Self-represented
litigants ‘treated with contempt’ by many judges, study finds
BY DON BUTLER, OTTAWA CITIZEN
JANUARY 1, 2013
Jamie Ryan has been representing himself
in Family Court in a custody and access dispute with the mother of his young
daughter.
Photograph by: Chris Mikula , Ottawa Citizen
OTTAWA — Jamie Ryan has been fighting
for equal access to his young daughter since the day she was born nearly three
years ago.
When his ex-girlfriend announced she was
moving to Toronto and taking their daughter with her, Ryan hired a lawyer and
spent $30,000 trying to stop her. The judge ruled against him. “So that was a
waste of money, really,” he says.
Since then, Ryan — who owns an Ottawa
company called Executive Golf — has been representing himself in court. So far,
he’s appeared before seven different judges. Despite some limited success, the
experience has been deeply disillusioning.
The judges, he says, treated him like a
criminal. “Here I am, trying to be a good father. That’s my whole mission. I
enter the court system, and I’m being talked to like a criminal. It’s very
insulting and degrading. I’m asking the court for help, and this is the
attitude I’m getting.”
Trying to navigate the justice system
without a lawyer is the hardest thing he’s ever done, Ryan says. The province’s
Family Law Information Centre at the Ottawa courthouse has been of some help,
he says, “but they’re supporting a system that’s just so archaic and detailed,
and it’s built around criminality. It’s just a vortex of confusion and delays
and expenses.”
According to the preliminary results of
groundbreaking new research, Ryan’s experiences are typical of lawyerless
litigants.
Julie Macfarlane, a law professor at the
University of Windsor, has interviewed about 280 self-represented litigants —
“self-reps,” for short — in Ontario, Alberta and British Columbia. It’s one of
the first times anyone has ever collected their stories.
“What has surprised me is how
traumatized people are by the experiences they’re having, how many lives are
getting wrecked, how much anger and frustration there is out there,” says
Macfarlane, who plans to publish her findings this spring. “It makes you
wonder, given that self-reps are now a majority in the legal system, how much longer
the system can hang on.”
The proportion of self-represented
litigants varies. But in Family Court, Macfarlane says, it’s always more than
50 per cent, and can rise as high as 80 per cent in some areas. In civil court
— Superior Court in Ontario, for example — “I’ve seen anything from 35 to 65
per cent,” she says.
(Macfarlane’s study doesn’t include
people who represent themselves in criminal court, where legal aid is available
for those who qualify. But they are a growing presence even there.)
According to Macfarlane’s research,
Ryan’s rough treatment by judges is the norm for those who appear in court
without lawyers. While there are notable exceptions, most judges believe that
“if you’re a self-rep, you’re a pain in the ass, you’re going to be really
annoying, you’re going to be really unreasonable,” Macfarlane says. “And they
get treated with contempt.”
As part of her project, Macfarlane
interviewed half a dozen lawyers who represented themselves in court. Even they
were shocked at how dismissive judges were. “They couldn’t believe it,” she
says. “It has suddenly taken the blinkers off their eyes.
“Even if only 10 per cent of what I’m
being told is factually correct,” Macfarlane declares, “it would be really bad.
People talk to me, only slightly tongue-in-cheek, about post-traumatic court
syndrome.”
The jaundiced judicial attitude is a
holdover from an earlier era, when many of those who appeared in court without
a lawyer were mentally disturbed, says David Scott, a prominent Ottawa lawyer.
“That’s changed completely,” says Scott.
Now, “the unrepresented litigant is frequently smarter than the represented
litigant and his lawyer combined. The idea that all these people are deranged
is over.”
Within the legal profession, what to do
with self-represented litigants “is now the hottest topic on the street,” says
Scott. “This is a huge management job for the courts, and we’re just beginning
to deal with it.”
For the past 20 years, Macfarlane has
trained judges at the National Judicial Institute. “In the last five years,
this is what judges want to talk about all the time — how do I deal with
self-reps?” she says.
Cost is the main reason people go to
court without a lawyer, Macfarlane says. Many start off with a lawyer, spend
$5,000 or $10,000 on legal fees, then run out of money.
Many people only chose to represent
themselves “in greatest desperation and with huge amounts of anxiety,”
Macfarlane says. “But there are also a fairly large number of people who are
saying, ‘My lawyer didn’t do much for me.’ Or if they haven’t had a lawyer,
‘Everything seems to be online, surely I can manage this.’”
The vast majority of people Macfarlane
interviewed told her the experience was much more stressful, burdensome,
difficult and complex than they’d expected. For many, it also took a toll on
their health.
“This is the part that has really blown
me away,” Macfarlane says. “People consistently describe both physical and
mental health issues as a consequence of this” — everything from insomnia and
depression to social isolation.
One lawyer — who regularly appears in
court on behalf of his clients — was so stressed out after representing himself
he had an attack of temporary amnesia, Macfarlane says. Many told her they were
“so completely wiped out” after a court appearance that they had to take time
off work to recover.
Part of what Macfarlane hopes to do is
normalize this type of response so judges won’t dismiss the self-reps they see
as nutcases.
“These are not crazy people,” she
insists. “We’re talking about normal people who are stressed to the nines,
whose lives are falling apart — that’s why they’re in family court — and now
they have to deal with all of this.”
Many of the self-represented litigants
Macfarlane interviewed have lost faith in the justice system. “People are really
angry,” she says.
“What is it exactly we are offering
people when we say access to justice? If we continue to use it as a mantra
without really delivering on it, and we don’t listen to what people are saying,
I don’t know where this is going except down.”
Everyone in the justice system is
scrambling to adapt, Macfarlane acknowledges. The most common response is to
put more information for self-represented litigants on line. “That’s not
necessarily a bad thing,” she says. But people need more than just online
information.
“They need face-to-face, morale-boosting
support, hand-holding. They need coaching. They also need to have a little bit
of time with someone who can say, strategically, ‘Think about what you want to
do here. Should you be proposing a settlement?’”
In Canada, the most interesting model is
in British Columbia, which has opened four Justice Access Centres — essentially
drop-in centres for people without lawyers.
Staff circulate and guide people as they
work on their cases at computers. “It sounds like a small thing, but actually,
it’s a big difference,” Macfarlane says. “That’s the kind of support that
people need.”
Judges must also change, though
Macfarlane understands their reaction to the tide of self-reps swamping their
courtrooms. “This is not the gig they signed up for,” she says. “They signed up
for a gig in which they would have nice, respectful, courteous, arcane legalese
conversations with lawyers.”
Judges are appointed almost exclusively
based on their knowledge of the law. But they need a completely different set
of skills to deal effectively with a docket filled with self-represented
litigants, Macfarlane says.
“A lot of what goes on in family courts
is not rocket science,” she says. “But it requires someone who’s willing to ask
questions, to listen to the answers, to keep control in their courtrooms. It
requires all of these other skills that don’t have much to do with knowing
about the law.”
For his part, Jamie Ryan plans to go
back to court in January to try again to win equal access to his daughter. He
already has joint custody, but only 25 per cent access. He has taken an
apartment in Toronto to be close to his child, and spends about two-thirds of
his time there.
“I’m going to do much better this time
around, for sure,” he says confidently, “because I think I can present myself a
lot more clearly. I’m still susceptible to the bias of the court system and the
details of it, but I think my chances will be a lot better this time.”
