Can’t afford a lawyer? How courtroom innovations help self-represented litigants
Courts in New York, the U.K. and Windsor, Ont., are making life easier for the growing number of people who end up representing themselves.
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Justice Fern A. Fisher, seen in her New York chambers, began a program to train volunteeer law students to help shepherd tenants with legal issues through housing court. An evaluation is beginning this summer that will help to quantify the success of these "navigators."VIEW 2 PHOTOSzoom
TINA FINEBERG / THE ASSOCIATED PRESS
Justice Fern A. Fisher, seen in her New York chambers, began a program to train volunteeer law students to help shepherd tenants with legal issues through housing court. An evaluation is beginning this summer that will help to quantify the success of these "navigators."
By: Rachel Mendleson News reporter, Published on Sat Mar 21 2015
Navigating the courts without a lawyer is a gruelling and daunting experience that has become all too common among Ontario’s growing masses of self-represented litigants.
The high cost of lawyers, combined with the erosion of legal aid and the proliferation of free legal resources on the Internet, has led to the justice system becoming what Julie Macfarlane, a law professor at the University of Windsor, describes as “a completely different universe.”
The shift has been particularly seismic in the area of family law, where Macfarlane estimates that more than half of all litigants are now self-represented, numbers that are consistent across North America, the U.K. and Australia.
The implications can be serious. Lori Murphy says high legal fees drove her to represent herself in a yearlong dispute against her ex-husband, after he filed a motion to have his unpaid child support erased.
“It’s emotionally, financially and physically stressful,” said Murphy, whose ex was represented by a lawyer. “It consumed my whole life.”
The gap between those who can afford a lawyer and those who qualify for legal aid is now so significant, says Macfarlane, that it’s “not something we’re going to be able to solve exclusively by putting more money in public legal services.”
“We have to start figuring out how to deliver legal services differently,” she said.
With this in mind, judges, law professors and volunteers are coming up with new ways to increase access to justice for self-represented litigants. Here is a look at how three jurisdictions are levelling the playing field.
New York City
When Justice Fern Fisher was head of New York City’s civil court in the early 2000s, she was struck by the fact that the vast majority of tenants in housing court, 98 per cent, did not have a lawyer.
“Housing law in New York City is very complicated,” said Fisher, who is now deputy chief administrative judge for the city’s courts. “It’s also a crisis situation for the person who is about to lose their home.”
So Fisher’s office started training volunteer law students to shepherd tenants through the system, making them aware of their possible defences and connecting them with social services.
The initiative was formalized last February, on a pilot basis, when the state’s chief judge created the Court Navigator Program to assist unrepresented litigants New York City in the areas of housing and consumer debt, a first in the U.S., Fisher said. There are plans to expand the program this year to family court and uncontested divorces.
Since launching, the program has included about seven paid and 60 unpaid navigators, which now include college students.
There are rules about what navigators can do and can’t do — for instance, a navigator can help with scheduling proceedings and gathering relevant information, but can only address the court to answer factual questions, and is not allowed to perform any service that constitutes the practice of law.
An evaluation beginning this summer will help to quantify the success of navigators, but Fisher said the anecdotal results are “very good.”
“There are more defences being raised,” she said. “Our litigants clearly have a better feel about their experience in court.”
The idea appears to be catching on: The Legal Information Society of Nova Scotia is currently reviewing the navigator program with an eye toward implementing it in that province, and Fisher says she has received inquiries from courts in other U.S. states.
Unlike some other jurisdictions, the Law Society of Upper Canada does not allow paralegals to practise family law in Ontario. According to Macfarlane, that’s a major hurdle in closing the access-to-justice gap.
But there are other ways to help self-represented litigants besides providing legal advice. Last year, Macfarlane started a coaching program, matching law students with local self-represented litigants, a first in Canada, she said.
As a volunteer coach, third-year law student William Good says he spent anywhere from two to three hours per week assisting a self-represented plaintiff in a civil case.
He says his most notable contributions included listening and providing a rational perspective.
“Most self-represented litigants just want somebody to hear them — being able to talk about their problem without somebody judging them,” Good said.
In this case, he said the plaintiff largely “knew what her legal matters were.”
“She needed somebody who could help her see through the mud of the whole issue,” he said.
England and Wales
For decades, courts in England and Wales have allowed trusted advisers without legal training — dubbed “McKenzie Friends” — to provide unrepresented litigants in family court with moral support, as well as assistance with note-taking and procedural matters.
The role, according to a report in The Scotsman, dates back to a 1971 divorce case, where the unrepresented husband won the right to appeal on the basis that the judge had excluded his friend, who was trained as a lawyer in Australia but not in the U.K., to assist him at trial.
More recently, McKenzie Friends range from volunteers to paid professionals, with fees that tend to be about 25 per cent of what lawyers charge, said Ray Barry, who has worked full-time as a McKenzie Friend in England’s Midlands region for nearly six years.
Similar to the law student coaches in Windsor, Ont., and courtroom navigators in New York City, McKenzie Friends can provide pointers on legal procedure but can’t address the court.
In response to concerns about the lack of regulation, Barry recently set up a trade association for McKenzie Friends, which sets out professional standards.
“When someone goes into court as a McKenzie Friend, they can (now) present their credentials to the judge,” Barry said. “That will give the judge and the opposing lawyer a degree of confidence that the person will be competent in what they’re doing.”