Going to court without a lawyer? DIY law is on the rise
Self-representation saves money, but the larger cost is high, say justice-access advocates
When Farrah Jinha's 15-year marriage failed, she never imagined it would result in an eight-year legal battle, culminating in 2021 with an 18-day trial pitting her — alone — against her ex-husband's professional legal team.
But faced with a $200,000 retainer fee that needed to be paid to keep her lawyer, Jinha says she was forced to take over her divorce proceedings in B.C. Supreme Court.
"I was scared, for sure, but I was also very determined to get this done, because the sense of injustice was just too big," said the 53-year-old, who now lives in Toronto. "I gave up my career. I stayed at home and I raised my kids and my former husband was going to leave with everything. That just didn't seem right or fair."
In order to represent herself, Jinha ended up missing work in order to prepare chamber applications and evidence, and taught herself about the legal process by studying public legal education blogs and begging for help from experts like family law arbitrator and blogger John-Paul Boyd. After the trial, she even considered going to law school, and still may pursue paralegal training.
Jinha ultimately won her case — which involved hundreds of thousands of dollars — but the challenges she faced inspired her to launched a support group and podcast called SmartGirls' Guide to BC Family Law to help others navigate the system.
"Divorce is not for the poor or even for the middle class," said Jinha.
Jinha's experience is becoming more common in civil courts, according to Jennifer Leitch, executive director of the National Self-Represented Litigants Project (NSRLP) at the University of Windsor.
Leitch says the number of people who are self-represented has grown to the point where approximately 50 per cent of all civil cases in this country involve "self-rep." She and other legal advocates say it's the cost of legal services that's driving up do-it-yourself law.
Leitch said that a week-long trial can cost between $50,000 and $80,000.
"When we have large legal firms at the top charging $1,000 per hour, people can't afford that," said Leitch.
Crisis in family law
There is a lack of cohesive, current data across Canada on legal self-representation, which lawyers and judges say is difficult to track.
According to a 2013 study conducted by NSRLP founder Julie Macfarlane, the rate of self-representation was up to 80 per cent in some family courts. A follow-up report in 2021 revealed that of the self-represented litigants surveyed, close to 60 per cent were involved in a civil or family matter, earned less than $30,000 per year and couldn't find access to free legal advice.
Most reported feeling the justice system was "unfair," and many described a sense of "the odds being stacked against them."
Advocates say the rising number of lawyer-free litigants is problematic. The legal system is meant to be adversarial — with strong lawyers on each side — but the high rate of self-representation creates lopsided justice, pitting an untrained individual against a professional.
B.C. Court of Appeal Chief Justice Robert Bauman told CBC that he sees "too many" litigants representing themselves with too little training.
"It's in the family law area that we are facing the crisis," said Bauman, who chairs Access to Justice B.C., a cross-sector group working to improve court access.
In 2022, the number of self-represented litigants in provincial court appearances increased by seven per cent and involved 22 per cent of B.C.'s Court of Appeal cases, he said.
Bauman and Leitch say more data is needed on self-representation in Canada, but agree that people are driven to take over their own legal matters due to the cost.
Canadian lawyers are self-regulated by law societies, which do not cap fees.
Forgoing legal representation may save money, but experts warn it comes with a larger price.
Christopher McPherson, president of the B.C. Law Society, says self-represented litigants lead to extra court time, cause delays and put an extra onus on judges, all due to their lack of legal experience.
Leitch says many unrepresented litigants "don't know the procedures. They don't understand the law. They don't even really understand the language that gets spoken between lawyers and judges."
McPherson said "that leads to concerns about proper access to justice."
As a self-representing litigant, "you're dealing with very traumatic, stressful situations, and trying to navigate that on your own is very difficult."
But cheaper alternatives are scarce. Leitch advocates for more affordable paralegals — who charge approximately $75 to $250 per hour — more legal aid funding and for law firms to be required to do more pro bono (or free) legal work.
In 2008, Ontario began licensing paralegals, who offer less expensive legal guidance, at least for summary conviction and other civil matters, according to the Ontario Law Society. There's a push in other provinces to follow this example.
Litigants can also use a so-called McKenzie Friend, which is usually an unpaid support person who can help them organize, take notes and prepare for a trial. Established after a 1970 divorce case in England, this option is recognized in the U.K., Canada and other courts.
Other than that, you must be a lawyer to represent another person in court in Canada. So if you can't afford one, you fend for yourself.
Bauman says courts are pivoting to offer free legal training and try to streamline services to help litigants who can't hire lawyers.
"We have to make ourselves relevant as a dispute-resolution forum or we're going to go the way of the dodo," Bauman said.
Self-reps seen as 'waste of time'
In B.C. he says a non-profit, called Access Pro Bono, counsels litigants headed into B.C.s Court of Appeal, but it's challenging to prep laypeople for trials, as "the law is complicated. We can't make it too simple."
Critics say courtrooms need to evolve, shifting from an adversarial system set up for lawyers.
"We ought to be thinking about how we do cases in court when there are no lawyers in the room," Leitch said.
She also wants lawyers to "unbundle" legal services and let people pay for partial services — allowing them to do their own research, for example. As for judges, Leitch says they need to take a more active role, helping self-reps question witnesses and even present evidence.
But for now, litigants like Farrah Jinha are, for the most part, on their own.
During her divorce case, she had to deal with everything from paying for all fees and photocopying to fending off an unsubstantiated contempt of court accusation for allegedly violating an undefined court order, which was tossed out. She also fought to convince a judge that it was inappropriate for her son to be called to testify at trial.
"You get judges that are impatient. They see 'self-rep' and they're like, this is going to be a waste of time," she said.
In the end, Jinha says she won her case, but the process left deep fissures in her family.
"It's a very long, drawn-out, arduous process that I think has to be fixed."
- A previous version of this story said paralegals are equivalent to legal assistants. They are not. The story also said Ontario began licensing paralegals in 2019. In fact, Ontario started licensing them in 2008.Apr 21, 2023 7:21 AM ET