Written by Irvin Schein and originally published at www.irvinschein.com.
In an article posted recently in the online version of Canadian Lawyer, Margaret Waddell put forward a proposal which she entitled “A Radical Idea for Giving the Average Person Their Day in Court”.
In her article, she suggested that asking whether or not the average person can afford a trial is the wrong question. Instead, we should ask ourselves whether we can afford to maintain a judicial system that effectively bars the average person from being able to take his or her civil dispute to trial with the benefit of legal representation.
There is simply no question about the fact that the average person is going to have a lot of difficulty paying for a lawyer to take a matter to trial, assuming that by “average person”, we are talking about someone who earns at the level of Canada’s national income.
Litigation lawyers charge their time out at varying rates, generally dependent upon experience and, to some extent, geography. On balance, in my view, one gets what one pays for. That does not mean that a person will only be able to get proper or even adequate representation by paying top dollar. I know many young litigation lawyers, including those at my own law firm, who can do an excellent job at a reasonably hourly rate. My definition of “reasonable”, however, may not be shared by everyone. Even young lawyers can be costly for average income earners.
For those whose incomes are below average but nowhere near the poverty line, the justice system approaches complete inaccessibility. Family law courts in particular are inundated with cases where at least one of the two parties are unrepresented. Where an unrepresented party must go into battle against a lawyer acting on the other side, the result can be devastating. What may be even worse is that the unrepresented party will usually leave the courtroom without the first clue as to what just happened to him or her, or what he or she could have done prior to the hearing in order to increase the odds of success.
In smaller claims, an attempt has been made to address the point by increasing the Small Claims Court jurisdiction to $25,000.00. The Small Claims Court is designed for people to be able to represent themselves without counsel. While I do not have any statistics to offer, I have to believe that this has made a positive difference.
Ms. Waddell’s radical idea, incidentally, is that every lawyer ought to choose a case in which the client cannot afford to proceed and agree to act without charging a fee, or at a substantially reduced rate, or on a contingency. By doing so, she suggests, the client can be shown that he or she is not a faceless commodity and that the legal profession is still prepared to help the average Canadian to obtain access to justice.
Ms. Waddell’s proposal is a laudable one but, I fear, unlikely to gain traction. While many law firms would be prepared to consider acting without charge where doing so serves the public interest, or where humanitarian considerations exist, the idea of ignoring economic realities out of general principle is not likely to be viewed favourably by very many lawyers.
In my view, a better answer is to pursue the policy that gave rise to the increase in the Small Claims Court monetary jurisdiction by making it easier for people to represent themselves. The first step to be taken in that process, as far as I am concerned, is to simplify the route which one must take to get to trial.
The need for simplification is nowhere clearer than in the family law context where, as I have indicated, many cases involve unrepresented parties. Although I do not practice in the family law area, I have been present in Family Law Court and I have been astonished at the inability or the unwillingness of judges to take into account the fact that they are speaking to unrepresented litigants who are familiar with neither the procedure nor the jargon associated with court proceedings. These are people who leave the courtroom completely mystified and, even worse, feeling as if they have no chance of ever receiving what they would consider to be their day in court. I would bet that if the stakes were not so high, many would just give up.
I do not believe that lawyers are going to be increasing the number of pro bono cases they take on any time soon. As Ms. Waddell points out and as many of us know, we do have a problem with access to justice. In my view, the answer is to increase the opportunities for people to represent themselves where they choose to do so either because they cannot afford a lawyer or for any other reason. This means, firstly, that the monetary jurisdiction of the Small Claims Court, with its enormously simplified procedures, should be increased even further.
Secondly, parties involved in disputes in that court should be expected to represent themselves. Indeed, a party wishing to be represented by counsel should have to demonstrate a need for such representation by satisfying a judge, on motion, that the party is incapable of representing himself or herself.
Thirdly, and specifically with respect to parties involved in matrimonial disputes, the process must be simplified. In that respect, I am not talking about even more steps designed to encourage or, as some might say, coerce parties into attending endless settlement conferences and discouraging them from ever actually entering into a courtroom to have a dispute resolved once and for all. I am talking about simplifying the rules, eliminating unnecessary steps, and translating the rules into plain English so that people understand what they can expect in a courtroom, and what will be expected of them.