When lawyers are only for the rich

The Ontario Court of Justice, housed in a grey building with small slitted windows, could leave any visitor feeling like a tiny speck before the mighty judicial system. For Antoinette Augustine it was especially true. A single mother, she filed a lawsuit against her ex seeking child support and sole custody of their two kids. He hired a lawyer; she was on her own. “I don’t make a lot of money,” says the Toronto child-care worker. “But I make too much to get legal aid, and not enough to pay a lawyer.” Augustine was left with little choice but to represent herself.

Do-it-yourself legal work, she soon learned, isn’t for the faint of heart. “It’s back and forth, speak to the clerks, get it served, get it filed,” says Augustine, who used up all her vacation and sick days in a gruelling odyssey to sort out her family life. The stress took a toll: she broke down crying in front of court clerks, and was often overwhelmed at work. “I’d be online all night, or calling friends,” says Augustine, 36. Despite her best efforts, over a year later, the case had gone nowhere.

Augustine’s experience was harrowing, but it’s far from unique. As the cost of hiring a lawyer soars out of reach, unrepresented litigants are flooding the courts in unprecedented numbers. While no definitive figures exist, some judges, especially in family law, say it’s over 60 per cent in their courtrooms. Chances are, those numbers are going to rise, as the legal profession is now paving the way for even more people to appear without a lawyer. Self-help centres have sprung up in several provinces, and lawyers are offering limited services to entice clients who otherwise couldn’t afford them. Critics say it’s a cynical way to deal with the problem. Being your own lawyer is “like doing your own dental work or heart surgery,” says Judith McCormack, executive director of Downtown Legal Services, a law clinic for the poor, run by the University of Toronto’s law faculty. “It’s a desperate response.”

It’s no secret what lies at the root of that desperation. “Let’s face facts, the cost of lawyers has escalated dramatically,” says David Scott, an Ottawa lawyer and chair of Pro Bono Law Ontario. A civil trial of two days costs $25,220 in lawyers’ fees, according to Canadian Lawyer’s 2008 survey. That works out to almost half the annual median family income in Canada, and represents a rise of 21 per cent in just three years. An uncontested divorce now typically costs $1,620, up a staggering 72 per cent in three years. Hourly rates are soaring, too. In 2005, lawyers called to the bar that year charged $130 an hour, on average. Last year, it was $220.

Lawyers say this escalation simply reflects the realities of supply and demand: more people are resolving disputes in the courts, and cases are increasingly complex, so they’re charging more for their time and expertise. “The market dictates lawyers’ fees,” says Winnipeg lawyer Guy Joubert, president of the Canadian Bar Association. “I don’t think access to justice is in crisis. It’s in a constant state of movement. The system is never perfect.” If there is a problem, the government should funnel more money into legal aid programs, Joubert says.

But that attitude is at odds with mounting outrage over the price of justice, as even voices within the legal community are starting to demand change. Many people “find themselves unable, mainly for financial reasons, to access the Canadian justice system,” Beverley McLachlin, the chief justice of Canada, said in a recent speech. “Hard hit are average middle-class Canadians.” The rich can get a lawyer, and the very poor (in Ontario, typically those who make $15,000 a year or less) can get legal aid. But the vast group in-between are stuck. David Scott feels the law society (the lawyers’ self-regulating body) should study the phenomenon to see if regulatory initiatives could improve access. “The middle class cannot afford this,” he says.

Despite the stereotype, self-represented litigants aren’t just Law & Order fans with a briefcase. Today, they come from all walks of life. But as Augustine can attest, our courts simply weren’t designed to accommodate them. “We have an adversarial system of justice. It is based on having two represented litigants presenting their case to the judge,” says Alice Woolley, an assistant professor with the University of Calgary’s faculty of law. “If one is unrepresented, how can the judge decide that case fairly, and with justice?” Lawyerless litigants bog down the courts, adding expense, confusion, and delay. “It reduces [the trial] to the lowest common denominator,” says Ontario Chief Justice Warren Winkler.

Not to mention the life-changing impact it could have for an inexperienced litigant, who might end up with a criminal record or lose custody of their kids, simply because they lack the experience and understanding to properly present the case. Even the term “self-representation” is controversial among critics, who underline that litigants without a lawyer have no representation at all. They worry that, instead of being a solution to the access to justice crisis, encouraging the trend only aggravates the problem—and it’s the legal profession itself that’s driving it.

At the Superior Court of Justice in Toronto, clerks are increasingly sending the unrepresented to Law Help Ontario, a two-year pilot project launched in late 2007 to help people represent themselves in court. People can get help filling out documents and free legal advice from volunteer lawyers, who sometimes appear in court on a litigant’s behalf. In the first nine months of last year, the centre helped about 2,500 people. The province is about to embark on its first-ever civil legal needs assessment, says Lynn Burns, executive director of Pro Bono Law Ontario, which runs the centre. “Starting a centre like this, you realize how many people were falling through the cracks,” she says.