The Downside of Invidualized Assessement of Litigant Capacity in Triage

I have long argued for the importance of triage in the access solution, the need for litigant capacity to be part of the triage process, and for that to be done on an individualized basis.

However, a recent post by Dr. Julie MacFarlane, who did the Canadian self-represented litigant study, highlights, among other things, the downside of such individualized assessment of capacity.

In discussing a Canadian case in which a judge has used the litigants apparently high capacity to justify a denial of compensation for counsel, she points out:

But now a new burden appears – apparently to qualify for state aid [the litigant] has to also show that she is not able to effectively represent herself. At the same time as she is trying to frame and present her arguments as effectively and credibly as possible to the court. Placing Rhonda between the proverbial rock and a hard place.

One might argue that this shows that the whole triage approach is wrong, or at least that the individualized triage approach is.  In other words that assessing an individual’s capacity to handle self-representation adds such burdens into the system, and upon litigants, that the idea should be rejected.

One solution would be to allow for individualized assessment of other factors such as complexity, stake, relationship between the parties, but either ignore capacity as a factor in determining what assistance a litigant is to receive or to rely only on objective factors such as educational level.

The downside to such approaches is that they would result in limited resources being allocated to cases in which they are not “needed.”  But, of course, every system is going to result in some imperfect allocations.

As we move forward with various triage systems, it will be important to asses the costs and benefits of different decision-making approaches, and different kinds of protocols.

Such research may be a fertile area for international cooperation.


About richardzorza

I am deeply involved in access to justice and the patient voice movement.
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1 Response to The Downside of Invidualized Assessement of Litigant Capacity in Triage

  1. Claudia Johnson says:

    We might learn from other fields and perhaps come up with an assessment tool to measure the “ability to self represent”. For example, in the field of domestic violence, as an analogy, various research institutions have come up with lethality assesments or danger assessment toolsl ike this one

    from John Hopkins university. These are used to train police and first responders, social workers, etc. and now some legal aid groups are incorporating them into their intake screening work flow.

    Maybe funders interested in promoting a cross-discipline approach to triage of legal cases, could invite RFPs to develop similar tools to assess a person’s capacity to go from beginning to end in a case alone-drawing from other fields or collaborating with other disciplines, picking a substantive area where there high % of SRLs and where the risks of self representation are high (family law?).

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