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May 22, 2012 permalink
The enclosed article from the Globe and Mail laments the rise of self-representation in Canada's courts, and notes the low quality of that representation. It even expresses the frustration of judges who have to hear the poorly presented advocacy.
The article omits mention of the cause. The law society limits the number of persons who can practice law. When supply is restricted, the marketplace raises the price. At the same time, the lawyers have worked hard to stamp out competition from lower-proced para-legals. The unavoidable result is an increase in the number of litigants who cannot afford any representation.
Price of self-representation weighs on courts
It was easy to tell Mohammad Quader had been acting as his own lawyer in his divorce: He habitually referred to his ex-wife as “the applicant.”
That impression was confirmed when the 40-year-old Bangladeshi immigrant broke into tears as he later described the frustration of filling out documents and making legal arguments in a completely unfamiliar environment.
“I don’t have any legal background, so I don’t know what to say in court,” he said in an interview. “I have to prepare legal documents by myself. I feel totally helpless.”
Mr. Quader is the face of a growing problem for Canada’s family court system. A rising flood of litigants who do not qualify for legal aid lawyers, yet cannot afford one on their own, is costing the system heavily at a time when it is already creaking under the weight of swollen dockets and antiquated information systems.
The first major study on self-representation that compares the views of family judges, lawyers and litigants has found that 50 to 80 per cent of proceedings now involve one or both parties representing themselves – raising the level of courtroom conflict, lengthening proceedings and hurting the chances of reaching pre-trial settlements.
And in an age of easy access to information on the Web and the popularity of shows like CSI and Law and Order, many litigants – mostly men – are choosing to go it alone, convinced they possess strong courtroom skills.
But much of the information available on the Internet is wrong or inapplicable.
“We are reaching a tipping point where, for those in middle-income groups, the norm will be not having a lawyer,” said Queen’s University law professor Nick Bala, who conducted the study with University of Toronto social work professor Rachel Birnbaum. “They are going to say: ‘Why do I have to pay a lawyer if I can get the information for free?’”
For the most part, people represent themselves because they can’t afford a lawyer. But the study pointed toward a significant gender gap: While women almost always represent themselves because they cannot afford a professional help, men self-represent because they are overly confident, or have deep mistrust of a system they see as stacked against them.
“Things like Judge Judy also don’t help,” Prof. Bala said. “Law, procedures and tactics are a very complex undertaking.”
While self-representing may be cost-free to a litigant, it is anything but free in an institutional sense. “There is a court clerk, a court reporter, a judge and the courtroom itself,” Prof. Bala said. “It is actually a very socially expensive kind of ‘free’ resource. This is a major concern to those responsible for the administration of justice.”
While people who choose to represent themselves pose a threat to the system, the group that has no choice represents the courts’ biggest challenge.
In the latest chapter of their divorce litigation, Mr. Quader and his ex-wife, Aktharunessa, argued this week over disclosing financial information.
When his case concludes, Mr. Quader – who is upgrading his education by studying financial accounting – expects to be on the hook for support payments. He will pay them out of his meagre earnings from a part-time job.
One judge who was surveyed for the study went so far as to recommend banning self-represented litigants from the courtroom. He compared the practice to allowing hospital patients into an operating room to perform surgery on themselves.
Source: Globe and Mail