Law Times

Page 10 OctOber 5, 2015 • Law times www.lawtimesnews.com FOCUS Self-represented litigants System exploring new ways of helping those without counsel BY JUDY VAN RHIJN For Law Times ollowing a recent British Columbia case where a family law litigant went to jail for her determined advocacy and non-compliance with orders, Ontario lawyers are examining whether there are better ways to handle a judge's frustration with those who rep- resent themselves. Between the extremes of full representation and handling the case oneself, the unbun- dling model offers a middle path where a lawyer offers guid- ance at key points. Described by some as the bane of the legal system, self-representation is a growing phenomenon. "The fact of the matter is that whether we like it or not, there are a huge number of individuals who can't afford legal counsel and aren't eligible for legal aid," says Nikki Gershbain, national director of Pro Bono Students Canada. The frustration of lawyers and judges with self-represented litigants is often evident with efforts to assist them sometimes in conf lict with the courts' need to function efficiently and maintain the rule of law. "We are not wishing to dimi- nish the power of the court to deal with actual breaches of or- ders," says Joseph Neuberger, a criminal lawyer in Toronto who frequently witnesses the crosso- ver between the family and cri- minal courts. "When you have a breach and an application for contempt, this is one of the most serious processes. Jail should be the last resort, but if they breach orders, they should have their feet held to the fire. If you don't agree with the order, it's called an ap- peal." There have been a raft of go- vernment efforts to help people avoid the courtroom through information, mediation, and referral services. Web-based guides to court procedures and electronic form-filling are proliferating in the family and civil courts with electronic fi- ling now available in the Small Claims Court. The next few months will see the launch of an online tool to guide family court users through the com- pletion of Form 8 and, as of early 2016, it will be possible to set up and update child support online without the need for a court appearance. There have also been in- creases in legal aid and duty counsel services, but Gary Joseph of MacDonald & Partners LLP finds them to be very modest and selective. "They are inadequate. They need to pay rates that will at- tract even moderately expe- rienced lawyers. No one can possibly make a living doing that work on what they pay." On the other side of the issue, Joseph has no hope that self-represented litigants can learn enough to present their own cases. "It takes good courtroom lawyers years and years to learn how to do it pro- perly," he says. While studies show that many self-represented litigants are very competent and in 50 per cent of cases have a univer- sity degree, that doesn't mean they're able to navigate the le- gal system. "It can be really overwhelming. That is why we train as lawyers for four years," says Gershbain. "There are many really in- telligent [litigants] who can do some things on their own but need a little bit of help." Even middle-income Cana- dians often can't afford legal fees, an issue that's a significant concern for Prof. Julie Macfar- lane of the University of Wind- sor. "Generally, I believe that of- fering those who cannot afford it the very expensive full-repre- sentation model — retainer and then billable hours to do every- thing from start to finish — is effectively to deny those indivi- duals access to justice. It is also completely unresponsive to the market. Many of those who re- present themselves have a few thousand dollars to spend on legal assistance and they badly want such help but cannot find lawyers who will provide ser- vices to them on this basis." The need for a middle ground has informed the development of a web-based project that pro- vides guidance and referrals at key points of the process. Julie Mathews, the executive director of Community Legal Education Ontario, is overseeing the Steps to Justice program that will launch a pilot at the end of Oc- tober. Steps to Justice doesn't target only those representing them- selves. "Many people are not to- tally on their own but are doing some steps on their own," she says. "A step might be to get help from a lawyer if they are inca- pable of handling something or they are facing multiple crises. There is good referral informa- tion included in the content." Another new effort with a similar philosophy has emerged out of research done by the Uni- versity of Windsor. Also begin- ning this October, it involves a coaching model that pairs trained law students with liti- gants under the supervision of a practising lawyer. Pro Bono Stu- dents Canada and the Univer- sity of Windsor are partnering to present the program with the hope that it will spread to other universities. Gershbain says the coaching concept is a new model aimed at responding to the number of self-represented litigants in Canada. "It will allow [liti- gants] who are having diffi- culty navigating the system to feel like they are not alone. It gives them more dignity in the system. If this is the new normal in the justice system, it makes it less intimidating." At the heart of the coach- ing model is the distinction between legal advice and in- formation, something that's important for both law stu- dents and court staff to un- derstand. "It's a blurry line," says Sue Rice, project man- ager and research director of the National Self-Repre- sented Litigants Project. She paraphrases it as follows: "Le- gal information: These are the steps you can take. Legal advice: These are the steps you should take. If you look at a form, you can tell them you've missed a spot. You can't tell them what to fill in. You can give options, not strategy." The Ministry of the Attorney General will soon be launching a pilot project in that area at two court locations that offer family and Small Claims Court coun- ter services and have high num- bers of self-represented litigants. "Because of the concerns of crossing the line into the unau- thorized practice of law, the legal profession has historically made it a default position that those working in legal information services are extremely cautious about what they can do and say to assist litigants," says Macfar- lane. "Many court staff told us that they felt constrained by this concern and thus gave minimal assistance to [litigants]." Macfarlane believes training on that issue will assist court staff and others working in frontline legal information ser- vices so they can feel confident giving litigants the procedural information they need. Macfarlane has also given a talk to the Nova Scotia Barris- ters' Society about coaching by lawyers. "It's a different type of service that goes well with the unbun- dling model. I think that a real market in affordable legal coa- ching offers [litigants], who are savvy shoppers and intelligent consumers, the opportunity to buy the services they need. It also demonstrates the real value that a lawyer can bring: for exa- mple, helping them strategize over a possible settlement, advo- cating in court, offering conti- nuous moral support." Joseph believes the rules for unbundled legal services or li- mited-scope retainers require more work to see their full po- tential. "We've made a start, but there continue to be concerns about liability. We need to f lesh that out with the law society and insurers to permit fully unbun- dled services." LT Yonge Richmond Centre 151 Yonge Street | Suite 1404 Toronto, ON M5C 2W7 416.865.0504 littler.com Your people and employment law challenges cross borders, times zones and cultures. And so do our solutions. We bring global thinking and experience to your workforce issues— wherever business takes you. We're global because you are. Untitled-1 1 2015-09-30 11:39 AM E. V. Litigation & Financial Services Inc. Elaine G. Vegotsky, CMA, CFE, CFI Assisting you in Litigation & Forensic Accounting, Financial Investigations x a F r o e n o h p e l e T 0 0 9 e t i u S 0 7 3 1 - 0 3 9 ) 6 1 4 ( , t s a E e u n e v A d r a p p e h S 5 4 Willowdale, Ontario M2N 5W9 (905) 731-5812 evlitigation@rogers.com E. V. Litigation & Financial Services Inc. Elaine G. Vegotsky, CMA, CFE, CFI Assisting you in Litigation & Forensic Accounting, Financial Investigations x a F r o e n o h p e l e T 0 0 9 e t i u S 0 7 3 1 - 0 3 9 ) 6 1 4 ( , t s a E e u n e v A d r a p p e h S 5 4 evlitigation@rogers.com Toronto, Ontario M2N 5W9 (905) 731-5812 CFA, CPA, Vlit_LT_Mar10_14.indd 1 14-03-04 10:18 AM F Nikki Gershbain is touting the idea of coaching for self-represented litigants.

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