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.
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.