Edmonton Journal

Saturday, January 26, 2002

The self-defence argument

Acting as your own lawyer saves the legal fee, but it clogs the court -- and could cost you the case:

LAWYERLESS LITIGANTS: IS JUSTICE BEING SERVED?

Gordon Kent, Legal Affairs Writer
Edmonton Journal

Increasing numbers of people are appearing in courts without lawyers, jamming the Alberta justice system, putting extra pressure on judges and possibly hurting their own cases, say senior legal officials.

It's a trend that concerns Chief Justice Allan Wachowich, whose colleagues must spend more time explaining basic legal procedures to litigants trying to fight cases themselves.

"We not only have to guide them in the court process, but it lengthens our lead time for (other) court proceedings," says Wachowich, head of Alberta's Court of Queen's Bench.

High lawyer fees and an inadequate legal-aid program get most of the blame. Even inexperienced lawyers in some fields may charge $100 an hour, with top-notch talent two or three times more expensive.

That's too costly for many, especially when a single person earning more than $21,504 a year doesn't qualify for legal aid.

"In criminal matters, lawyers may have out-priced themselves," Wachowich says. "Law offices have to charge high prices to maintain themselves, and yet it's prohibitive for many people in society."

Courts are so clogged with lawyerless litigants that the issue will be discussed at a March meeting of the Canadian Judicial Council, which represents federally appointed judges.

Manitoba Chief Justice Richard Scott says the problem has reached epidemic proportions.

"The whole system is being stressed and strained by the fact that many of these people need a lot of help," Scott, who chairs the council's conduct committee, said recently.

Wachowich has seen the number of Edmonton judges hearing motions each morning -- short applications for rulings or orders before or during a trial -- grow from one to three, partly because more people aren't using lawyers.

Last spring, he and Associate Chief Justice Allan Sulatycky attended a conference of the American Judicature Society in California that focused on what has become a hot topic across the continent.

"It's amazing, the fact that this is universal in North America," Wachowich says. "From what we can see, although we have the problem here, there are some states where this has just about brought the system to a halt."

He thinks the situation is better in Alberta than in some other provinces because our booming economy has boosted incomes.

As well, individuals often get at least partial assistance from lawyers, hiring them to work until the money runs out or going it alone until they realize they need an expert, he says.

Still, people pop up without legal representation in every type of case, from smuggling trials to inheritance battles.

Lawyer Angus Boyd says people often don't know the ropes in criminal cases, making mistakes that range from failing to bring witnesses, to not knowing which prosecution evidence is inadmissable, to having no idea how to arrange a plea bargain.

"A number of trials are scheduled that don't need to be, but more than that, almost invariably they cause themselves more harm when they try to act as their own lawyers," he says.

"You wince to watch it happening -- the guy who can't wait to jump up to admit he committed the crime so he can get his story told."

Concerns are strongest in family court. Although statistics are scarce, Alberta Justice estimates about 20 per cent of the 15,000 annual Queen's Bench family cases -- including access to children, custody and maintenance payments -- involve someone without a lawyer.

Jean McBean, senior counsel for the Alberta legal aid family law office, says it's even more common in the less-formal world of provincial court, which also deals with matters arising from family breakups.

She's involved in a pilot project set up in Edmonton and Calgary last year to give people on legal aid better service for family law matters, a field in which private lawyers are often reluctant to act.

"Any judge you speak to will say there's an increasing number of self-litigants in our courts. Any lawyer will tell you this is an increasing problem," she says.

"Why you should care is that the judges who have to hear the cases, who you're paying a very big buck, can't deal with all the things that (they) might also want to deal with because their time is being taken up by self-litigants."

As well, it can boost your legal bill if your lawyer has to spend more time on your case leading an amateur on the other side through the hoops, McBean says.

The growing number of do-it-yourself lawyers means some people are denying themselves a level playing field when they step into a courtroom.

"If a judge doesn't lead him or her through the evidence, then their case may be lost. They may have a very good case, and it just doesn't come out."

DISORDER IN THE COURT

Judges and legal experts are concerned that a trend toward people handling their own court cases is putting a spoke into the wheels of justice. It can bog down courts, hurt the chances of the unrepresented party, and cost you money.

- Today: Lawyerless litigants throughout North America.

- Sunday: Why is it happening? Money.

- Monday: Solving the problem out of court.

© Copyright 2002 Edmonton Journal