Rush to adapt misses the profession’s biggest problem: Unrepresented litigants

Monday, March 12, 2018

Even genuine self-examination runs the risk of succumbing to navel gazing. So it is with the legal profession these days.

Never before have lawyers been so caught up in rapid change. And never before have they taken such a long, hard look at themselves. Should non-lawyers be allowed to own law firms? How do we promote diversity? How do we root out harassment? How do we meet the challenge of rising legal costs? How do we attune the law and the business of law to the complexities of technology? How do we improve access to justice?

There’s a lot of good work being done in these and other areas, by Canada’s law societies and law firms. But in the frenzy to get it all right, the profession is effectively ignoring the biggest, most immediate problem staring down our legal system: the unrepresented litigant.

Think about it: in the frenzy to keep up with the rest of the world, aren’t the questions we’re asking — for the most part — all about the lawyers? The reason that this isn’t as obvious as it should be, perhaps, is because the profession tends to cloak its investigations and decisions in the rubric of “the public interest.” Sometimes we sashay over to “clients’ interests” or “client demand,” but in the end, it’s all about what lawyers should do.

We don’t give nearly enough thought to unrepresented litigants because the core issue is not about us: lawyers are affected only indirectly, when dealing with the unrepresented clogs dockets or complicates or prolongs proceedings.

So it’s no surprise that, if the truth be told, unrepresented litigants are unwelcome in our own and other legal systems. The Judicial College of England and Wales, which is responsible for training issues in the judiciary, said as much when it pointed out in its recently released Equal Treatment Bench Book, a 422-page guidance on equal treatment, that unrepresented litigants (called litigants in person, or LiPs, in the U.K.) should not be seen as an unwelcome problem for the courts.

The point is that unrepresented litigants are a reality, not a problem. From all appearances, they are becoming part of the fabric of justice in Canada. Talk about access to justice until you’re blue in the face, but if the discussion continues to focus primarily on how people can better access justice through lawyers, it remains flawed.

It’s not that our courts aren’t doing their best to give unrepresented litigants a fair shake. But they’re doing it within the context of a system that sees representation by counsel as a given. The upshot is that the unrepresented will always remain the exception when they can no longer, by any stretch of the imagination, be so characterized.

A decision from the U.K. Supreme Court as recently as last month is demonstrative of the straitjacket that confronts unrepresented litigants.

The 3-2 majority in Barton v. Wright Hassall ruled that Mark Barton, an unrepresented claimant, would not be granted relief for breaching the rules governing e-mail service by failing to confirm in advance that the defendants, a law firm, would accept service in this manner. The result was that the deadline for service had expired and Barton’s claim for professional negligence was struck out.

Lack of representation, the majority reasoned, would not usually justify applying lower standards of compliance with rules or court orders to unrepresented litigants because “The rules do not in any relevant respect distinguish between represented and unrepresented parties.” Unless particular rules were “particularly inaccessible or obscure,” the onus was on unrepresented litigants to familiarize themselves with the proper procedures.

The minority pointed to the fact that the defendants were no less than a law firm, and service of the claim, even if flawed, had certainly alerted them to the action against them.

As I see it, the difference between the majority and minority decisions boils down to this: are the rules of civil procedure aids or impediments to dealing with cases justly? Three judges saw the rules as they stand to be impediments, two as aids.

Still, Justice Barry Leon, Commercial Court judge of the East Caribbean Supreme Court and formerly a litigator and arbitrator in Ontario with Torys LLP and Perley-Robertson, Hill & McDougall LLP, believes the decision may be a catalyst for change.

“It is significant that the U.K. Supreme Court went far beyond just empathizing with the plight of litigants in person who may have little option but to represent themselves,” he noted. “Unanimously, it supported consideration of ‘radical changes’ to procedural rules ‘to keep the doors of justice open to all.’ ”

The Supreme Court went on to say that if the existing rules are an “impediment to access to justice for unrepresented parties the answer is to make very different new rules rather than to treat litigants in person as immune from the consequences of the existing rules.”

As Leon sees it, that’s “a clarion call to Canadian courts in all provinces and territories — judges, advocates and rules committees — to consider making very different new rules too.”

After all, Ontario’s Rules of Professional Conduct do say on their face that their purpose is to secure “the just, most expeditious and least expensive determination of every civil proceeding on its merits.”

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