How should CLE providers approach the issue of self-representing litigants?
I’m sure all Slaw readers are aware of the phenomenon of the rise of the self-represented litigant. Over the past 20 years there has been a vast increase in the number of people coming to court or interacting with the justice system without legal representation. In British Columbia, this change correlates with the decline in legal aid, although this is only one reason for the increase.
You could take the view that this development should have little impact on education of the legal profession. But if you’re invested in the rule of law and the integrity of the justice system, it’s hard to stand by without wanting to provide some assistance. After all, here at CLEBC we have developed a very large repository of information about how to practice law in British Columbia. Surely there’s some way to get these resources into the hands of the self-representing litigant.
Over the years we’ve supported a number of initiatives that have in turn supported self-representing litigants and other non-lawyers. We know that our BC courthouse libraries are well used by members of the public. The library’s 2013 annual report tells us that public requests account for 45% of questions in the libraries. We hear that all library users (both lawyers and non-lawyers) rely heavily on CLEBC practice manuals and course materials.
I know at least one family lawyer who, when assisting a client who cannot afford the full array of her services, sends that client to the courthouse library with instructions to read specific chapters of our Family Law Sourcebook. Clients who are not intimidated by the technical language of our publications can educate themselves in this way.
Public legal education is not the same as legal education by and for lawyers. (We admire the work of BC’s Justice Education Society, which has created a large number of informative public legal education websites.). However, we are pleased to have opportunities to support their work.
Last year the BC Legal Services Society asked CLEBC if they could use the content of our Family Law Agreements: Annotated Precedents to form the basis of an online separation agreement guide. Once I recovered from my reaction to the idea of anyone else touching our precedents (the result of years of careful and thoughtful work by our volunteers), and once I understood just exactly what was being developed (something for people who would otherwise not engage a lawyer to draft a separation agreement), we were able to provide LSS with our content, which has now been pared down into an online tool: How to Write Your Own Separation Agreement.
We recently supported a similar Legal Services Society project. A couple of years ago Madam Justice Gray, of the BC Supreme Court, embarked on some research on self-represented litigants and the law of evidence. Her research addressed the difficulties that many self-represented litigants face when introducing evidence. Her research indicated that the biggest problems are submitting argument instead of evidence, inclusion of irrelevant evidence, omitting non-expert relevant evidence, and poor organization. (Note that counsel also make these types of errors.) She proposed fill-in-the-blank forms, model affidavits, and standard questions to ask at trial as tools to assist judges and counsel and the litigants themselves.
Now the BC Law Foundation has funded the Legal Services Society to implement Justice Gray’s recommendations. The Legal Services Society is developing a new resource aimed at helping Supreme Court self-representing litigants prepare for chambers applications and trials. A number of our publications include sample chambers orders; we shared these with the project team.
Supporting the BC legal profession as they develop skills to work with self-representing litigants is well within our mandate. A number of our publications include information on this topic. The BC Family Practice Manual, the Family Law Act Transition Guide, the BC Administrative Law Practice Manual, Small Claims Handbook, and the Civil Appeal Handbook all provide advice of this type.
Our course materials are a particularly rich resource for information. A perennial favourite is “I’m Not a Lawyer, Your Honour”. This paper has been the basis of a number of sessions and appears in our online course materials subscription.
The issue of self-represented litigants is also dealt with in our courses. We recently offered a CLE-TV on “Working with Self-represented Litigants”. In other courses, we included a discussion of the practical and ethical issues arising when dealing with self-represented litigants. At another course, we produced a demonstration in which a designated paralegal was faced with dealing with a self-represented litigant in court.
The CLEBC board chose the topic of self-representing litigants to be the focus of its recent retreat. Every year the CLEBC board holds a retreat to learn about some issue that affects their work as a board, our CLEBC work, or is an important trend for the legal profession.
The purpose of the retreat was to take a 360 degree survey of the phenomenon of self-represented litigants in our justice system and begin to determine CLEBC’s response. We recruited speakers who would provide different perspectives on this issue.
We heard from Madam Justice Gray, who described her research on self-represented litigants and the law of evidence. We also heard from Dr. Julie Macfarlane of the National Self-Represented Litigants Project, based at the University of Windsor law school. She produced a wonderful video describing the work of her project, including some compelling interviews with self-represented litigants. The video is available for everyone to view on the project’s Youtube channel.
The Law Society of BC has also been doing important work in this area. Art Vertlieb QC is chair of the Legal Services Regulatory Framework Task Force. He shared the work of the task force and their excellent report.
We heard an informative and powerful presentation from Jesse Desilets, a family lawyer called in 2010. He described the experience, and the consequences to his client, of acting on a file where the other party is self-represented.
Rick Craig is the Executive Director of the Justice Education Society. He showed us the many excellent public legal education websites that the society has created.
The insights of our retreat presenters were incredibly helpful as we consider how to support the legal profession as they learn to work with this change in our justice system.