By Nicholas Bala and Rachel Birnbaum
The increase in self-representation among family litigants creates challenges for the justice system as well as for lawyers and their clients. It is clear that a significant amount of self-representation will be a permanent feature of family justice in Canada; lawyers, judges and the justice system will have to deal more effectively with family litigants without lawyers. There will, however, also continue to be a critically important role for good family lawyers, and the rise of interest in self-representation is actually creating some new opportunities for providers of legal services.
In this article we summarize some of our recent research on self-representation in family cases in Canada, and we offer suggestions for lawyers, governments and the justice system for improving responses to the challenges created by self-representation.
Our research on self-represented family litigants
“For some, the decision to self-represent reflects a confidence in their own knowledge and ability to navigate the system; for others it’s a distrust of lawyers.”
We have recently undertaken a number of related studies, including a survey of 275 family litigants in Ontario, about 60 per cent without lawyers and 40 per cent represented; a survey completed by more than 400 family lawyers in Ontario and Alberta; and a survey of 54 Canadian judges.
The surveys of judges and lawyers clearly reveal that there has been a significant increase in the amount of self-representation by family litigants over the past five years. In at least a third of cases one party is unrepresented for at least part of the case, and another quarter or more of cases, neither party has a lawyer at any point. There is, however, substantial variation between courts, with lack of representation being more common in Provincial Courts.
We asked unrepresented individuals why they did not have a lawyer, but received no definitive answer. Some respondents may not have carefully reflected on their own decision-making, or they may have a complex combination of reasons that may change over time. We also asked judges and lawyers why they believe more individuals are unrepresented, though of course their views are partially speculative.
While inability to afford a lawyer and ineligibility for legal aid are the most significant explanatory factors for lack of representation, for many middle-income individuals, there is not an absolute inability to pay for legal representation. Rather the decision not to retain a lawyer is based on their assessment that, given their income and asset level, the value of having a lawyer does not justify the cost. Changes in popular culture and television shows like Judge Judy are leading some who could afford a lawyer to choose to represent themselves. For some, the decision to self-represent reflects a confidence in their own knowledge and ability to navigate the system; for others it’s a distrust of lawyers. Some people decide that if the other party does not have a lawyer, they do not need one either. There are also some angry family litigants who want to directly confront their former partner, and whose decision not to have a lawyer may reflect a personality disorder.
Not surprisingly, in our survey of litigants, those with higher incomes were significantly more likely to have lawyers than those with lower incomes; higher-income individuals both have a greater ability to afford a lawyer and, at least financially, have more at stake. The vast majority of those with lawyers stated that they planned to continue with their lawyer, and reported that their lawyer was very helpful (62 per cent) or moderately helpful (19 per cent). Most of those with lawyers (73 per cent) expected that that they would obtain a better outcome, and more than a third expected that the process would take less time. The most common primary reason (41 per cent) that family litigants gave for having a lawyer was the expectation of a “better outcome,” while 26 per cent reported lack of knowledge of the legal process as their primary reason for having a lawyer. Five per cent reported not wanting to directly deal with the other party.
Consequences of Not Having a Lawyer
“A significant portion of litigants without lawyers do not expect lack of representation to have an effect on the outcome of their case – some even expect to have a better outcome.”
About two thirds of those without lawyers said they found it difficult or very difficult to navigate through the family justice system as a self-represented litigant, and almost half felt that not having a lawyer slowed down the process. Still, a significant portion of those without lawyers reported having had access to sufficient information about family law, in particular from the internet, to represent themselves.
About half of litigants without lawyers believe that judges listen more to those with lawyers, and expressed concerns such as feeling like “second-class citizens” in the family courts because they were unrepresented, but roughly three-quarters of those without lawyers reported at least moderately good treatment from court staff and judges. While many of those without lawyers reported reasonable satisfaction with the family justice process, there were also many who expressed profound stress and depression with their situation, and a concern about the effect of not having a lawyer for themselves and their children.
The general perception of lawyers and judges is that litigants generally have better outcomes if they have a lawyer. Litigants with lawyers generally agree. However, a significant portion of litigants without lawyers do not expect lack of representation to have an effect on the outcome of their case – some even expect to have a better outcome. In particular, a majority of unrepresented men do not expect a worse outcome than if they had a lawyer – in fact, almost 10 per cent of self-represented men thought having a lawyer would result in a worse outcome. Among men with lawyers, however, the majority believed having a lawyer would result in a better outcome than not having one.
By way of contrast, both represented and unrepresented women perceived a similar value in having a lawyer for economic issues resolved by a judge – most women expected those with representation would have better outcomes.
Somewhat less than half of the lawyers and judges surveyed believe that there are gender differences in the reasons for lack of representation; a common perception of legal professionals is that women are more likely to be self-represented due to an inability to afford a lawyer, while men may be more likely to be self-represented due to a desire to deal directly with their former partner or because of (over)confidence in their ability to represent themselves.
Lawyers express concern that self-represented litigants often look for advice to the lawyer for the represented party, though of course there are very significant constraints on what a lawyer for one party can or should do to assist an unrepresented party. Lawyers also reported that they must generally document communication with the self-represented more carefully than when dealing with opposing counsel, which contributes to the increased costs to their clients. Almost all lawyers report that the self-represented often have unrealistically high expectations for the outcome of their cases. A substantial majority of judges and lawyers also report that settling a case when one party is self-represented takes longer and is more difficult (and costly) to settle.
Responding to the challenges of self-represented litigants
Many of those without lawyers are being helped by an expanding range of services provided by government or otherwise available, in particular on the internet ( e.g. the website mysupportcalculator.ca), and some litigants feel reasonably comfortable dealing with the family justice process without retaining a lawyer. The growing range of services and information available for the self-represented has contributed to changing social attitudes, knowledge and expectations, with the result that having a family lawyer is one option for those who are going through separation or divorce, but self-representation is another.
Reforms to substantive family laws in Canada, especially the introduction of guidelines for spousal and child support, and reforms to property legislation, have tended to make the law more comprehensible and clearer, making resolution of economic issues for self-represented litigants, especially those with limited income and assets, more manageable than it was in the past. For those with a low-conflict separation, adequate education and literacy skills, and relatively simple financial affairs, lack of legal representation may not present a serious problem. Given the cost of legal services and the availability of “free” (i.e., often government- provided) services, for some individuals the decision not to retain counsel to resolve family matters may be a rational economic decision (though these self-represented litigants may be imposing added costs on the justice system, and often on the other party). However, the continuing high rates of self-representation in family cases pose challenges for judges and lawyers, and result in continuing frustration and concerns for litigants, both those with and without lawyers.
Our surveys confirm that the most important reason for the lack of representation is lack of financial resources and ineligibility for legal aid. A very significant portion of self-represented family litigants are unable to afford a lawyer in cases where there are serious concerns about the effect of lack of representation on outcomes for litigants and their children. There are certainly strong social and moral arguments for increasing legal aid services for family litigants. Many of those without lawyers expect – and will likely have – worse outcomes and less protection because they are without counsel. There are serious concerns about the effect of lack of representation on meaningful access to family justice, as well as the long-term effects that this may have on vulnerable parents and their children, especially if there are domestic violence concerns or issues related to the care of children.
In the present fiscal climate, significant enhancements to legal aid funding seem unlikely, though some changes may be possible to improve delivery of legal aid services. Lawyers need to continue to seek ways to reduce the costs of family dispute resolution, especially for middle-income litigants. Legal representation must be proportionate to the means and needs of parties; there is, for example, greater scope for the use of jointly retained financial experts and appraisers, as well as an expansion of the use of limited scope retainers in family cases. There are also situations where greater use can be made of properly supervised paralegals and law students.
While financial concerns are a major factor in the rise of self-representation, we live in an increasingly “do-it-yourself” society. Some family litigants without lawyers, especially men, believe that they will actually have better outcomes if they represent themselves, or may relish the prospect of personally confronting their former partners. Although individuals have the right to represent themselves and take their disputes to court, there must be greater efforts to educate litigants about the value of obtaining sound legal advice. Further, in appropriate cases, those who choose to represent themselves and thereby impose costs on the other party due to procedural errors, prolongation of trials or rejection of reasonable settlement offers, should be ordered to pay the costs imposed on the other party. Lawyers facing unrepresented litigants, especially high-conflict individuals who have chosen to represent themselves, should be prepared to document the extra expenses imposed on their clients by a self-represented party, and judges should be more prepared to award costs in these situations.
The majority of those with greater resources and more complex financial affairs will continue to want and need good legal representation, though often resolving their cases outside of the court system, whether by negotiation, mediation or arbitration. This raises concerns about “two tier” justice, with those who are wealthier tending to resolve disputes with lawyers outside the court system, and those with more limited means being unrepresented and resolving family disputes in an increasingly stressed family court system.
Nicholas Bala is a Professor of Law at Queen’s University. Rachel Birnbaum is an Associate Professor, Cross Appointed in Childhood Studies and Social Work at King’s University College, Western University. Their research is supported by a grant from the Social Sciences and Humanities Research Council.
The Family Way, October 2012 - Newsletter of the National Family Law Section