Judges and Litigants Go It Alone When Lawyers are Unaffordable

GEO_edited-1It’s not getting any easier to be a judge these days, as self-represented litigants continue to overwhelm Canadian courts in increasing numbers.

With the abolition of Legal Aid and a middle-class that can’t afford to hire lawyers, the situation has become dire.

University of Windsor law professor Julie MacFarlane’s research indicates that up to 80% of court users in family law go into court without a lawyer.

The popular cliché that people who represent themselves in court have fools for clients has never been more true, and despite the increasing availability of pro bono legal services, rarely does free legal advice mean that a lawyer will show up in court.

While it is lawyers that have the reputation for talking too much and wasting court time, the truth is that court cases with lay litigants take up many more court hours because rules of evidence and procedure, while somewhat relaxed for in-person litigants, must still be maintained to ensure due process and the integrity of our justice system.

In a recent court case, with no counsel, where the issue was whether a Pakistani divorce was authentic and legitimate, one judge said:

“I record that I began this case at 10.30 a.m. this morning and I am now concluding it around 3.30 p.m. It has, accordingly, effectively occupied the whole of the court day. By sheer good fortune, the other case which had been listed for hearing by me today was vacated [postponed] yesterday for reasons connected with its readiness. If that case had not been vacated, I, and the litigants in that case, would have been faced with very considerable difficulties and a severe shortage of court time, and probably also additional expenditure to the parties in that case who, as likely as not, would have to have returned on another day.”

The judge found that the divorce was valid, but was justice really served when he noted that he did not have any basic materials, no orderly bundle of relevant documents, no chronology, no case summaries, and no real argument.

Professor MacFarlane’s observation that “it’s the inmates who are running the asylum” is sadly apropos.

Lawdiva aka Georgialee Lang

Justice Cafe on Main Street

Last week I ran into a lawyer friend in the Supreme Court in Vancouver. She was gowned for trial, just like I was, so I assumed she was conducting a trial that week. Turns out that her client couldn’t afford to hire a lawyer for his five-day trial, so my friend was hired for one-day only to cross-examine her client’s wife in a divorce case.

My friend’s role in her client’s case is just the tip of an emerging trend in legal services called “unbundled legal services” or “limited scope retainers”. It is no secret that scores of people in British Columbia just can’t afford to hire a lawyer. This phenomenon has led to a court system where a significant share of the cases being argued are presented by in-person litigants. Litigants with no lawyer.

The challenges these cases present are numerous, particularly where both sides to a dispute are acting on their own. Unlike Provincial Court, where the process is simplified with lay litigants the norm, the Supreme Court and Court of Appeal are a morass of rules and procedure, not the least of which is trying to figure out complicated rules of evidence, involving hearsay, opinion evidence, documentary evidence and so on.

However, with government coffers stretched so far that legal aid funding is almost extinct, and lawyers who provide many hours of pro bono services working to the max, unbundled services may well be the answer for those whose income and assets are not sufficient to pay a lawyer to do the complete job.

A law firm in Atlanta, Georgia recently announced the opening of their street front office, calling it “Justice Cafe”, where recent law graduates, many of whom are now unemployed, and retired lawyers will provide legal advice in family law and divorce matters for walk-in clients who will pay $75.00 an hour. Half of the hourly fee will go to the lawyer and the other half will go to the law firm to cover their operating expenses and hopefully, a small profit.

Michael and Shelia Manley will convert a dress shop about a block from the courthouse into a community law office, opening in December 2012. They will serve free coffee and offer free wireless access, while lunch can be purchased at the next-door lunch counter. They are hoping their storefront will attract some of the more than 60% of Georgia residents who do not have a lawyer during their divorce.

If their business model succeeds, they intend to cover their office walls with artwork done by lawyers and invite lawyers and law students to “jam” on a small stage in the store, with tips for their musical talent donated to free legal clinics.

Sounds like an idea whose time has come.

Lawdiva aka Georgialee Lang

Even Divorce Lawyers Can’t Afford a Divorce Lawyer

It should come as no surprise to anyone that most Canadians cannot afford a lawyer. In fact, lawyers often joke that if they had to pay a lawyer, they too couldn’t afford it. Nowhere is this dilemma more obvious than in family courts.

It is now commonplace to see self-represented litigants dueling with lawyers in most of our family courts in Canada. In British Columbia a parent or spouse can apply for custody and child and spousal support in the Provincial Court, which is purposely “user-friendly”. The Provincial Family Courts across Canada have successfully implemented reforms including plain-language court documents that are readily decipherable by lay litigants. The judges in Provincial Court are accustomed to hearing cases without lawyers and graciously assist those who act for themselves.

However, to obtain a divorce or property division, the only venue is each province’s Supreme Court, sometimes called “Queen’s Bench”, a most inhospitable environment for in-person litigants.

In a 2011 survey of Ontario divorce lawyers, conducted by Professor Nick Bala of Queen’s University Law School, he found that 48% of 167 responding lawyers indicated they were seeing many cases with at least one lay litigant and more cases where at some point in the litigation, neither party had counsel.

As family law becomes increasingly more complicated, despite the Canadian government’s sensible introduction of both Child Support Guidelines in 1997 and Spousal Support Advisory Guidelines in 2006, there are minefields enough for lawyers, never mind those who are forced to act as their own lawyer.

Will a lay litigant understand that in calculating their income for the payment of child support they must consider and understand complex nuances such as the possibility of the exclusion of non-recurring income; the need to include all of their capital gains income in their calculation and not just the portion they see on page two of their tax return; and their ability to deduct business expenses, union or professional dues and carrying costs? I doubt it. Not all lawyers have figured it out yet!

But affordability is not the only reason litigants refuse to retain counsel. There is another group of litigants who believe they can handle their divorce case just as well as a lawyer can. This smaller segment often become serial litigators who, because it costs them nothing, bring multiple frivolous applications, although some would say that lawyers do the same thing! Often when offered pro bono counsel, they decline.

Problems abound for all involved in the family justice system in the wake of the impact of lay litigants. Judges who must ensure that justice is both done, and seen to be done, are at the centre of the dilemma. If they provide too much help for an in-person litigant, that litigant’s spouse will see it as an unfair advantage and often, the court Rules that govern court procedures are less stringently enforced when it comes to litigants with no lawyer.

As well, litigants that pay for their own lawyer often become disenchanted with their counsel when they see their lawyer “helping” their estranged spouse who has no counsel. Lawyers are bound to treat participants in the justice system with courtesy and respect, traits that are frequently misconceived as their lawyer being “too friendly” with their opponent. Fee-paying litigants resent their lawyer telling their spouse what the law is or how the court process works.

For lawyers the problems are multiplied. They must walk a fine line in dealing with an unrepresented spouse and must ensure that all communication with an in-person litigant is documented in writing, with no exceptions. Of course, their clients are even more unhappy since it is their clients who pay the bills for the extra time and effort required to work with a lay litigant.

Lay litigants have also been known to send abusive communication to their spouse’s lawyer and from time to time, report their spouse’s lawyer to the Law Society, a complaint which can cost a lawyer hours of wasted time to respond to the often ill-founded allegations.

Is there a cure? They say that recognizing a problem is the first step to solving it. Certainly,the issue can no longer be avoided. It has taken centre stage as a result of lawyers, judges, court administrators, law professors,lawmakers, and the Canadian public decrying the slow demise of Canada’s family justice system.

Lawdiva aka Georgialee Lang