It used to be my view that most self-represented litigants (“self-reps”) were victims in the legal system. I was extremely sympathetic to self-reps, as I was one myself. Self-reps are generally perceived to be vexatious individuals, who fumble along in court as they hopelessly try to keep up with court procedures, frustrating everyone’s time. I believed that a judge, and perhaps even opposing counsel, should be forced to assist self-reps to even out the playing field. Unfortunately, I seldom took into account the rights of the represented. After all, they are fortunate enough to have a lawyer, while the self-rep is exposed to an unforgiving environment of strict rules and complex legal principles. Why should I give any consideration to the represented party?
It is not until I was studying the pending Supreme Court matter Pintea v Johns that I gave the issues deeper thought. I had not considered there could be middle class litigants, who have no choice but to hire lawyers. Imagine a mother who is fighting for custody and access rights, against a former abusive spouse who’s depriving her right to see her children. She is so emotionally affected by the thought of having to confront her husband that she is unable to speak in front of a judge. She needs a lawyer to advocate on her behalf. She goes out to fundraise from her community and borrow money from her family in order to retain counsel, the best she can afford. Imagine the husband has chosen to be self-represented because he too cannot afford counsel. Yet, he is confident enough to hold his own in front of a judge. Imagine the self-represented father being granted extensions to deadlines, or dismissals of contempt orders which were issued as a consequence of his defiance of court procedures. Such seemingly kind measures to the self-represented party further aggravates the represented mother’s suffering by driving up her legal fees, as her lawyer is forced to return to court repeatedly to make up for missed hearings. Does it still make sense to feel like we want to compensate for the self-represented father’s ignorance, and to overlook the rights of the represented mother?
It is true that many self-reps suffer as a result of their ignorance. But represented parties are not always the “wealthy bad guys” either. Just as we have to be careful to guard against prejudice against lawyers or self-represented persons, we also have to remember that everyone should be treated fairly and equally, regardless of their wealth, or representation status. The rules should apply to everyone, regardless of whether you have a lawyer or not.
I cherish the fundamental values that are the foundations in our court process: the need to respect the procedural rules in order to allow for the most expeditious means to reach a resolution on the merits, the importance of consistency and equality in applying the rules equally to every party. I believe we need to balance the rights of self-reps with those of represented parties. I no longer subscribe to the view that we should bend the rules in order to accommodate for self-reps, unless there was consent from all parties on the outset, and transparency as to how this will be done. Self-reps, like everyone else, have rights, as well as obligations. They have to be held accountable to their behaviour in conducting their own litigation. They have a duty to know and abide by the rules.
Going back to the story above, the availability of limited scope retainer services (“LSR”) to the husband means that he can no longer rely on excuses of ignorance to prolong litigation. Allowing self-represented litigants to conduct litigation free from obligations to abide by the rules also penalizes the self-reps who do choose to hire LSR lawyers. The availability of LSR is one solution to the current problem. It maintains the rigours of the system, while providing assistance to self-represented litigants. Creating a double standard is inherently unfair: it leads to inconsistency, and discriminates against litigants who do seek legal assistance from lawyers, whether on a traditional or limited scope retainer.
I support limited scope retainer services because they are essential to ensuring a properly functioning judicial system. But because many lawyers have expressed concern about offering this type of service, I helped organize a group of lawyers who offer this type of services, the Self-Rep Navigators to get together and support one another in developing limited scope practice.
My support for limited scope services does not mean I disapprove of full retainers should the circumstances require it. Not everyone can represent themselves effectively. It is not my intention to encourage every litigant to represent themselves, although it is my intention for all litigants to be educated about the litigation process. My wish is for all litigants have access to lawyer’s assistance with their court case through the availability of LSR. My desire to offer and develop LSR is to provide a means to attain justice for those who couldn’t afford it otherwise. It is not to advocate for self-reps per se. One’s representation status should have no bearing to the merits of one’s case.
I hold great respect for litigators, because I myself do not possess the skills and fortitude in character to be one. I hope the Navigators will be leaders in LSR practice, and that we possess our own unique and independent voice. The Navigators are not advocates for self-reps. We care about access to justice, a right that belongs to everyone, regardless of status. That is what I hope the purpose and the message of the Navigators would be.