Self-reps or un-reps?

This blog is adapted from an article originally published by The Lawyer’s Daily, part of LexisNexis Canada Inc.

There is a lot of talk these days about people who make their way through what are often complex legal situations without the assistance of a lawyer.  Canada is rife with initiatives aimed at increasing access to justice, all of which refer repeatedly to the need to change systems to better serve those who don’t have lawyers. The Canadian Judicial Council has developed a Statement of Principles for judges who face ever increasing numbers of people without lawyers in their courtrooms. Research has been conducted into why people don’t have lawyers and what needs to be done about it. The Law Society of Ontario is considering expanding the scope of paralegals and possibly others, in part to address the high rate of people with family court cases who don’t have lawyers. The National Self-Represented Litigants Project has been developed to raise awareness about and provide resources for people without lawyers.

In all of this talk, research and attention to the issue, I have heard very little discussion about the language that is used to describe these people without lawyers, who are, almost universally, referred to as self-reps or self-represented litigants (SLRs).

Calling it what it is

The lumping of all people without lawyers under this same heading creates a false image of the real situation. In the work I do at Luke’s Place, as well as with other women’s anti-violence organizations – work that is focused on assisting women who have left an abusive relationship deal with their family law issues – I see a lot of women who don’t have lawyers. Well over half the women who turn to Luke’s Place for support are lawyerless.

Not one of them thinks of herself as self-represented. These women (and other vulnerable members of our communities) are unrepresented.

Not a matter of choice

There are many reasons they don’t have a lawyer, but none of those reasons is choice, which is the implication of the term “self-represented.” I work with women who had a lawyer till their money ran out, but still they don’t qualify for legal aid; whose parents remortgaged their home to pay for a lawyer, but those funds are gone; who had a legal aid certificate, but the hours are long since used up, and who have never had a lawyer.

Often, women are in this position as a direct result of the abuse they are attempting to flee. Their partner, perhaps, controlled the money while they were together, so the woman had no opportunity to build savings or even to know about the state of the family finances, or ran up staggering debt without her knowledge but for which she now shares responsibility. He may have consulted with every lawyer who takes legal aid certificates, retaining none of them, but conflicting every one of them out of being able to act for the woman. Or, he has dragged the court case on beyond anything reasonable, bringing repeated vexatious motions, failing to produce documents in a timely manner, refusing to follow court orders – all of which eat into the woman’s retainer or certificate hours until there is nothing left.

These women, with rare exception, are not representing themselves; they are struggling to find their way through the family court system – complex at the best of times and nightmarish when the opposing party is abusive – without representation: they are unrepresented.

A form of legal bullying

Their partner, on the other hand, may be represented or, as Nicholas Bala’s and Rachel Birnbaum’s recent research with Ontario family court judges has found, may be representing himself as a matter of choice, so he can, untrammelled by a lawyer’s representation, engage in legal bullying and otherwise use the court proceedings as a way to terrify, intimidate and harass his former partner. Fully 44 percent of the lawyers surveyed by Bala and Birnbaum noted this gendered difference in the reasons why people do not have lawyers.

Everyone pays the price for people who attempt to manage their own legal case without legal representation, whatever their reason for being in that situation. Cases move more slowly; the opposing party, if represented, often has to spend more money than they would if the other party had a lawyer; court dockets fill up and back up; judges struggle with how to manage the case in a fair and impartial way. Most importantly, of course, unrepresented litigants seldom emerge from the process with the best possible outcome.

There are many possible solutions to this important barrier to access to justice: the licensing of Family Legal Services Providers, increased reliance on limited scope retainers or legal coaching, an expanded role for duty counsel, increased funding and broadened eligibility criteria for Legal Aid Ontario, and more. Many family law lawyers take this barrier on personally, offering both low- and pro-bono services to clients in need.

To ensure that our possible solutions are the right ones, we must name the problem correctly. That starts with distinguishing in our language between litigants who self-represent and those who are unrepresented.

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