Before I became a lawyer, I had this naive T.V. inspired understanding of the justice system. Anyone who went to court had a lawyer to advocate for them, unless they were nuts or had a genius level intellect, but in either case the gallery would gasp when the self represented litigant announced, “I am representing myself”.
However, the reality I came to know after becoming a lawyer myself is that the majority of people engaging with the Canadian justice system have no choice but to represent themselves at some stage in their legal proceedings.
Since taking on my first family law case over 10 years ago, I have been shocked by how many people have to represent themselves in court. In some jurisdictions, up to 70% of family law cases involve at least one person representing themselves – and the situation is getting worse. Judges, lawyers and academics have come to agree this has become an access to justice crisis.
But why? In my experience, most people don’t have the funds to hire a lawyer, yet they earn too much to qualify for Legal Aid. Sure, there are outliers who choose not to retain counsel because they believe they can do it themselves, but from what I have seen in my practice the primary reason is not having enough money.
If you are a single person earning more than $25,000 a year, or if you own your own home, you are not likely going to qualify for Legal Aid. But, if your yearly income is less than $70,000 you probably can’t afford a lawyer to take your case to trial.
Consider this: the average trial costs more than $35,000 for a family law case, but that does not account for all the steps that may be required beforehand, including negotiation, discovery and applications, which substantially increases costs. As a result, most middle-class Canadians do not have the funds to retain a lawyer to take their case to trial.
Unfortunately, Legal Aid funding across the country has been gutted over the past two decades. In B.C., Legal Aid spending was slashed by the provincial government by 40% in 2002. In 2019 in Ontario, the provincial government cut Legal Aid funding by 30%.
These cuts not only reduce the number of people who qualify for a Legal Aid lawyer, they produce the opposite of their intended cost saving effect. The Canadian Forum on Civil Justice at Osgoode Hall Law School has found that every dollar spent on Legal Aid services can generate between $9 and $16 in other economic benefits. Also, research by the Canadian Department of Justice indicates that people who are navigating the court system without a lawyer require more court resources. They end up spending more time with court staff, often make errors on forms leading to repeat filings and cause adjournments due to procedural errors.
Of course, governments should be investing more into Legal Aid, but the tremendous cost of COVID 19 has made that even more unlikely. Therefore, part of the solution needs to come from innovations in the way that legal services are delivered. The legal industry has been very slow to modernize but the impacts of COVID 19 have thankfully sped this process up.
The vulnerabilities of the Canadian justice system were clearly exposed in 2020 by the COVID 19 pandemic. However, as outlined by the Canadian Bar Association’s 2021 report on the impact of COVID 19, No Turning Back, the courts have been forced into long overdue technological advancements like online filing systems and remote video conference hearings, which have improved access to justice, and which should not be abandoned once life returns to pre pandemic norms.
The positive impact on the justice system from these technological advancements was publicly recognized recently by the Chief Justice of the Supreme Court of Canada at the Canadian Bar Association’s annual meeting on February 7, 2022. At that meeting, Chief Justice Richard Wagner stated that there is no turning back from the modernization forced onto the justice system by the pandemic. In this same meeting a resolution was passed that the Canadian Bar Association urge stakeholders in the justice system to consider innovative approaches to the access to justice crisis and to permit regulatory innovations to improve the accessibility and affordability of civil legal services.
Alternative legal services like unbundled, or limited scope retainers were once uncommon but lawyers across Canada are now addressing the unmet legal needs of self-represented litigants by providing these services. Technological innovations have made providing unbundled legal services more efficient and cost effective for clients who want to retain a lawyer for a specific job or task, rather than putting down an expensive retainer for the full scope of representation traditionally offered by law firms.
One type of unbundled legal service that is quickly becoming a popular option is legal coaching. Legal coaching allows a client to represent themselves in court with a lawyer providing advice and support in the background. The lawyer can provide legal advice, draft legal documents, conduct research, and provide many other services in the background to empower the self-represented client with the skills they need to be successful.
Moreover, legal coaching lets the client choose when they need legal help. They can meet with a lawyer once or multiple times. They also choose what tasks they want the lawyer to perform. In other words, the client is in full control of how much they spend on legal assistance which helps them manage their budget. At the core, legal coaching is about providing a client centered service that meets a specific legal need within a particular client’s budget.
The number of lawyers offering clients alternative services is slowly increasing. However, lawyers who want to provide alternative legal services face an uphill battle as the regulations around legal services are not well suited for innovation. This includes the limitations on law firm ownership and investment which blocks non-lawyers from participating and limits access to the funds required for innovation and growth.
Fortunately, there is growing recognition that the status quo is not working and that regulations must change to give space for innovations which benefit those who can’t afford the traditional model for legal services. Innovation “sandboxes” have opened up across the country, including in B.C. and Alberta and the new Divorce Act includes a definition for non-lawyer legal assistance, which may be a foreshadowing of things to come.
A crisis can be an opportunity, and as this pandemic has shown, we can innovate and modernize our legal system for the better. Failing to do so cannot be an option as access to justice depends on it.
Marcus Sixta is a family lawyer, mediator, and founder of Crossroads Law, a family law firm operating in British Columbia and Alberta. Marcus recently launched Coach My Case, an alternative legal service with a focus on legal coaching and navigation.