The Canadian Bar Association
Family

Counsel must be careful not to ‘bulldoze’ self-reps

Feelings of distress and disrespect outlined in an open letter to the judiciary by self-represented litigants may stem from the inherent complexity of the law and legal process, says Toronto family lawyer Audrey Shecter.

Speaking to her own extensive experience acting against self-reps, Shecter says she hasn’t witnessed the alienation outlined in the letter, whose authors say they’re tired of being seen as “annoying obstacles unworthy of compassion and understanding.”

“I wonder if some of the disrespect felt by the authors of the letter comes from the court applying legal principles and engaging in processes that self-represented litigants don’t understand,” says Shecter, lawyer with Beard Winter LLP.

The letter, sent by the National Self-Represented Litigant Project to the Canadian Judicial Council, was written by six unrepresented litigants who say judges are not treating self-reps with enough respect.

“When you meet us, please do not assume that we are enjoying ourselves – we are not,” the letter states. “Please do not assume that we have chosen to represent ourselves because we believe that we can be brilliant trial lawyers.”

“It’s been my experience that in court judges are very careful to treat self-represented litigants with patience and to give them much more latitude than counsel would receive,” Shecter tells AdvocateDaily.com.

But in any discussion about self-reps, says the family lawyer, it’s important to acknowledge there are different types of litigants.

“Clearly the self-represented litigants in this letter are articulate, thoughtful people who are assessing the system and who are able to argue cogently,” she says. “There are many self-reps who don’t understand the process and who don’t abide by the rules.”

Shecter says it’s a delicate balance for counsel acting against the self-represented litigants, as any deviation from procedure can lead to accusations of bullying. 

Something as basic as faxing documents – email is not yet considered valid for sending files – can create issues, says Shecter.

“Acting against a self-represented litigant often makes things much harder," she says. "From my point of view, I have to be extremely careful. If a self-rep asks me what to do procedurally, I have to make it crystal clear that in doing so, I am not acting on his or her behalf."

Shecter says, “As a lawyer, it’s a challenge because I have to balance the needs of my client and the need to advance my client’s case with the perception of having an unfair advantage over the self-rep.”

In terms of improving the system, Shecter says the Family Law Rules are already written in a user-friendly way so they can be understood by non-lawyers, but she says efficiencies may be found elsewhere.

“The courts have family law information centres, and there are duty counsel in court that self-reps can get advice from,” she says. "But those resources don't seem to extend far enough."

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