Going it alone
Survey paints troubled picture of litigants who represent themselves
Nicholas Bala John-Paul Boyd
September 23, 2014
There is growing concern about the increasing numbers of family law litigants without representation, regarding the negative effects for these vulnerable individuals and their children, and about the costs for the justice system.
Our recent survey of Canadian lawyers and judges confirms this is a serious and growing problem, but also reveals that the issues related to self-representation are complex and defy simple solution.
While judges are striving to be fair to these who are self-represented, these litigants face significant challenges but also impose costs on those who have lawyers.
With the support of the Canadian Research Institute for Law and the Family and the collaboration of Rachel Birnbaum, we surveyed the lawyers and judges attending July’s National Family Law Program at Whistler about a number of issues, including self-represented litigants.
About a third of those attending participated in the survey. The 176 respondents, 13 per cent of whom were judges, were from across Canada.
Though the West was somewhat better represented—not surprising given the locale of the conference—there were no significant differences in the responses by region. Respondents were quite senior, with an average of 18 years’ experience in their current profession. In the past year, 15 per cent of lawyers’ cases and 46 per cent of judges’ cases involved a self represented party for all of the litigation process.
Further, 78 per cent of respondents reported that in their experience the number of self-represented family litigants increased over the past three years; only one lawyer reported a decrease. The vast majority of respondents said the primary reason litigants represent themselves is because they can’t afford to retain, or continue to retain counsel.
However, half also said that some litigants choose to proceed unrepresented because they believe that they know enough to manage their case themselves.
Further, 41 per cent said that some litigants think that counsel will increase the time and cost necessary to resolve their case, and 24 per cent thought that some believe that hiring counsel will exacerbate the adversarial nature of their case.
Almost half of respondents think that men tend to be self-represented for somewhat different reasons than women, with women having primarily financial reasons for not having a lawyer, and men being more likely to proceed without a lawyer in the belief that this would not negatively affect the outcome for them.
When litigants proceed without counsel, 83 per cent of respondents said that settlement before trial is less or much less likely when one party is self-represented, and 47 per cent said that settlement is less or much less likely when both parties are self-represented.
This low rate of settlement may be attributable to unrepresented parties’ assumptions about how their cases will turn out.
Almost half of the judges and two-thirds of lawyers said that self-represented parties always or usually have unrealistically high expectations for the outcome of their cases.
Making matters worse, cases involving unrepresented litigants tend to take longer to resolve than cases in which all parties are represented. More than 90 per cent of respondents said that challenges always or usually arise because of self-represented litigants’ unfamiliarity with the law of evidence, the legislation applicable to their case, the rules of court, and hearing and trial processes.
Less than six per cent of respondents said that these problems arise only sometimes or rarely. When cases involving selfrepresented litigants are resolved, their unrealistic expectations of outcome pair with results that are worse than what would have been achieved with counsel.
However, two-thirds of respondents believe that judges treat self-represented parties “very fairly,” and only one thought that judges treat these litigants unfairly.
The perception is that self-represented litigants do worse than represented litigants on economic issues. They may do a slightly better job with parenting issues, but only six per cent of respondents said that selfrepresented litigants achieve better results on parenting arrangements, and only two per cent said they achieve better results on support issues. Litigants without counsel are often caught in a downward spiral.
They 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 doubtless increases the length of trials and the number of adjournments, and when their trials do complete, self-represented parties usually achieve worse results than they would have with counsel.
Not surprisingly given these results, 84 per cent reported that the fact that one party is self-represented increases the cost of dispute resolution for a represented party.
Respondents were also asked their views on how to improve selfrepresented litigants’ use of the court system.
Almost half the judges and more than a third of the lawyers said that it would help to have plain-language guides to court processes, the rules of evidence and the legislation.
More than a third of judges and almost half of the lawyers support requiring parties to attend a mandatory information program following the commencement of proceedings.
About half of the judges and lawyers supported giving paralegals a limited role in family law disputes. Interestingly, the measures that received the least support included actually simplifying court processes, the rules of evidence and legislation, or the appointment of counsel as amicus curiae.
When all parties are unrepresented, about a quarter of judges and lawyers support the adoption of an inquisitorial approach, and 23 per cent of judges and 36 per cent of lawyers supported the use of a mediation-litigation hybrid process, in which judicial mediation is attempted and trial ensues if settlement is not achieved.
Nicholas Bala is a professor of law at Queen’s University, and John-Paul Boyd is the executive director of the Canadian Research Institute for Law and the Family. They gratefully acknowledge the collaboration of Dr. Rachel Birnbaum of Western University in this study.
Commentary by the Ottawa Mens Centre
If there is one name in Ontario that makes fathers want to vomit its that of Nicholas Bala.
Nicholas Bala is perhaps one of the most aggressive feminists in Ontario and a blatant promoter of Ontario's Gender Superiority program while pretending to be an objective expert.
An expert he is at destroying any semblance of legal rights for fathers and that of children.
What he does not address is that Legal Aid Ontario habitually deny fathers legal aid in criminal, family and child protection matters at the direct or indirect request of extreme feminists in the community who abuse their absolute power.
The trials he refers to generally never take place as a result of pre-emptive motions for summary judgment that forever bury the evidence. As a result, tens if not hundreds of thousands of children grow up without a father thanks to the likes of Nicholas Bala.
Ottawa Mens Centre