An important new report, The National Self-Represented Litigants Project: Identifying and Meeting the Needs of Self-Represented Litigants, by Dr. Julie MacFarlane, supported by grants from the Law Foundation of Ontario, the Law Foundation of Alberta, and the Law Foundation of British Columbia/ Legal Services Society of British Columbia, is part of a major access initiative in Canada.
This is the most challenging finding, based on interviews with almost 300 self-represented litigants:
Some SRL’s began with a reasonable sense of confidence; others began with trepidation. However within a short time almost all the SRL respondents became disillusioned, frustrated, and in some cases overwhelmed by the complexity of their case and the amount of time it was consuming.
53% of the sample had been represented by counsel earlier in their action. Three quarters of these had retained a private lawyer, and the remainder had been legally aided, but this was now discontinued. These respondents had exhausted their available resources and were often resentful that despite significant expenditures on private legal services, they were still not at the end of their action. Past experience with legal counsel in an earlier case or legal transaction was not dispositive in their decision to self-represent.
I am not sure if we have exactly equivalent stats for the US, but we do know that there is a high level of change in representation status during cases.
The tone of the report is NOT that it is impossible for the court to open itself up to the self-represented, merely that it has not done so. Of course, it would be nice to think that we do not have this problem in the US because of our investment in self-represented accessibility, but it would be the height of arrogance to come to that conclusion without data, and in any event such a conclusion would have to be state specific.
Here are just some of the other Canadian findings from this very comprehensive report:
- The vast majority of the self-represented made the choice for financial reasons, and indeed had tried but failed to find lawyers they could afford (an interesting question we should survey more.)
- Those litigants who saw the same judge each time they were in court were much more satisfied (this is a major lesson that we need to take to heart, and and a reform issue to which we have not yet paid enough attention.)
- the self-represented lost money and even jobs as a result of the time and complexity of handling their cases.
- Many litigants do take advantage of their right, available in most non-US common law countries, to being “friends” to court to provide moral and perhaps practical assistance, but there is confusion about the scope of this right. (Again something we should be .)
- Litigants want and need coaching services (e.g. through unbundling.)
- Online resources focus too much on legal technicalities and not enough on practicalities like presentation of evidence, negotiation etc. (Is this ever true in the US too!)
Everyone should take a look at this, not only because of the suggestive findings, but because of the methodological approach, which included a highly practical review of online resources. We need to be doing the same kind of study. The recommendations would be very familiar to us in the US, and are highly practical.