Access to justice

Members of the middle class will likely find it difficult to afford a lawyer if they need one these days.

If you're very rich, or very poor (and therefore eligible for legal aid), you're fine — it's middle-income wage earners who are stuck. That's the opinion of such legal luminaries as Supreme Court Chief Justice Beverley McLachlin, retired justice John Gomery (who oversaw the sponsorship scandal inquiry) and former chief Justice of Ontario, Roy McMurtry — each has made public statements to this effect.

Philip Slayton, author of Lawyers Gone Bad, says, "The current system is broken and it is broken irreparably."

With some lawyers billing as much $600 and hour, (although it would more likely be $200 to $300 an hour for the average case), and the Ontario Ministry of the Attorney General reporting that the average percentage of unrepresented litigants in Ontario family courts between 1998 and 2003 was 46 per cent, the legal profession is starting to look at ways to make justice more accessible. Currently, there are discussions of different types of billing, such as flat fees for certain services or contingency fees (where a lawyer is paid a certain percentage of funds recovered), rather than billing by the hour.

Legal alternatives

Until this happens, though, there are ways for the middle-income consumer to have access to the legal system.

If you decide to hire a lawyer, University of Calgary professor Alice Woolley says it's imperative to get involved in the billing process. "You need to be vigilant in asking a lawyer what they're doing, how much a quick update costs, how often they'll bill you and how much detail they'll provide on an account. If there's a problem, raise it right away."

Woolley advises if you do receive a bill that's too high, complain to your lawyer right away. If that doesn't resolve the problem, contact the courts to have the bill "taxed" (where the charges are assessed to see if they're reasonable). Frequently, bills are reduced.

The Law Society of Manitoba has a bill dispute resolution process. Some law societies provide details of how to have a bill assessed on their websites.

As well, Woolley says, "Look at how often a lawyer returns your calls. It's not just about payment; it's about getting good value for money."

Avoiding court

Another way to deal with legal issues more cost effectively than going through the court system is through alternative dispute resolution processes such as mediation. Author Slayton says, "I would tell clients that they should stay out of the courts and settle it privately. You may have to swallow your pride a bit, but it's better."

Greg Goulin, incoming president of the Ontario Bar Association, says, "Lawyers are putting alternate dispute resolution clauses into wills. In civil cases it's mandatory. In criminal trials, there are often pre-trial conferences. There are cases where mediation is used in criminal law, but it's least frequently used there. It's not used in violent situations or sexual assault cases."

If you're representing yourself, as almost half of all litigants in some courts are, according to figures from Ontario's attorney general, Woolley says the courts are friendlier to people in this situation. "Small claims court has a high dollar amount on cases that can be dealt with. Officials will help you figure out how to make a statement of claim, etc."

As well, people can seek out duty counsel in criminal courts to help navigate their way through the system.

It's also possible to obtain legal advice without hiring a lawyer. The Law Society of Upper Canada provides a half-hour consultation with a lawyer for $6. In Alberta, you can get that same service for free.

Paul Schabas, with the Law Society of Upper Canada, says there are also plans to open self-help clinics with materials and lawyers available to supply people with advice. Consumers will either be able to manage the process themselves or figure out at what point they may need to employ a lawyer.

There are a number of resources on the internet to help people who decide to go to court on their own. The Supreme Court of Canada now has information on its website instructing those who wish to represent themselves in front of the court. The Canadian Legal Information Institute, also provides numerous resources in the form of statutes, regulations and court decisions. Pro Bono Law Ontario offers free legal advice.

"You have to realize you may not know as much as your lawyer, but you still have the ability to control what happens," Woolley says. "There are ways to be an intelligent and creative user of legal services. If you do that, you will get the service and you won't end up paying too much for it."