Law Times

lAw Times • April 11, 2011 NEWS City's success shouldn't insulate it: lawyer Continued from page 1 unrepresented litigants. "Fees are certainly lower than you would fi nd in Toronto or London, but that doesn't explain the diff erence with other mod- est, more blue-collar towns," he says. "Our lawyers are sensitive to the needs of a community that is reeling from one economic blow after another. We deal with auto- workers who used to make $35 per hour and now struggle to fi nd $14-an-hour jobs. It's unrealistic to look across the table and tell them you charge $350 per hour and you want a $5,000 retainer." Th e statistics can't provide a complete picture of the num- ber of unrepresented litigants in family court because the minis- try doesn't track representation among respondents or changes in representation throughout the length of a case, according to spokesman Brendan Crawley. "Al- though a person may start with- out a lawyer at the time of apply- ing, a number of people retain a lawyer once a case starts," he said in a statement. "In many cases, when a respondent is served, they do not have a lawyer yet. Many respondents retain a lawyer when they are served with court papers. Parties may also choose to con- tinue without a lawyer, although they had a lawyer at the begin- ning of the case." In any case, unrepresented doesn't equate to uninformed, Crawley noted. "Some people consult a lawyer to get infor- mation about their rights and responsibilities and then choose to represent themselves in court. Other people have the op- portunity to meet and talk with an advice counsel provided free by Legal Aid Ontario. If a self- represented person has a case in court, they may also speak to duty counsel who can give them free legal advice and sometimes assistance in court." Crawley highlighted eff orts aimed at assisting self-repre- sented litigants. Th ey include mandatory information sessions, more access to duty counsel, a greater emphasis on alternative dispute resolution, and a stream- lined court process. Not everyone agrees those are solutions, however. "By tailoring the system to the self-represented litigant, you're going to create more self-represented litigants," Mossman says. He sees the family law reforms as part of a wider move to keep cases out of court, something he says could have a detrimental ef- fect on the outcomes for some parties. At the same time, he believes Bentley will struggle to get his reforms off the ground in Windsor, especially since many of his ideas rely on senior counsel volunteering their time for free. "Anything that gets a case out of the system is seen as a good thing," Mossman says. "Th rowing out litigation and the adversary system in favour of mediation, to me, is somewhat short-sighted. Mediation, alternate dispute reso- lution, and those kinds of devices serve the powerful more than the weak and they don't work eff ec- tively for a lot of people unless the spectre of a trial is looming on the near horizon." But Crawley noted it's im- portant not to forget the 21 per cent of people who go without representation in Windsor. "Th e upfront information, additional quick access to advice, mediation to resolve issues and cases before court, and a faster route through court will help all users: those represented and those not," he said. "It does not replace lawyers or legal advice but adds to what they can off er their clients." For his part, Tom Dart, for- mer chairman of the Ontario Bar Association's family law section, says Windsor's success in provid- ing access to counsel shouldn't insulate it from the eff ect of the reforms. "Th e adversarial sys- tem is not necessarily the best way to resolve these disputes for a large majority of people, so I Courthouses with lowest rates of unrepresented applicants Courthouse Dryden Windsor Kirkland Lake Kenora Cochrane Unrepresented Total number (%) 15.6 21.2 21.6 27 29.1 Courthouses with highest rates of unrepresented applicants Courthouse Cambridge Orillia 47 Sheppard Ave. E., Toronto 311 Jarvis St., Toronto Parry Sound Unrepresented Total number (%) 83.9 75.1 73.9 72.5 71 Provincial average 54.3 Source: Ministry of the Attorney General of applicants 280 361 2,333 710 169 42,655 We're on your side e Howie, Sacks & Henry PERSONAL INJURY LAW Untitled-4 1www.lawtimesnews.com & Henry llp 4/5/11 11:42:45 AM of applicants 45 1,404 37 174 268 Brad S. Moscato We are pleased to announce that Brad has been admitt ed to the partnership. hat Brad Contact Brad Moscato at Moscato at 416-646-7655 bmoscato@hshla awyers.com s.com think the more that people can learn about alternate methods of resolving their disputes, the better. Th e court process isn't al- ways the best, particularly where there are children involved and an ongoing relationship between the parents is necessary for the sake of the kids." In Dart's experience, many people are scared of retaining counsel due to cost but he says that doesn't stop people from seeking legal advice. "Th ey come to us for very specifi c ad- vice on a particular step in their court proceeding," he says, adding he's happy to see the profession looking at the idea of unbundling legal services. "We're plowing through with that because there are needs out there. It's diffi cult to go through the court process when you don't know what you're doing and you do need some help somewhere along the road." Policy a 'positive first step' Continued from page 1 for younger criminal lawyers. "At the end of the day, there's a cost saving because very skilled, very experienced counsel are able to narrow the focus to issues of impor- tance and communicate appropriately with the court and opposing counsel so that things don't get bogged down and we litigate only on what matters," McArthur says. However, it will take time to assess whether the new rate is having the desired eff ect, she adds, noting senior counsel would still be taking a big pay cut when they accept legal aid cases. "It's not just a big payday. Th ere's a lot of over- head in order to eff ectively litigate these cases. Even at the enhanced rate, there's still a large pro bono component built in if senior counsel are coming back to do these cases. Th ey're still essentially donating a large proportion of time because these rates are signifi cantly lower than what they can receive privately." Apart from the deemed murder charges, LAO has laid out criteria for awarding the enhanced rate in other cases. To be considered, they must be ac- cepted into its big case management program. At that point, LAO will weigh factors, including the novelty of the issues at play, the length of the police investigation, the complexity of the Crown's case, and the severity of the alleged off ence, in judging whether to grant the rate for complex cases. It will take some time to see how that works in practice and how many applications translate into additional funding, McArthur says. She notes LAO had originally wanted to be able to challenge enhanced funding for murder cases before the CLA team convinced it to make it automatic. She expects that sort of dialogue to continue as the policy develops. "We were concerned that you would get into this back and forth over which murders are or are not serious and we thought it added a whole layer of bureaucracy that we felt was not best for the defence bar, not best for the administration of justice, and not best for LAO. We would have liked other charges to have been deemed but we all have to be cognizant that there is only so much money. From the CLA perspective, there's still signifi cant underfunding issues across the board, but this is a positive fi rst step forward." At the same time, LAO's new policy promises not to reject any applications without fi rst seeking advice from the criminal defence bar. "Th e [com- plex case rate] policy is one example of how our new relationship with the CLA can work toward ensuring better access to justice for low-income people in Ontario," said LAO chairman John McCamus in a statement. "LAO looks forward to further consultation with the CLA on matters of shared importance in order to continue to im- prove the legal aid system in Ontario." ANNOUNCEMENTS WHAT'S NEW AT HS&H PAGE 5

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