When I was a litigant, I had often wished that the court system was simpler. For instance, why can’t we just go to the court and tell our stories, and the judge will take care of the rest? Now that I learned more about how our system works, I realize it is not so simple when it comes to ensuring justice is delivered.
Let me go back to the case I mentioned in my last blog entry. The matter revolves around a bicycle accident at a charity race. For a review of the facts, click here: charity race
A few questions came to my mind as I thought about this case in relation to self-representation. What would have happened, if one of the parties were self-represented? Suppose Mr. Kempf, the plaintiff, was the self-represented litigant (SRL). Would he have known how to respond when the opposing counsel added the defence of volenti (voluntary assumption of risk) to its position? If you read the actual case, you will realize that the legal arguments raised by the lawyers were not simple, common sense arguments.
These questions illustrate two main challenges we face when there are self-represented litigants at court. One problem is that it becomes quite difficult for a judge to remain remote and impartial. The question of how much help a judge should give to each party to ensure justice is a very difficult one to answer. If Mr. Kempf were self-represented and has no legal background, would it have been fair for the judge to come up with legal arguments on Mr. Kempf’s behalf, because he was an SRL, in order to even out the playing field, so to speak? Any time a judge raises an argument to help any one of the litigant, out of her own initiative, even if it is “in the interest of fairness”, it can also be interpreted to be bias. In a traditional adversarial process, presenting each side’s best position is the job of the legal professional. But, what is a judge to do when one side is an SRL? Even more interestingly, how would this case have proceeded if both parties were SRLs? Perhaps neither of them would have raised legal arguments. Would it lead to a just result?
Another problem when parties are self-represented is ensuring both sides are competent enough to present to the judge the best legal arguments available. Suppose that, in this case, the plaintiff was an SRL, but yet, he was able to present a legal argument. Meanwhile, the opposing litigant, the defendant, came to court with “common sense” arguments. The plaintiff now has the advantage because it is the only one presenting a legal argument. Clearly this is unfair! We can all understand that fairness dictates that a judge should hear both sides’ legal arguments. This is fundamental to how our adversarial system works. The problem is that often, litigants believe that common sense arguments are good enough. They do not realize that writing legal arguments require legal training. And, as mentioned in the previous paragraph, judges cannot jump in to argue on behalf of any party. The disparity of competence between the parties does not lead to justice being served.
Even though the traditional litigation model has become quite complex to ensure a rigourous justice system, we have to balance the quest for perfect justice against the need to keep costs proportionate. Currently, the general impression is that legal fees are excessive to the point where many feel they cannot afford representation. The challenge is to modify the system is such a way, so that legal fees are affordable, without sacrificing the rigours of the system. There are no quick solutions, but I am confident that when we, legal professionals and litigants, all listen to one another on how to improve the system, we will find solutions that much sooner.