I wrote this blog for the National Self-Represented Litigants Project (www.representingyourselfcanada.com) last year, recounting how difficult it was, even for me, to figure out how to navigate through the court procedures as a lawyer. I can imagine how difficult it must be for self-represented litigants. Here it is again, reproduced with permission from NSRLP.
Working with the self-represented
Last summer, one of my clients needed help with a family law matter. The client asked me some procedural questions, such as whether her order would remain in force when a notice of appeal was filed, and whether she would have to attend a hearing relating to trial costs when an appeal was pending.
As I am not a family law specialist, I could not help this person without learning more about family law appeals myself. I have discovered that even when you think you might know the answer, you might be wrong. I have learned from experience that there are other unanticipated case-specific factors which come into play, which would only be known to those who have practical experience. I always prefer to get some more definitive information from someone with more experience.
In this case, instead of referring my client to lawyers, or pestering my colleagues for help, I decided to see if I first could find some answers myself, through research, and assistance from duty counsel or counter staff at the courthouse. Just like a self-represented litigant might.
So began my trip down the rabbit hole….
Searching for answers
I first went to a Family Law Information Centre (FLIC). I lasted less than 3 minutes there. As soon as I disclosed that I am a lawyer (but not specialized in family law) trying to help someone else, the intake staff person immediately cut me off. She said firmly, “Sorry. We cannot help you. You should get yourself educated.” This is an understandable policy – FLIC is there to help laypeople, not lawyers – but this was not a welcome start to my experiment.
Next, I went to the Great Library of the Law Society of Upper Canada (open to the public and hence to self-represented litigants) to research the questions, but even as a trained lawyer with familiarity with legal materials, I could not find clear answers there.
I then decided to continue to seek help at the courthouse at Osgoode Hall, the location of the Court of Appeal and the Divisional Court. I first went to reception and enquired about assistance. The receptionist said I should talk to duty counsel, who would be sitting “outside Courtroom 7”. I was disappointed and rather surprised to discover that the existence of duty counsel services was not clearly marked; there was no signage or booth. I only learned that duty counsel services were available from speaking to the receptionist.
I looked outside Courtroom 7, but noone was there. When I reported this back to the receptionist, he told me that duty counsel is present only on every Wednesday morning (this was late morning on a Wednesday) so I should come back in a week.
Next, I went to the Court of Appeal counter. Since my questions related to the filing of an appeal, as a lay litigant it would be reasonable to assume that this was the court that dealt with issues surrounding appeals. I waited for 45 minutes. There was only one counter staff on duty because it was the lunch hour. When it was my turn, they said I was in the wrong place, and told me to go the Divisional Court counter.
I proceeded to Divisional Court as advised. A staff member came to assist me, but she said she could not help and I had to go to the FLIC office. Of course, I could not go to the FLIC office, as I was turned away earlier.
The net result of my efforts was 2.5 hours spent trying without success to get answers to my procedural questions.
Filling the gap: the “Navigators” model
It is because of this gap of assistance that I believe that we need procedural “navigators” present at courthouses who can assist self-represented litigants. Currently, Nova Scotia has a pilot called the Public Navigator Program that offers assistance by trained lay members of the public and is restricted to procedural information. http://www.legalinfo.org/public-navigator-information/recognition.html.
In addition, a huge difference could be made if lawyers would offer procedural “coaching” services to the primarily self-represented under limited scope retainer agreements. I think the private Bar can make such a tremendous contribution to access to justice by providing this type of critical procedural assistance. Self-represented litigants are constantly confounded and derailed by their unfamiliarity with legal procedure and the lack of definitive answers (as in this case) to important procedural questions.
Comprehensive legal coaching
And of course, lawyers are able to offer a comprehensive menu of legal coaching services, going beyond procedural information. I often refer clients to the Self-Rep Navigators (www.limitedscoperetainers.ca) for coaching that includes legal advice on the merits of their case. I hope that legal coaching will take off as the new trend in legal service delivery, so that all litigants will have access to at least some assistance in their litigation.
How Court houses Can Truly Help
Wouldn’t it be wonderful if self-represented litigants had access to a list or roster of lawyers who offer coaching and other limited scope services, directly from the court house? I was elated to find that the Barrie court house does have such a list Davids v David, 2017 ONSC 3766 (CanLII)! I hope that other court houses will follow suit, so that all litigants will have access to legal assistance.
I’d like to thank Prof. Julie Macfarlane for all her assistance on this article.