Self-Representation as an Erosion of Judicial System

Self-Representation as an Erosion of Judicial System

Introduction

The increase in self-representation among family litigants creates challenges for the justice system as well as for lawyers and their clients. It is clear that a significant amount of self-representation will be a permanent feature of family justice in Canada; lawyers, judges and the justice system will have to deal more effectively with family litigants without lawyers. There will, however, also continue to be a critically important role for good family lawyers, and the rise of interest in self-representation is actually creating some new opportunities for providers of legal services (Lillie 2012).

While inability to afford a lawyer and ineligibility for legal aid are the most significant explanatory factors for lack of representation, for many middle-income individuals, there is not an absolute inability to pay for legal representation. Rather the decision not to retain a lawyer is based on their assessment that, given their income and asset level, the value of having a lawyer does not justify the cost. Changes in popular culture and television shows like Judge Judy are leading some who could afford a lawyer to choose to represent themselves. For some, the decision to self-represent reflects a confidence in their own knowledge and ability to navigate the system; for others it's a distrust of lawyers. Some people decide that if the other party does not have a lawyer, they do not need one either. There are also some angry family litigants who want to directly confront their former partner, and whose decision not to have a lawyer may reflect a personality disorder.

The general perception of lawyers and judges is that litigants generally have better outcomes if they have a lawyer. Litigants with lawyers generally agree. However, a significant portion of litigants without lawyers do not expect lack of representation to have an effect on the outcome of their case - some even expect to have a better outcome. In particular, a majority of unrepresented men do not expect a worse outcome than if they had a lawyer - in fact, almost 10 per cent of self-represented men thought having a lawyer would result in a worse outcome. Among men with lawyers, however, the majority believed having a lawyer would result in a better outcome than not having one.

By way of contrast, both represented and unrepresented women perceived a similar value in having a lawyer ...