Important New Canadian Report Highlights Challenges Facing the Self-Represented and Innovation and Research Lessons for the US

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.

And:

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.

 

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About richardzorza

I am deeply involved in access to justice and the patient voice movement.
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6 Responses to Important New Canadian Report Highlights Challenges Facing the Self-Represented and Innovation and Research Lessons for the US

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  4. Mary Ryan says:

    The Self-represented Report is an excellent representation of the circumstances which arise here in Rhode Island, and I suspect is consistent with the experience of others throughout the United States. Focusing here in Rhode Island, the self-represented experience many obstacles, rather than accessible pathways to the judicial process. First and foremost, statistics have demonstrated that citizens are not equipped with the knowledge of their Constitutional rights. It is an educated guess that if there were more citizens who were equipped with the knowledge of their rights, the confidence factor would be much greater. That’s a HUGE issue for another day – the education system in the United States.
    Secondly, there is little to no access to law libraries here in Rhode Island. There is no online information regarding Rules of Procedure in any of the Courts. An individual must rely on older hard copies which are now few and far between in the public libraries. Public libraries have done away with their hard copies (if they had one) and very few have updated versions making it difficult for an individual to navigate their way to the information to get through the process.
    There is an online resource for statutes, but there are no case law references or any information to assist in understanding how to access or analyze case law or how to apply it to the given circumstances.
    The two law libraries which are available to the public can be found in the R.I. State (Providence County) Court house.and the R.I. State House. They have great online resources at the library. There are smaller libraries in the county court houses, but they do not have many resources and the environments can be very intimidating as a whole. The library staff at both the R.I. State Court house (Providence County) and the R.I. State House are excellent but they are limited to what they can do. There have been UPL issues in the State of Rhode Island which have made many who might be knowledgeable reluctant to assist. Striking the balance may be a challenge. The county court house libraries are only open during court business hours, whereas, the Providence County Court house is open during the week and on Saturdays. The R.I. State House is also only open during business hours unless the legislature is in session, they are open a little bit longer. Availability to the general public is extremely limited to those who have a flexible work schedule.
    The United States District Court of Rhode Island has a wonderful accessible guide to the Civil Rules of Procedure, http://www.rid.uscourts.gov/menu/generalinformation/rulesandprocedures/localrulesandprocedures/localrulesandprocedures.html as does the United States Supreme Court. http://www.supremecourt.gov/ctrules/ctrules.aspx. However, the United States District Court has a law library but is not accessible to the general public.
    Third, encounters with opposing counsel are often brutal to those who choose the path of self-representation. Self-represented individuals are subject to unprofessional conduct both outside and inside the Courts more often than not. There also is an strong element of competition by those in the legal profession. Often the self-represented is on the receiving end of the competitive conduct, which is not very kind. Some in the legal profession give the appearance that the fundamental purpose of their vocation is economics rather than preserving the integrity of the law and legal profession. Seems like rose-colored glasses to some, but to others, it is the only thing that fosters faith in the judiciary.
    In addition, (and more often then not) opposing counsel take advantage of unrepresented or self-represented individuals, and, if given the lead by a judge, opposing counsel will have a field day.. There are many wonderful judges who would not tolerate such behavior, but, sadly there are those who not only defer to the opposing attorney, but will allow and protect unprofessional conduct in their courtroom at the expense of the self-represented citizen and the integrity of the Courts. Many citizens simply give up because they are left to believe that the lawyer and the judge are part of a closed system and they have no right to ask for relief for injustices unless they have the resources to pay an attorney.
    In addition, there is little to no accountability in the Courts. some of the recommendations in the report are excellent which address this issue. I would add that the expectations of its citizenry in the United States may be different from that of Canada. In the United States, we “should” have knowledge of the law as we have a heavy responsibility as “citizens” rather than those who may be subjects to a monarchy or other governmental form. So, while the expectations and recommendations in Canada rely on the experts to review public policy, it is important that in the United States we are citizens who have a civic responsibility to have knowledge of the law. We have been indoctrinated with the belief that “ignorance is no excuse” for breaking the law. So, therefore, It is essential to be inclusive of our citizenry in the general public when addressing policy and procedures.
    Lastly, while we revere individuals such as Abraham Lincoln, John Adams, Thomas Jefferson, Benjamin Franklin, who were home/self educated or attended what some would perceive as “alternative” schools in the present time, these men were brilliant in the law. Law schools did not exist as they do in the present day. These were individuals who loved the law to the best of their ability, given their resources and circumstances at the time. They continue to be revered by many to this day. Why can’t we offer the same respect to citizens who make a choice to exercise their Constitutional rights as self-represented litigants? It seems like a simple solution. Thank you for your continued contributions to this issue.

  5. Jon Mark says:

    Reblogged this on Texas Poverty Law Blog and commented:
    This is an interesting article and the report is worth a read. I expect the results in the U.S would be similar.

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