Judges decry trend of citizens playing lawyer

"The middle class, probably even the upper middle class, have been abandoned by the legal profession," she said. Judge Koenigsberg said that because of the high fees, between 10 and 20 per cent of the litigants who appear before her are "self-represented."

The Globe and Mail
March 10, 2006

Judges decry trend of citizens playing lawyer
Sky-high litigation costs are forcing many Canadians to represent themselves in legal disputes, justices tell conference
Richard Blackwell

TORONTO — The skyrocketing cost of litigation is keeping most Canadians from using the court system to settle disputes, and many of those who do go before a judge are now representing themselves instead of hiring lawyers, senior judges said yesterday.

Madam Justice Marvyn Koenigsberg of the Supreme Court of British Columbia told a conference on access to justice in Toronto that lawyers' fees "are completely beyond the reach" of most individual litigants.

"The middle class, probably even the upper middle class, have been abandoned by the legal profession," she said.

Judge Koenigsberg said that because of the high fees, between 10 and 20 per cent of the litigants who appear before her are "self-represented."

The problem is so severe that last year the B.C. Supreme Court opened an experimental self-help centre in Vancouver where individuals can get assistance in preparing for family and civil cases they will be taking to court themselves.

"People have to be able to come to court without lawyers and truly access justice," Judge Koenigsberg said.

In Quebec, the situation is similar, Associate Chief Justice André Wery of Quebec Superior Court told the conference. In Montreal, "ordinary people have completely deserted the court system" except for family-law matters, he said, and almost all other civil trials now involve corporate litigants.

In family-law cases, the number of people representing themselves has jumped to 40 per cent from almost nothing 15 years ago, Judge Wery said.

The reason is that "people simply can't afford the judicial process any more," he said. Fees are so high that even the winning parties in some civil cases end up with nothing, he said. "What's the use of winning your case if everything you win goes to your lawyer?"

The high cost of litigation has taken a significant toll on Joe Killoran, an investor advocate living in Oshawa, Ont., who tried to defend himself after becoming embroiled in a legal dispute with a Saskatoon financial adviser.

Mr. Killoran was sued for distributing material critical of the adviser, but he could not afford a lawyer to defend himself. He's a part-time teacher and his wife is a school principal, and the cost of retaining counsel was beyond their means.

"I approached a lawyer who asked for a $15,000 retainer up front," Mr. Killoran said yesterday. He calculated that the fees for handling the early legal motions — before his case even went before a judge — would drain him dry.

So Mr. Killoran decided to represent himself. But his inexperience tripped him up, and he ended up being found in contempt of court in two related cases in Saskatoon and Calgary. In one case, the judge ruled Mr. Killoran distributed documents he was forbidden to release, and in the other he was cited for failing to reveal to a judge the name of an associate who had given him documents.

The rulings brought thousands of dollars in fines and put Mr. Killoran in a Calgary jail for 10 days.

Mr. Killoran said hiring a lawyer would likely have kept him out of trouble, but "I had no money and no assets" to finance the case.

"When you go to court today, the whole thing isn't the truth any more, it's all the procedures," he said. "It's all a chess game, and [the key is] who has the best lawyer to proceed through the game of chess."

At yesterday's conference, Judge Wery said one reason the court system is so expensive is that it has become increasingly complex for lawyers to navigate.

While the legal questions aren't any more complicated than they were years ago, the way the system processes the issues is more intricate, he said.

It's a legitimate question to ask if lawyers are taking advantage of this situation, Judge Wery said. "Are there now financial incentives [for] being inefficient — in taking more time rather than less?"

One reason the paper burden is getting out of hand, he said, is that lawyers are handing in huge briefs.

"More paper appears more professional," he said. "And it's probably easier to charge those hefty fees if there's more for the eye to see."

Toronto lawyer Alan Lenczner said judges themselves are partly responsible for the inefficiency of the courts.

Some judges, especially inexperienced ones, let far too much irrelevant material be entered as evidence in court hearings, he said, while others run a much tighter and efficient courtroom.

That inconsistency makes it very hard for lawyers to know where they stand, he said, and the solution is better judicial training.

"We need a judges school," Mr. Lenczner said, "so [all judges] have the same standards and the same confidence" and can all keep their trials on track.


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