Access to justice: a need for lawyers, not self-representation or legal information.

Access to JusticeRecently, there is considerable concern and debate over access to justice and the perils that an unrepresented litigant or accused must overcome at court.  Columnist Carol Goar authored “Stinging message to Canada’s judges” set out many of these frustrations (and in turn instigated me to write this post).  Ms. Goar’s article was stoked by an open letter to Canada’s judges decrying the present difficulties one faces when they represent themselves in Court. The signatories request understanding and respect from the court because, essentially, they are trying their best despite the challenges they face and there are no other options due to financial difficulties of hiring a lawyer.

From my experience, all of this must be taken with careful consideration before accepting the letter and testimonials at face value.  There is no doubt that too many people in Court are unrepresented.  There is no doubt that many people truly cannot afford a lawyer in the same way they cannot afford proper housing or food.  However, many of these unrepresented individuals (at least those I have witnessed over a decade of practice) are there alone as a matter of choice.

It may not be “choice” in the simplest terms – such as choosing what sandwich to eat for lunch – but it is “choice” in the sense that there is  a calculated decision and consideration of the cost-benefit of retaining counsel.  Many choose to to hedge their bets on their own perceived competence, rather than make sacrifices to have experts assist them.  Some in the letter claim that they cannot afford to feed their children but are being forced to hire a lawyer – statements like these I find difficult propositions to accept.

The reality of litigation is harsh with no sanctuary for any participants, including lawyers and judges.

Yes, lawyers can be expensive.  Yes, judges can be gruff.  Yes, the system may appear unsympathetic to an unrepresented individual.  Welcome to the world of litigation – it is an unforgiving, complicated, and extremely stressful environment for all involved and this includes the lawyers and judges.

For necessary reasons, it is unlike anything else in our society.  Our society is one that is accepting of relativistic notions of right and wrong.  We are obsessed with customer satisfaction, and ruled by consumer supremacy.  Food we don’t like, products we are not impressed with, services that did not deliver the dream anticipated, are all refunded at a drop of a hat by businesses hyper-sensitive to bad press or social media propagation.  Not so in the world of litigation.

The reality is that the justice system is always going to seem unfair to the losing party.  It is always going to seem complicated because it is (even for lawyers).  It is always going to seem rude and unsympathetic.  Courts at the point of litigation are not the customer-service booth of society; they are a forced final result between inflexible competing interests when all else fails.

Courts, at the point of litigation, are not the customer-service booth of society; they are a forced final result between inflexible competing interests when all else fails.

The stress that an unrepresented individual laments about is what we, as lawyers, get paid to endure – day in and and day out.  As terrible as this experience may be for these unrepresented individuals, it is nearly the same for lawyers.  We have simply learned the skills to cope with this battlefield on a daily basis.  However, do not assume that this stress and the effects thereof is not felt by litigators who hire themselves out for their client’s desired end result.

Ask any litigator and many have and will sacrifice health, family, and (if you can believe it) even wealth just to ensure they everything they could do for their clients was done.  What is this worth on an hourly basis?  Combine that with the astronomical fees of law school, licensing fees, student debt repayment, and the expense of running a business.  Keep in mind that as the skill level in the process is elevated (by competing counsel) we too, as lawyers, are pushed to our limit of what we too can sustain.

Fairness in Court is about an even playing field.  It does not include compensating one side with proactive measures of equal proficiency.

hot to represent yourself courtWhat is fairness?  It is an exceptionally difficult, if not impossible, question to answer in a broad philosophical sense.  However, in Court, it is somewhat clearer.

Above all, justice requires a fair playing field.  This means that both side have opportunities to present and defend their cases completely.  Fairness requires that the Court considers all evidence presented through these equal opportunities impartially.  “Impartiality” does not mean that the Court must consider all evidence equally.  At some point, a court will consider some evidence more persuasive than others and render a decision accordingly. This is a very difficult concept and inevitability for unrepresented individuals to accept – namely, that some evidence (i.e., the other side’s) is chosen over theirs.

Many will decry that it is unfair if one side is disproportionately experienced over another — as in the case of an unrepresented individual.  This is true by itself.  Yet, one has to ask whether this unfairness was reached as a result of factors beyond the control of the disadvantaged party, or by choice.

Choice cannot be defined by dreams unrealized; choice is not rendered ineffective because the price for a service is considered too high to the perceived worth of the consumer.  In simpler terms, if a person chooses not to have a lawyer because they do not consider the situation serious enough to make arrangements to hire a professional, then there is nothing unfair about the end result of being at a disadvantage when the litigation commences.  It is like complaining that a when a $10.00 hockey stick broke it’s unfair because the opponent chose to spend $90.00 on a proper one.

Indeed, it is often the individual’s decisions that manifested the imbalance.  We all make decisions in life and we must live with them – it is not the role of the Court to ensure one side makes wise ones such as finding the means to hire a lawyer and treating it as seriously as the situation requires.

Of course, there is always the possibility that one individual has acted diligently, done everything they can to obtain counsel including selling assets, cashing in savings, or whatever else they would do in a life-alterting crisis.  From my experience, those cases are exceptionally rare.  People will rarely want to change their lifestyle or make sacrifices to hire a lawyer.  Where individuals truly are incapable of retaining counsel, then this is a societal problem that requires the government to step in a provide legal services so as to ensure fairness, often seen through Legal Aid programs.  Admittedly, Ontario is presently facing significant issues with eligibility determined by income levels.  This is a much broader topic and way beyond the scope of the point I am trying to make, and what I believe addresses the issue mentioned in the Goar article above and a very pervasive issue of unrepresented litigants.

Suffice to say that for those who are truly incapable of retaining a lawyer (in the same way that they are incapable of being able to afford housing, education, and school), counsel should be provided by the state – but as I mentioned, these cases are far and few between and not the topic of this controversy.

What is the degree or priority a litigant places upon the need for legal assistance?

An unrepresented individual ought to ask a hypothetical question such as “If your son or daughter was ill, could you (legally) find the money for the medicine even if it was expensive?” In my view, this is the sort of severity that must be asked of an individual before they claim they cannot afford legal services. If you could not, then the government has an obligation to step in as part of the social contract of a civilized society.

The reality, however, is that the catastrophe that is inevitably going to happen in unrepresented litigation will often pale in comparison to the damage of a leaky roof.

However, most people that I have come to see in Court perceive lawyers’ fees as an optional expense, much like they would a new kitchen or car.  The simple reality is that most people do not perceive whatever legal predicament in a way that is a very important crisis that needs expertise to address.  Put it this way: people will always find the money to repair a leaking roof but the same cannot be said for legal fees.   The perception is one is a pressing emergency whereas the other is a problem that they can probably manage on their own.  The disaster is not tangible.

The reality, however, is that the catastrophe that is inevitably going to happen in unrepresented litigation will often pale in comparison to the damage of a leaky roof.  It’s hard to fool oneself that there is not water dripping on their head, but easy to fool oneself that there isn’t a much worse (legal) storm coming. This is aggravated worse by the fact that difficulties in litigation do not typically manifest until it is far too late in the process to recover.

All too often, it becomes painfully clear to an unrepresented individual that they are in way over their head but at a time they cannot swim back to shore.  They realize they are drowning in an ocean of complexity, unfamiliarity, and procedure and then blame the ocean for appearing placid enough for them to swim out into it.

Lawyers’ fees must be taken in context of what service you are renting for an hour:

All too often, access to justice proponents will complain of excessive legal fees.  However, it can’t be forgotten that lawyers’ fees fall on a very wide spectrum of possibilities.  Competent, if not excellent, lawyers can be very inexpensive if some genuine efforts are made to search for one within their price range.   Yes, not everyone can afford the best lawyer but that should in no way detract people from hiring a competent one.

If one can’t hire Mike Holmes to repair their roof, do they simply not fix it?  It is better to have a young, less-expensive lawyer than none at all but many feel (incorrectly) that they can do a better job so they don’t bother.

The sticker shock of $350.00 an hour (for example) may be difficult to bear, but this is because most people perceive it as one lawyer who just shows up and talks to you. For any good lawyer, there is much more going on.  What one should really be thinking when they ask what the price is per hour is the hourly cost of that lawyer’s business.  For example, what would it cost to rent a hairstyling salon for an hour? A restaurant?  An auto-body shop?  I would guess that each of these simple examples would have a much higher rate than a typical lawyer’s office.

The rate offered by lawyers must be taken into account with the overall expense of running a practice including staffing and overhead costs.  There is no doubt that lawyers’ fees are expensive, but that does not mean they are not a good value. The simple question is whether it is worth whatever life sacrifices to ensure proper representation.

The belief in omniscient powers through Google

Present society has an inclination to believe that nearly any problem can be solved by Googling the issue and printing off the answer. This widely held belief is particularly prevalent when it comes to law.  I have said a considerable amount about this in a previous article but I will say a bit more.

Lawyers are seen to trade in information and knowledge in today’s world.  This is a commodity with very high supply and therefore little value.  However, what people often neglect to understand is that knowing the correct legal answer is a very small component to successful representation.  If that was true, a freshly graduated law student would be as effective (if not more) than a senior lawyer who has gained years of experience understanding how the system works and how to achieve results.

In my experience, there is a massive disregard for the value of training and experience over simply knowing an answer.  I cannot even guess how many times an individual wants to know answers to questions that are seemingly simple, but irrelevant to the issue they truly need addressing.

For example, very commonly I will receive a call asking a question such as “I pushed someone because they pushed me first…is this self-defence?”  The answer they want to hear is “yes, of course” to then be able to quickly hang up the phone armed with this “answer” to confront the prosecutor expecting an immediate withdrawal of their charges.

Answers, even correct ones, mean nothing in practice or in solving a legal problem.  It is like seeing a doctor and them saying “yes, that mole is cancer” and leaving the office thinking you can manage this affair because you have the “answer”.

Answers do not solve problems, they simply diagnose the issue that needs to be painstakingly fixed.  Simply because a legal defence or rule may apply, does not mean it will apply.  This is exceptionally difficult for unrepresented individuals to fully understand who assume the law and litigation is black and white when that it is actually many shades of grey.

Litigation is like war, or art, or food, or any other metaphor where there is no canonical “right and wrong”.  Anything that may appear clear cut, can be effectively argued to the contrary by lawyers.  The law changes daily and that is a product of lawyers who litigate change on behalf of their clients.

In short, finding the information by way of Google, a 5 minute telephone “free-consultation”, or speaking to a friend does not solve a legal problem.

Litigation is not about answers, it is about process.  A process only legal professionals understand and can navigate.  I imagine in medicine it’s easier to explain because an “unrepresented surgeon” can see the damage they can’t fix; whereas in law, people bleed themselves out unknowingly and then blame the scalpel.

What should be done?

As I have come to learn, the issues relating to inaccessibility of the courts is derivative of contemporary societies’ view that lawyers are not necessary and that people can navigate the legal system on their own.

The public has never, and will never be able to properly navigate the justice system on their own accord.  Trying to use the legal system against the State (like a criminal proceeding) or large insurance companies, banks, or companies is even more futile. This will never change no matter hard we strive towards that.  The more people assume they can navigate it on their own, the more damage they do to themselves.  Offerings of the government to post information online and similar initiatives is tantamount to showing people where the operating room is at a hospital.  Again, an explanation about their problem does not solve it.

Despite this, there is a pervasive view that an unrepresented accused should be able to navigate it as if they are picking up a licence at the Ministry of Transportation.  The solution lies not in making the system simpler, but in making lawyers more accessible, and an understanding by litigants that they are necessary.

Our society needs to accept that we need lawyers to help us as much as we need doctors, roofers, mechanics, hairstylists, and firefighters in our lives when issues arise.  Self-representaiton will never be the solution.  We need to accept that having to face litigation, being charged, or navigating the laws our our land is overwhelmingly complicated and that will never change.

Just as fires will burn down buildings, just as roofs will leak, and just as self-trimmed haircuts look horrible, the Court system is necessarily complicated and will continue to be this way.  Simplification does not create justice; adequate representation does.   If we come to terms with this basic premise, our government will follow as will the priority of people’s spending on legal issues that will profoundly affect their life.  Access to justice is not about unrepresented access to courts, it is about accessing knowledgeable lawyers and understanding their worth and role in society.

2016-11-18T19:25:01+00:00

About the Author:

Sean Robichaud is lead counsel and owner of Robichaud's.