High legal fees forcing many laypeople to go lawyerless

"Most people cannot afford an attorney on an hourly basis," he says. "Most attorneys probably can't afford an attorney. They've priced themselves out of the market."

The Globe and Mail
October 4, 2004

High legal fees forcing many laypeople to go lawyerless
It's a trend some lawyers complain is clogging an already busy court system
Beppi Crosariol

Montreal lawyer Janet Oh won't soon forget one of the more trying cases of her career.

As in-house counsel for a Canadian-based multinational, she had to defend the corporation in a wrongful-death suit brought about by the mother of a race-car driver involved in a crash.

It wasn't that Ms. Oh feared losing. She was certain the suit had no merit. After all, the company, which she prefers not to name, had merely sponsored the race, not built or equipped the vehicle. Plus there was the matter of damning medical evidence supporting that the driver, who succumbed many months after the accident, actually died of AIDS.

What made it so arduous, Ms. Oh says, was that the plaintiff was determined to fight the case without a lawyer.

"Perhaps the case would not have dragged on as long if the courts or judges would have been brave enough to tell her that she was barking up the wrong tree, or that she was not exercising her rights against the right people," she said.

The case was finally dismissed at trial in 2003 but not before years of costly pretrial hearings and motions granted by a judge whom, in Ms. Oh's opinion, went beyond the call of duty to appease the plaintiff.

Ms. Oh is not the only lawyer who has had to wrestle with a do-it-yourself litigant. While reliable statistics on the phenomenon have never been kept by courts, legal experts agree the number of self-represented litigants is on the rise.

"We're seeing evidence of this trend in not only the U.S. and Canada but all the Commonwealth countries," says Jona Goldschmidt, associate professor of criminal justice at Loyola University in Chicago, who is currently studying the Canadian experience.

"We have a lot of anecdotal evidence, although not a lot of systematically collected evidence."

It's a phenomenon some lawyers complain is clogging the court system and imposing new burdens on lawyers who must fight on the other side.

In her case, Ms. Oh says, the woman was granted about a dozen "frivolous" motions forcing the defence to produce superfluous evidence and costly expert witnesses, all at the defence's expense.

Ms. Oh, who is also a member of the Canadian Bar Association's national standing committee on equity, says such tactics, not to mention saddling the defence with costs that would normally have been borne by the plaintiff, would not have been tolerated had the plaintiff been represented by a lawyer.

"If you had lawyers on both sides, judges, first of all, treat you differently because they expect that you know what the rules of procedure are, what the rules of evidence are and what normal courtroom etiquette is," she says. "The argument that's raised is that these are corporate defendants and they can afford a lot of money. There's very little sympathy."

Ms. Oh adds she was forced to endure threatening phone messages at home and racial slurs in court that were tacitly condoned by the judge.

The plaintiff "called me racist names and the court didn't intervene to stop it," she says. "It would not under any circumstances be tolerated [if it had been committed] by another counsel."

A major factor fuelling the trend is cutbacks in the legal aid system. Faced with dwindling support from government, especially in British Columbia and Ontario, people of limited means are increasingly fending for themselves.

Major cuts to legal aid in British Columbia, for example, contributed to a 40-per-cent drop in the number of lawyers accepting legal aid cases over the past three years, says Alison Brewin, program director at West Coast LEAF, the Vancouver-based chapter of the Legal Education Action Fund.

"In B.C., that rise in unrepresented litigants really took a sharp upturn … since the cuts happened," Ms. Brewin says.

Another driving force is the high cost of legal help in general. Legal-industry watchers say it's not just the down and out who are going it alone. More middle- and upper-income people are choosing to spare the expense of professional help.

That's the conclusion of Diana Lowe, executive director of the Canadian Forum On Civil Justice at the University of Alberta in Edmonton, who is conducting a study on communication between the justice system and the public.

"What we often hear from the users that we talk to is that they may have started off their case with representation but they found that they were unable to continue to afford the cost of the litigation and have ended up completing the case self-represented," she says. "And these would be people who we would consider middle class."

Prof. Goldschmidt says lawyer rates of $200 an hour and up would force most average-income litigants to tap into their life savings.

"Most people cannot afford an attorney on an hourly basis," he says. "Most attorneys probably can't afford an attorney. They've priced themselves out of the market."

Self-represented litigants are also finding inspiration on the Internet.

"We live in an information age and there is an expectation within the public that they should be able to find what they need in order to pursue the cases," Ms. Lowe says.

Two Canadian websites in particular that are widely praised for their depth and user friendliness are the provincial court sites in Nova Scotia (http://www.courts.ns.ca) and British Columbia (http://www.provincialcourt.bc.ca).

Mr. Goldschmidt, who commends the Canadian system for doing a better job than the American system of accommodating unrepresented litigants, cites an especially useful section on the B.C. site entitled Trial Preparation and Note-taking Skills. "It really is a well-done document that describes for the self-represented litigant what he or she will encounter in court."

Mr. Goldschmidt says Canadian do-it-yourselfers enjoy a major advantage over their U.S. counterparts, namely helpful judges.

"In the U.S., the general rule is that judges should not assist self-represented litigants because in doing so they will be perceived as acting unfairly or less than impartially," he says.

Mr. Goldschmidt plans to present his findings on the Canadian experience next month at a judicial conference in White Plains, N.Y. He will argue that there is "no need for any experimentation, because the Canadian experience is the experimentation." And, he says, it's proven largely successful.

Ms. Oh, meanwhile, begs to differ. "Very often [judges] will allow things to happen which should never be allowed on procedural issues," she says.

Many legal experts say the lawyerless trend is unfortunate, and not just because it means less income for lawyers.

Ms. Lowe, for one, fears it is promoting an antagonistic process. "There's a tendency to these cases to move all the way to litigation rather than settling," she says. She adds that people who are unsophisticated in legal procedure may be clueless as to the strength of their position and thus might be tempted to go the distance despite slim odds.

Also, she adds, there's a general reluctance on the part of lawyers to negotiate settlements with laypeople because it's hard to deal with someone who doesn't know the ground rules. "The system wasn't made for this," Ms. Lowe says.

Ms. Oh's experience notwithstanding, do-it-yourselfers don't always enjoy favourable treatment in court.

"I tried to listen closely to the judge and my ex-spouse's lawyer but had difficulty understanding what was even going on," says Kris Taks of Trail, B.C., who last year represented herself in a custody battle over her two children.

"I felt very intimidated by the judge and my ex-spouse's lawyer, who cross-examined me in the trial. I remember standing there, shaking, crying and confused."

Ms. Taks's efforts to win more frequent access to her children were twice dismissed, once because she hadn't completed the requisite paperwork.

As a consequence, she now owes her ex-spouse $15,000 for his lawyer's costs.

"After the last two court appearances where I appeared on my own behalf, I am afraid to go back there. Just driving by that courthouse makes me feel sick to my stomach."

The legal community has only just begun to grapple with potential solutions.

In some quarters, there's talk of encouraging lawyers to "unbundle" services for clients who can't afford, as Ms. Lowe puts it, "the full-meal deal." This would entail assisting with the more challenging aspects of a case and leaving the client to deal with the more routine aspects, such as filling out forms.

Ms. Brewin is an advocate of more funding for legal clinics, which can provide low-cost counselling advice and other paralegal services to people before they commit to a lawyer.

Still, she says, counselling services work only up to a point. "The nature of family law is such that once it's before the courts, it's hard to get it away from the courts."

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Risks: Self-represented litigants, Access to justice, War of attrition, Canada, 20041004 High legal

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