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Continuing Legal Education and the Self-Representing Litigant

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.

Comments

  1. I’ll venture a reply to your title question from the perspective of a self-represented litigant.

    The whole point of continuing legal education for lawyers is that it finesses, updates, and enhances knowledge that is built on the solid foundation of a legal education. As in all fields, continuing ed provides interior decorating to mental architecture that is already in place.

    The challenge for self-represented litigants (or anyone learning law by “discover/inquiry” methods) is that we are gathering knowledge without having a foundation to build on. We are more or less slapping up structural elements as we need them to hang pictures on.

    I have found many useful resources as I’ve embarked on learning law from scratch: court resources, Duhaime’s online law dictionary, CanLII, law firms’ newsletters, the academic literature, law libraries, and the time I’ve been able to afford with lawyers who kindly provide “coaching.” Now into my third year of this (yes, it might have been more efficient to just go to law school!), I have built many sections of mental architecture, but they are supported only by what I can glean of the fundamentals – because the fundamentals are taken so much for granted by the legal profession that they are only rarely specifically articulated.

    Gleanings about the nature of the infrastructure are available to SRLs in every decision or argument or article we read, and most of us probably collect them avidly and hoard them as I do, but we don’t really know how they go together. Here a principle, there a doctrine, here a rule, there a tenet, oh and look, a test. I can use this. But what comes first, what supports what? How are they connected? It’s not just frustrating for us to be working with these disjointed gleanings, but equally frustrating for judges when our best efforts amount to spilling them hopefully onto the bench for the judge to sort out.

    The inability to organize our gleanings into a solid foundation that supports our case is due to precisely the sort of gap noted by Madam Justice Gray. Being able to distinguish between fact and argument comes so naturally to lawyers that it requires a sharp eye that looks beyond the obvious to discern what the missing knowledge is. It is all too easy to fall into the error of concluding that people who are working without infrastructure knowledge are dumb.

    Continuing legal education materials, and materials about “how to practice” law, almost by definition do not meet SRL needs for fundamentals. So, what could CLEBC or other agencies offer? The thing I would sign up for or buy in a heartbeat would be a session – could be an hour, a day, or a weekend, or a video or a book – called Fundamentals of Law For SRLs. And I think a lot of others would too.

    Anything else might or might not be a more efficient use of my time than my “as needed/just in time” process. The challenge of providing education for self-represented litigants is that what we need to know is so specifically focussed on the case we are building and the needs of that case at any given time, which we are unlikely to be able to foresee at the outset. Even if we could, our case usually comes at us unexpectedly without a lot of lead time to take a comprehensive approach to learning things in a logical sequence. And as we proceed, we are so overwhelmed that we don’t have mental energy for a bunch of extraneous information; that is, information that doesn’t help us right now. That means that for anything beyond the fundamentals, it may be best to let us scavenge around the library looking for the nuggets that serve the immediate need we have at a given moment.

    But most of us would do better at both scavenging and using our findings if we had just the merest sketch of the outline of the building to orient ourselves to the basis for what we are doing, and the cornerstones on which it is supported. No matter what wing of the building we’re in – family law or public law or something in between – the integrity of the whole enterprise is enhanced if our contribution to it can be properly placed and securely supported.