*This is an opinion piece. It is not legal advice.*
More and more people are representing themselves at court these days. The NSRLP’s study shows that there are over 70% of self represented litigants in Toronto’s family court. (https://representingyourselfcanada.com/wp-content/uploads/2016/09/srlreportfinal.pdf, page 33) The growth of this trend is often perceived to be a “problem” by the legal profession. It is often said that self-represented litigants prolong litigation as a result of their ignorance. Self reps are often admonished by judges and opposing lawyers to “just go get a lawyer please!”
From my own experience as a lawyer and former self-represented litigant, it appears that many people represent themselves reluctantly. Other than a few people who believe they can do better than lawyers, most people are intimidated by the legal system. Most people start off in their lawsuit hiring a lawyer on a traditional retainer, where the lawyer goes “on record”. Many of my own clients tell me that after only a few months of representation, tens of thousands of dollars are incurred on legal fees with no result, forcing them to end the retainer. Speaking as a former client, paying legal fees, month after month, was an extremely stressful experience. The amount is not up to the client’s control in a traditional retainer, where a lawyer bills the client for the amount of time they worked on the file. I do not doubt most lawyers are trustworthy, and bill the client the honest amount of time spent. Lawyers usually even have a clock that they use to record their time to the nearest 0.1 of an hour. Nevertheless, from the client’s perspective, the uncertainty of the legal fees gives rise to a great deal of anxiety. It is the equivalent of handing their lawyer a blank cheque.
One might ask, “Why not discuss this with your lawyer?” I found in my own case, that I so intimidated by my own lawyer that I dared not complain. I was fearful that doing so would cause my own lawyer to see me as a “bad client”, and do a lesser job as my advocate. I saw only two options: keep your lawyer on record and just pay as they directed, or terminate the retainer and become self-represented.
For self-represented litigants who simply have no money to pay a lawyer, or for those who cannot tolerate the stress that accompanies the lack of control in spending, hearing the phrase “Go get a lawyer” may not be received well. To be sure, I believe that most judges and lawyers give this advice with the best of intentions. They see a self-represented person floundering about in a court of law, in an uneven match against their represented opponent. However, to a self-represented person, it will likely be perceived as insensitive. As a self-rep myself, when I heard that advice, my reaction was, “Clearly, the judge/lawyer has never had the experience of being a client! How can they push me to hire a lawyer when I have already spent tens of thousands of dollars with little to show for it?!”
I hope this article provides some perspective from a self-represented person to legal professionals. I also hope that self-reps will not be offended if they hear a judge or a lawyer suggest them to hire a lawyer. Perhaps it might be better if self-represented litigants were provided with information, such as pro bono legal clinics at law schools and other independent speciality clinics, duty counsel, Family Legal Information Centres, legal education on alternative dispute resolution services, or unbundled services.
National Self-Represented Litigant Project Directory of limited scope lawyers
Ontario’s Family Law Limited Scope Services Project:
Litigation Help’s Videos on Mediation and Arbitration