A lot of good research on litigants without counsel has been published in the last three or four years, most notably, in my view, Professor Julie Macfarlane‘s “Identifying and Meeting the Needs of Self-represented Litigants,” a trio of papers published by the Canadian Research Institute for Law and the Family on the views of Alberta judges and family law lawyers, and a report by the Institute with professors Nicholas Bala and Rachel Birnbaum (in press) on the results of a national survey of judges and lawyers. Although this research doesn’t necessarily label it as such, I’ve noticed that there’s a bit of a slippery slope effect to litigating without counsel, in which the the decision to self-represent, whether a choice was involved or not, seems to trigger a cascade of adverse effects that ultimately result in litigants without counsel achieving worse results in every major area of family law than would have been achieved with counsel.
1. The judges and lawyers surveyed firstly said that by and large litigants without counsel have unrealistically high expectations of the outcomes they are likely to achieve. In the Alberta research, three-quarters of judges and almost 90% of lawyers said that litigants without counsel always or usually have unrealistic expectations of outcome; almost half of judges and lawyers outside Alberta said the same thing in the national survey, and 30% said that litigants without counsel sometimes have unrealistic expectations of outcome.
2. Perhaps as a result of their overly optimistic expectations, litigants without counsel are more likely to go to trial than settle. In Alberta, 87% of judges and 89% of lawyers said that settlement without trial or before the end of trial is less likely or much less likely if one party is self-represented. In the national study, almost 60% judges and lawyers said that settlement is less likely or much less likely. The national survey also showed that 70% of respondents from Alberta and 55% of respondents from the rest of Canada believe that litigants without counsel are more likely to take unreasonable positions based on principle.
3. When litigants without counsel get to trial, problems arise as a result of their unfamiliarity with the law and court processes. In the Alberta study, a range of 85 to 100% of judges said that additional challenges always or usually arise in cases involving a litigant without counsel because of their unfamiliarity with the applicable legislation, the rules of evidence, the rules of court and hearing and trial processes. A range of 70 to 77% of judges and lawyers outside of Alberta said the same thing in the national survey. Other research, notably that of Madam Justice Gray of the British Columbia Supreme Court, has found that self-represented litigants’ unfamiliarity with court processes and the rules of evidence frequently lengthens the time required for hearings and trials, increases the time spent that must be spent by the opposing party on the case, obscures the main issues, requires the recall of witnesses and requires adjournments.
4. At the end of the day, litigants without counsel achieve worse results than litigants with counsel. In the national research, a range of 51 to 55% of judges and lawyers in Alberta thought that litigants without counsel achieved worse results on child support and spousal support, parenting arrangements and the division of property; 32 to 44% of judges and lawyers in the rest of Canada felt the same way. About 18% of judges and lawyers said that there is no difference in the results achieved by self-represented litigants on support issues, about 20% said that there is no difference in the results on support issues and about 13% said that there is no difference in the results for property division.
(However, is should be noted that despite their difficulties with court and court processes, litigants without counsel are generally well-treated by judges. In “The Rise of Self-representation in Canada’s Family Courts,” a study which included a survey of Ontario litigants, Nicholas Bala, Rachel Birnbaum and senior Institute researcher Lorne Bertrand found that 14% of litigants without counsel believed that they were treated very well by the bench, 39% thought the way they were treated was good and only 13% thought they they were not treated well at all. According to the national survey, 97% of the lawyers from Alberta and 74% of the lawyers from the rest of Canada believe litigants without counsel receive very fair or fair treatment from the bench.)
It appears from the research that litigants without counsel find themselves caught in a vicious spiral. Self-represented litigants generally have unrealistically high expectations for the outcome of their cases, which reduces the likelihood that their cases will be resolved without trial. When they do proceed to trial, their lack of knowledge of the governing legislation, the rules of evidence, the rules of court and court processes frequently causes additional problems and increases the length of trials and the number of adjournments. Adding insult to injury, when their trials do complete, self-represented parties usually achieve worse results than they would have had with counsel.
Given the extremely low likelihood that funding to legal aid programs will be increased to the point where everyone who wishes to have a lawyer can get one, solutions to this problem must lie elsewhere. A number were proposed in the Final Report of the Family Justice Working Group of the Action Committee on Access to Justice in Civil and Family Matters. Others might include:
- simplifying the legislation applicable to family law disputes so that it is actually comprehensible to those involved in a family law dispute;
- ensuring that the legislation applicable to family law disputes is drafted as a complete code so that nothing other than the text of the legislation itself must be referenced in order to understand ones rights and potential obligations; and,
- ensuring that the legislation applicable to family law disputes restricts and defines the range of potential outcomes to increase certainty as to result and constrain unrealistic expectations as to outcome.
Whatever is or isn’t done to interrupt the slippery slope engaged by those who litigate without the benefit of counsel, I hope that those involved in the current justice reform efforts will consider the research undertaken by Professor Macfarlane, Justice Gray and the Institute.