Self-represented litigants ‘treated with contempt’ by many judges, study finds

Self-represented litigants ‘treated with contempt’ by many judges, study finds 

BY DON BUTLER, OTTAWA CITIZEN  

JANUARY 1, 2013

Jamie Ryan has been representing himself in Family Court in a custody and access dispute with the mother of his young daughter.

Photograph by: Chris Mikula , Ottawa Citizen

OTTAWA — Jamie Ryan has been fighting for equal access to his young daughter since the day she was born nearly three years ago.

When his ex-girlfriend announced she was moving to Toronto and taking their daughter with her, Ryan hired a lawyer and spent $30,000 trying to stop her. The judge ruled against him. “So that was a waste of money, really,” he says.

Since then, Ryan — who owns an Ottawa company called Executive Golf — has been representing himself in court. So far, he’s appeared before seven different judges. Despite some limited success, the experience has been deeply disillusioning.

The judges, he says, treated him like a criminal. “Here I am, trying to be a good father. That’s my whole mission. I enter the court system, and I’m being talked to like a criminal. It’s very insulting and degrading. I’m asking the court for help, and this is the attitude I’m getting.”

Trying to navigate the justice system without a lawyer is the hardest thing he’s ever done, Ryan says. The province’s Family Law Information Centre at the Ottawa courthouse has been of some help, he says, “but they’re supporting a system that’s just so archaic and detailed, and it’s built around criminality. It’s just a vortex of confusion and delays and expenses.”

According to the preliminary results of groundbreaking new research, Ryan’s experiences are typical of lawyerless litigants.

Julie Macfarlane, a law professor at the University of Windsor, has interviewed about 280 self-represented litigants — “self-reps,” for short — in Ontario, Alberta and British Columbia. It’s one of the first times anyone has ever collected their stories.

“What has surprised me is how traumatized people are by the experiences they’re having, how many lives are getting wrecked, how much anger and frustration there is out there,” says Macfarlane, who plans to publish her findings this spring. “It makes you wonder, given that self-reps are now a majority in the legal system, how much longer the system can hang on.”

The proportion of self-represented litigants varies. But in Family Court, Macfarlane says, it’s always more than 50 per cent, and can rise as high as 80 per cent in some areas. In civil court — Superior Court in Ontario, for example — “I’ve seen anything from 35 to 65 per cent,” she says.

(Macfarlane’s study doesn’t include people who represent themselves in criminal court, where legal aid is available for those who qualify. But they are a growing presence even there.)

According to Macfarlane’s research, Ryan’s rough treatment by judges is the norm for those who appear in court without lawyers. While there are notable exceptions, most judges believe that “if you’re a self-rep, you’re a pain in the ass, you’re going to be really annoying, you’re going to be really unreasonable,” Macfarlane says. “And they get treated with contempt.”

As part of her project, Macfarlane interviewed half a dozen lawyers who represented themselves in court. Even they were shocked at how dismissive judges were. “They couldn’t believe it,” she says. “It has suddenly taken the blinkers off their eyes.

“Even if only 10 per cent of what I’m being told is factually correct,” Macfarlane declares, “it would be really bad. People talk to me, only slightly tongue-in-cheek, about post-traumatic court syndrome.”

The jaundiced judicial attitude is a holdover from an earlier era, when many of those who appeared in court without a lawyer were mentally disturbed, says David Scott, a prominent Ottawa lawyer.

“That’s changed completely,” says Scott. Now, “the unrepresented litigant is frequently smarter than the represented litigant and his lawyer combined. The idea that all these people are deranged is over.”

Within the legal profession, what to do with self-represented litigants “is now the hottest topic on the street,” says Scott. “This is a huge management job for the courts, and we’re just beginning to deal with it.”

For the past 20 years, Macfarlane has trained judges at the National Judicial Institute. “In the last five years, this is what judges want to talk about all the time — how do I deal with self-reps?” she says.

Cost is the main reason people go to court without a lawyer, Macfarlane says. Many start off with a lawyer, spend $5,000 or $10,000 on legal fees, then run out of money.

Many people only chose to represent themselves “in greatest desperation and with huge amounts of anxiety,” Macfarlane says. “But there are also a fairly large number of people who are saying, ‘My lawyer didn’t do much for me.’ Or if they haven’t had a lawyer, ‘Everything seems to be online, surely I can manage this.’”

The vast majority of people Macfarlane interviewed told her the experience was much more stressful, burdensome, difficult and complex than they’d expected. For many, it also took a toll on their health.

“This is the part that has really blown me away,” Macfarlane says. “People consistently describe both physical and mental health issues as a consequence of this” — everything from insomnia and depression to social isolation.

One lawyer — who regularly appears in court on behalf of his clients — was so stressed out after representing himself he had an attack of temporary amnesia, Macfarlane says. Many told her they were “so completely wiped out” after a court appearance that they had to take time off work to recover.

Part of what Macfarlane hopes to do is normalize this type of response so judges won’t dismiss the self-reps they see as nutcases.

“These are not crazy people,” she insists. “We’re talking about normal people who are stressed to the nines, whose lives are falling apart — that’s why they’re in family court — and now they have to deal with all of this.”

Many of the self-represented litigants Macfarlane interviewed have lost faith in the justice system. “People are really angry,” she says.

“What is it exactly we are offering people when we say access to justice? If we continue to use it as a mantra without really delivering on it, and we don’t listen to what people are saying, I don’t know where this is going except down.”

Everyone in the justice system is scrambling to adapt, Macfarlane acknowledges. The most common response is to put more information for self-represented litigants on line. “That’s not necessarily a bad thing,” she says. But people need more than just online information.

“They need face-to-face, morale-boosting support, hand-holding. They need coaching. They also need to have a little bit of time with someone who can say, strategically, ‘Think about what you want to do here. Should you be proposing a settlement?’”

In Canada, the most interesting model is in British Columbia, which has opened four Justice Access Centres — essentially drop-in centres for people without lawyers.

Staff circulate and guide people as they work on their cases at computers. “It sounds like a small thing, but actually, it’s a big difference,” Macfarlane says. “That’s the kind of support that people need.”

Judges must also change, though Macfarlane understands their reaction to the tide of self-reps swamping their courtrooms. “This is not the gig they signed up for,” she says. “They signed up for a gig in which they would have nice, respectful, courteous, arcane legalese conversations with lawyers.”

Judges are appointed almost exclusively based on their knowledge of the law. But they need a completely different set of skills to deal effectively with a docket filled with self-represented litigants, Macfarlane says.

“A lot of what goes on in family courts is not rocket science,” she says. “But it requires someone who’s willing to ask questions, to listen to the answers, to keep control in their courtrooms. It requires all of these other skills that don’t have much to do with knowing about the law.”

For his part, Jamie Ryan plans to go back to court in January to try again to win equal access to his daughter. He already has joint custody, but only 25 per cent access. He has taken an apartment in Toronto to be close to his child, and spends about two-thirds of his time there.

“I’m going to do much better this time around, for sure,” he says confidently, “because I think I can present myself a lot more clearly. I’m still susceptible to the bias of the court system and the details of it, but I think my chances will be a lot better this time.”

dbutler@ottawacitizen.com