‘ Lay litigants’ add to delays in B. C. courts
Study finds as many as 80 per cent of people going solo in the legal system
As many as 80 per cent of people involved in civil or family legal cases choose to represent themselves in B. C. courts, leading to more problems and delays for an already backlogged justice system.
The high percentages were discovered by University of Windsor law professor Julie Macfarlane in an ongoing study exploring why people choose to self- represent in Canadian and U. S courts. Macfarlane found between 60 and 65 per cent of people in civil cases and 80 per cent in family cases are navigating the B. C. court system on their own.
The number of self- represented litigants found in the study came as a surprise to B. C. Supreme Court Chief Justice Robert Bauman.
“The numbers are much higher than we would have expected,” he said in an interview Monday. “We would have said 20 to 25 per cent. We thought 20 to 25 per cent were matters of concern.”
Bauman said the courts do not see “lay litigants” as a problem clogging the courts, but rather as an unfortunate result of the poor economy, which has resulted in cuts to legal aid.
“They have every right to be there,” Bauman said of self representing litigants.
But he conceded some people do get “lost at sea” when trying to navigate the legal system, which he acknowledged can be complicated for the average person.
“They take longer than a lawyer would.”
While some self- litigants have a negative experience in court, Bauman said rudeness from judges is not appropriate.
“In fairness, these situations
I found it very stressful. The learning curve was very high ... but I would go through all of that again for sure
GRIMM CULHANE REPRSENTED HIMSELF IN COURT
become very frustrating for all involved,” he added.
But people are intelligent and are using online services such as Click Law ( www. clicklaw. bc. ca) to learn about the legal system before coming to court, Bauman said.
Study author Macfarlane said the numbers are troubling because the system is not designed for litigation by nonlawyers.
“Obviously it’s a problem ... if there are a large number of people using the system who either don’t know how to use it, or have unrealistically high expectations of what they’re going to be able to do,” she said in an interview Monday.
“There’s a big gap between what the public imagines they can get by going to court, and what the courts can actually offer them.”
Macfarlane’s concerns echo the conclusion of a 2011 report by the B. C. Public Commission on Legal Aid which warned that more self- representing litigants would cause further delays in B. C. courts.
The report found individuals who self- litigate are generally unable to navigate the pretrial process. Consequently, cases are forced to go to trial as opposed to being settled faster and less expensively out of court.
Macfarlane said the majority — 75 per cent — of those who choose to self- represent are lower- income individuals who do not qualify for legal aid but cannot afford a lawyer. The remainder are largely individuals who are able to pay for counsel, but feel a lawyer is a waste of money.
Both groups, Macfarlane said, consistently express the same frustrations navigating the court process, including not being taken seriously by the judge and not being provided with help in filling out forms.
Helen Smythe, 52, said her experience self- litigating was horrible.
“It had to be the most humiliating thing that I’ve ever been through in my life,” said the Vancouver resident.
Smythe — who estimated her family income is approximately $ 100,000 a year — used a lawyer during the first part of her divorce proceedings but decided to self- represent because she got “absolutely nothing” for the “huge amount of money” she was paying.
She ended up abandoning the court process out of frustration and convinced her ex- husband to go to mediation to resolve their dispute.
“The judge wasn’t really interested in hearing from somebody who is self- represented, and he shouted at me and his whole manner was really offensive,” she said. Nonetheless, Smythe said she would self- represent again.
Vancouverite Grimm Culhane described an entirely different experience in court.
Culhane, 46, said he lost his legal aid lawyer due to time constraints during a battle with his ex- girlfriend over child support payments. He said he chose to go it alone because he had “nothing else to lose.”
“The judge did actually show me courtesy and respect as someone who is not a lawyer,” he said, although the lawyer for his ex- girlfriend did not take him seriously, he added.
Culhane said he was able to successfully argue for a reduction in the child support payments he is required to pay, and said he’d self- represent again if he found himself facing another court battle.
“I found it very stressful. The learning curve was very high ... but I would go through all of that again for sure,” he said, adding that he doesn’t have a “hefty” lawyer bill while his exgirlfriend does.