TORONTO – Stymied by the high cost of hiring a lawyer, many Canadians are representing themselves in court only to find the experience frustrating, overwhelming and more complex than they expected, according to a study released Tuesday.
In fact, the study finds the ordeal of trying to navigate the legal system can take a profound emotional, financial and even physical toll on self-represented litigants.
“These individually experienced consequences represent a social problem on a scale that requires our recognition and attention,” the study concludes. “The costs are as yet unknown.”
The 18-month research project looked at 259 self-represented litigants in Ontario, Alberta and British Columbia — equally divided among men and women.
About 60 per cent were family court litigants — many involved in divorce proceedings — while most others were litigants involved in various civil cases.
Slightly more than half started off with a lawyer before opting to represent themselves, often after paying out large sums.
The largest single group — about 40 per cent — reported incomes of less than $30,000 a year. About 43 per cent earned more than $50,000 a year.
While some said they were simply fed up with their legal representation, most cited the steep cost of retaining a lawyer — $350 to $400 an hour is not unusual — as the prime motivation for going solo.
“People aren’t doing this because they woke up one morning and thought, ‘I think I fancy myself as (TV lawyer) Perry Mason,” study author Julie Macfarlane said in an interview.
“They’re doing it because they cannot afford to pay a lawyer. This isn’t about choice: this is about necessity.”
Macfarlane, a law professor at the University of Windsor, said hers is the first study to look at self-representation through the eyes of “regular, hard-working ordinary folk” who end up in court and can’t afford a lawyer.
Some lost jobs or found themselves isolated from friends and family. Others lost sleep or fell ill.
Macfarlane said she was surprised at the enormous stress self-represented litigants experience, saying her research felt like grief counselling.
“That was really quite revealing when you stop to think about the social cost,” she said.
While legal resources are increasingly available online, the study finds they require some legal knowledge to be of use, and may not be of much concrete help.
Simply finding and filling out the right forms — even those offered online — proved a daunting challenge to many, leading to mistakes and timewasting, as well as to added workload for court staff.
“A number of court staff commented that they (and some lawyers) also had difficulty completing complex and lengthy court forms,” the study states.
Respondents found court personnel often tried to be helpful but didn’t have enough time, or staff worried about being seen to offer legal advice.
The increasing numbers of self-represented litigants — up to 80 per cent in some family courts — has also forced judges to act as lawyers, the study notes. Some respondents complained judges were rude to them.
The study proposes several recommendations, key among them is recognizing that self-represented litigants — by necessity — are now a permanent part of the justice system.
It suggests developing low-cost support services for those litigants, many of whom simply want guidance and coaching.
The study urges the law community to consider creating more choices for clients in accessing lawyers — in particular in the financial structure of legal services.
It also suggests an “open-minded re-examination” of the rules that protect the role of lawyers while limiting the roles of other legally trained professionals.
The Alberta Law Foundation, Law Foundation of British Columbia, B.C. Legal Services Society, and the Law Foundation of Ontario provided funding for the study.
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