again, the law used was unconstitutional, so the politicians are also dimwit liars.

  9. I have heard of divorcing couples going to an arbitrator and working out a settlement before they ever even file for the divorce. Wouldn’t this expedite everything?

    • If the parties are civil it should. My ex & I went through that process a couple of years ago and it saved us a bundle. But our friends all said that ours was the most amicable split they’d ever seen, so results may not be typical.

      I believe arbitration is now required in Ontario until the arbitrator says s/he cannot possibly reach a settlement with the litigants.

    • The big problem with family law cases is that they’re riddled with emotion, which usually inhibits rational decision making.

      • Agree. From what I have experienced and seen divorce is significantly influenced by emotions and finances…..neither of which are given the attention required so that partners can part peacefully…at least not in present system.

        • Your gonna have to expect a lot of emotion when the mother (who almost always causes the divorce) goes into court asking for 100% custody of the children and the father there, (knowing full well the blatant and malicious ‘mommy-bias’ that exists) further knows judges ALMOST ALWAYS punishes the children and removes them from access to their father, simply by virtue of his gender.

    • Arbitrators & mediators these days seem to be lawyers….or working in partnership with lawyers/law firms….from what I have been told by clients who have used them it just seems to cause more delays, stress and cost for the couple. I’m told by those who have tried Collaborative law that it appears also to be less of a solution and more so a marketing strategy for more business by the legal profession. The future in this area I believe will be determined by the divorcing couples as they try to navigate through this themselves. A solution will emerge quickly as the mere masses of divorcing couples see out “the way/process/provider” that works and achieves the end goal of partners parting peacefully.

  10. The justice system could do itself a big favour by working to simplify routine legal proceeding for self-represented applicants. Things such as divorces are an example – why not produce a kit of material that would guide applicants through the proceedings? Such kits are already available in bookstores, but they could be better. Look at Revenue Canada’s tax guide for an example of how this could be done.

    • TurboTax should create a software for TurboDivorce. It would fly off the shelves.

  11. We need to CAP legal fees to the price of an average car. No higher than that.

  12. Raise the “You have to be this poor to get a free lawyer” limit, and you’ll stop seeing this. Until then, Fight-On Middle Class People!

  13. Lawyers and Judges have for too long set up rules of procedure that allow delay, technicality and flat out obstruction to run up the costs of legal disputes. All to the benefit of lawyers and judges (who were all at one time lawyers). The whole system of civil law procedures should be thrown out and a new start made with plain language, specific time limits to proceed and where a group of judges ask questions and demand evidence. The lawyers should be banned from the court.
    Criminal law procedure is just as bad and needs a complete overhaul.

    None of this will ever be done by the legal profession or judges. As with a Constitution it needs a citizens assembly to create it.

  14. Every step that has been added to the process for people entering the family law court appears to be an effort to help couples resolve their issues out of court. At first it was the lengthening of the process before you got before a judge and then more recently to require couples to participate in mandatory mediation sessions. So, firstly the lengthening of the process has done nothing to help in the resolving of conflicts between the couple….it seems to have merely created more legal bills for the couple. Secondly, the mandatory mediation is pointless given that they have already entered the adversarial process and their conflicts been escalated by their respective lawyers in each corner of the ring. Mediation might have worked, but now it and the mediators have become part of the legal process, therefore part of the problem. Our legal system has taken action by implementing changes to push couples away from the court room. For every action there is a reaction. With the couple’s dwindling financial resources and conflicts still to be resolved self-representation is the reaction.

  15. “Flooding the system” as a pro-per is not a problem for them in fact,
    this is exactly, precisely the way the corrupt family courts actually want it! Can you say good for business? Lots more money to be extorted from innocent fathers and all the while the judges put up a smoke screen by complaining they are *so overworked* AND THE BASTARDS WANT IT THIS WAY!!!

    If they were truly interested in doing their jobs (without breaking the law for once)
    they would streamline every single step and make it as easily as possible for the lay person to have their ‘day in court’ but the complete opposite is the reality in family court. Judges ignore, set trial dates a year into the future, grant continuance after continuance, delay, obfuscate and downright stall as long as they can possibly get away with. Lots more money will leave the fathers wallet during that interim. And who but the corrupt judges are responsible for that I ask you? Thats right, judges and of course the equally corrupt lawyers…

  16. In Ontario the growth of the paralegal industry should help with some of this pressure. Paralegals tend to charge far less then lawyers and have the same skill sets within their scope of practice

    Currently paralegals are not authorized to practice family law, but with pressure from the public this will change.

  17. The “problem” is not people representing themselves; it is a legal profession that has been permitted to grow into a predatory, unethical and immoral, self-regulated, self-serving, quagmire. And all of this dishonesty and dysfunction is shielded because of a lack of public transparency and scrutiny due to media and legislator fear.
    The various politically and legally powerful Law Societies act above the law, with total impunity and form a “thick blue line”. The threat to any media outlet or elected representative who would try to come up against them is overwhelming. Our civic leaders have simply allowed the courts and the legal profession to become a law unto themselves and we are all paying dearly for it.

    Until our legislators confront the real problem, an out-of-control legal and judicial profession, we can expect more and more people to chose the do-it-yourself route, as they must.
    But don’t be surprised when the next shoe drops, which is the whole intention of all of this tut-tutting ~ our cowed legislators will soon be pressured by the lawyers to make more laws designed to keep private litigants out of the courts completely. Here in freedom-loving Alberta we already have dozens of “commissions” and “agencies” that we are “required” to use that are designed to do just that.

  18. WHY WOULD WE ALLOW LAWYER SOCIETIES TO ADDRESS COMPLAINTS ABOUT LAWYERS???? The public needs to take back control of the legal system.

    The lawyers have stolen it.

    “And they have no shame in promoting their own self-interests.”

    Well noted Mr. Jordan

    Toronto, Ontario, Canada

  19. DR.EKAKA I thank you for your help that you redered to me last month i am very happy that my mother in law now love me more than ever before and my husband now listen to me and also he do not want to hear anything bad about from any of his friend that was telling to leave me before now thank you so much ekakaspelltemple@yahoo.com you are the best.

  20. We the self-represented have a new communication tool – it is called the internet. We need to document the abuse by court personnel, lawyers and judges and communicate the documented facts as widely as possible. Another reason to document the abuse is for the purpose of informing those who prey upon us that we are keeping track. Sure they all think we are idiots, which is very hard to take from judges and lawyers who can’t read legislation and court personnel who are nothing more than jumped up clerks. However, we can stand up on our hind legs and inform of the right to file a civil action against judges who act without jurisdiction which will be heard by judges in this country but nonetheless it must be done. Also, we can inform of the legal basis for making claims of misfeasance in public office against government employees which will be heard by judges under the control of, oh excuse me, appointed by the government. Again, it must be done. Remember that famous movie line by the newscaster “I’m mad as hell and I’m not going to take it anymore”. I don’t think anyone will argue with the fact that accepting abuse leads to more abuse. If we want respect we must fight for it. Thanks to Macleans for letting us know we are not alone in our war against the legal system.

    • All canadians should stand up for their rights to a fair and impartial judicial hearing, We should be united and expose the corruption we are faced with by these judges and lawyers on the internet so they know they are being watched. Justice should be for everyone, not only the rich and those with connections within the Judicial circle.

  21. We continue to go through the twisted denial of justice within the BC justice and legal system as self represented litigants. We started out with a Lawyer representing us but were forced to continue as self represented litigants due to the high legal fess of this law firm.

    As self represented litigants you are treated very badly and given the run around.

    Opposing counsel later took his clients file to the same law firm that was representing us in this civil litigation. The difficulties and road blocks as self rep.litigants in the legal system took a toll on us, we signed up for a prepaid legal membership and retained a lawyer through them(wrong decision).

    Opposing lawyers whose clients are wealthy and have the backing of the Error and Omission insurance, have judicial connection and made our lives miserable, The material and document evidence was covered up, there was perjury. Each time an honest judge would show fairness, for some reason they were removed from the case. The day of trial the Scheduled Trial Judge who already reviewed the file was reassigned, we had to wait in the lobby until opposing counsel informed us a new judge was found.

    We feel the scheduled trial judge was removed because a BC Supreme Court Judge denied Opposing Counsels application to throw out evidence and stated she was leaving notes for the scheduled trial judge. Opposing Counsels were very upset. The day of trial they finally got a judge to their liking and from that point on we were doomed. The same evidence the previous judge refused to throw out, was throw out. The new judge had already decided against us before trial started. Material and documented evidence was covered up, the rule of law was ignored, testimonies were distorted and fabricated, false undocumented submission by Opposing Counsel was adopted by this judge. Even though we had all the hard and documented evidence before the judge, he ignored them and ruled against us. Our prepaid lawyer was so sure he was going to win the case with all the material and documented(transcripts) evidence. This case has been going on for over 5 years and continuing. What we are experiencing is like the making of a hollywood movie. We filed complaints which made it a lot worse, retaliation, backlash. We filed a complaint with the CJC, this angered the judge who later ordered double and special cost to his selected counsels clients. We are told he gave us the maximum punishment in addition to his previous decision a few months earlier. He extorted over $338,000 from us, if we do not pay, opposing counsel can order the sale of our home. Our lawyer through prepaid legal was afraid, he kept begging us to release him, he filed a notice of withdrawal, As we were so deep in this judicial/legal mince we were afraid to go back as self represented litigants, we filed a notice of objection. This made it worse as the prepaid lawyer sold us out. We were back again as self rep.litigants. Opposing counsels refuse to accept the judgement payout and keep taking us back to Court every two week to increase cost, if they lose one application, they file another the next day. We are back in Court again this week, another two at the end of this month, two more in May and still they refuse to accept the judgement payout and negotiate they cost many of which has no details and not part of the law suite.

    The shocking and interesting thing is that this Judge, was running his private Law Firm, the same time while he was sitting on the bench presiding over this case. He was also the EX Partner for 24 years with Opposing Counsel’s and our previous Law Firm.

    Canadians who cannot afford high paying lawyers with connections, will continue to be denied our rights to a fair and impartial justice. It is an ill-defined and constantly evolving form of crime that manages to evade justice and it can spell financial, emotional and mental ruin.