Is price of justice too high?
Monday, March 20
- Organization: The Daily Gleaner - New Brunswick
As more and more NBers represent themselves in court because they can't afford a lawyer, Moncton MLA says it's time to revamp legal system
The costs of lawyers, expert witnesses, drawn-out court battles and the limitations of legal-aid services are all forcing many New Brunswickers into the risky situation of representing themselves.
Donald Poirier, a family law professor at l'Université de Moncton, sees first-hand how these costs are alienating citizens from the court system. Rarely a week goes by where a person does not approach him for legal help but one special case appeared recently that prompted Poirier and his team of law students to take on a client otherwise abandoned by the traditional legal system.
"She had gone to 62 lawyers in the City of Moncton and she couldn't find one and the civil legal aid wouldn't help her," Poirier said. "Someone sent her to me. We decided to take the case on, but we cannot do that every time."
His client is struggling through a divorce and was denied access to legal aid because the family had property assets but no lawyer would take the file because of the debts owed on the land.
Poirier's promise to help isn't a panacea; he and his class cannot actually step inside the courtroom for her, but they are helping put together the separation and divorce papers. In many cases, the law professor said it isn't that New Brunswickers want to don the robes of justice themselves and take on the system but the legal community has turned its back on them with the escalating fees of lawyers and court services.
"Maybe the whole system has to be changed," he said. "Hiring a lawyer nowadays is really quite costly. You can get broke in no time."
Moncton North Liberal MLA Michael Murphy has practised law in Moncton for more than two decades and he is shocked by the growing number of self-represented litigants.
"Twenty three years ago you might see them once a year when you were down in court; now you see them every single day," Murphy said referring to people showing up to defend themselves.
As courts rely on more expert testimony, lawyers are required to bring in more witnesses, adding thousands of dollars to a client's tab.
Lawyers have many different ways of charging clients; some go on an hourly basis, while others charge a percentage of any awards. A first-year associate in Moncton may charge $80 per hour, while an experienced or well-known lawyer in the city could charge upwards of $300 per hour. Other lawyers may take a percentage of any court-ordered awards arising out of the case. For instance, if a person won a case for $100,000 and the lawyer encountered $10,000 in fees, such as experts, they could receive up to 25 per cent of the remaining $90,000.
René Basque, a Moncton lawyer and vice-president of the Canadian Bar Association's New Brunswick branch, said it is too simple to blame the fees of lawyers. Basque said lawyers are professionals and should be remunerated fairly for their expertise.
What bothers Basque the most about ordinary folks trying to mount their own legal defence is the impact on justice.
"If they forget something, they didn't bring a piece of evidence, that could either mean they lose their case or cause a delay," he said.
When Basque is in the courtroom facing a self-represented litigant, he undoubtedly helps his adversary in explaining the proceedings or the judge, who is supposed to be a neutral arbiter, is forced to help guide the person through the complicated labyrinth of the legal system. That advice from the bench concerns Basque as well because it could call into question the judge's objectivity.
"The court must be seen to be impartial for both parties," he said.
Justice Minister Bruce Fitch said he won't speculate on the root causes of this growing problem; instead, he wants to bring all sides together to find a solution.
"Before we start changing things, we need to understand the issues and then to see if we can resolve them," Fitch said.
The province isn't just sitting idly by, Fitch said. The recently appointed justice minister said the department is spending more money in legal aid and is offering more mediation services.
The Canadian Judicial Council, a national organization representing judges, highlighted this growing problem in its 2004-2005 annual report.
"The fact that more and more litigants are choosing to represent themselves in court means that judges and courts face new challenges in the fair, timely and efficient delivery of justice," the report said. "Even the simplest of court procedures can be overwhelming for the non-specialist. Self-represented litigants are often unaware of their rights and the consequences of legal decisions."
The council's administration of justice committee is working on a statement of principles to guide judges in dealing with self-represented litigants and is also considering a list of scripts and protocols to help those on the bench assist people representing themselves.
After 23 years of working inside the court system, the Moncton North Liberal MLA is calling for a massive overhaul. Murphy would like to see the ceiling for small claims court cases rise to $50,000 from $6,000, coupled with a revamping of the rules of court, making the arcane language more accessible to non-legal practitioners. The idea, Murphy said, is cases below $50,000 can be tied up in court so long that it hardly makes it worthwhile to hire a lawyer, so if people could better understand the system they could fight a more fair battle and keep their money.
"When you have cases above $50,000 then, because the money involved is so dramatically relevant, you want to have tighter controls on the rules of litigants. That is when you need to have these restrictions in place," Murphy said.
"Right now the same procedure and evidential rules apply for a person with a claim going forward that costs $6,001 as would apply for a person who has a claim of $6 million."
Murphy, who has a master's degree in law specializing in alternative dispute resolutions, said the legal system should also be retooled to include more mandatory mediation or arbitration, further efforts to stay out the court. And for those lawyers who try and use the courts as a stalling or strategic tactic, judges should be able to bill them for the wasted time.
As well, the Liberal MLA said lawyers should be required to carry a minimum amount of pro bono work - legal services done for free - each year, so those who can't afford high-priced advice can have access to justice.
Murphy said he isn't advocating a judicial system without lawyers instead a reinvigorated approach that makes the courts more accessible to the average person.
"You've got to open the gates to the administration of justice in the province, otherwise it is just going to get worse and worse and these unrepresented litigants, many feel they haven't had their day in court," he said.
Poirier said portions of Murphy's ideas have been successfully implemented in other countries or provinces. For instance, England raised the ceiling for small claims cases, although not to $50,000, and Ontario requires a set amount of mediation in certain cases.
"Maybe our system needs reform. In England they did the reform four years ago and we are not there yet," Poirier said. "We are still holding onto things that have not been changed."
The costs of lawyers, expert witnesses, drawn-out court battles and the limitations of legal-aid services are all forcing many New Brunswickers into the risky situation of representing themselves.
Donald Poirier, a family law professor at l'Université de Moncton, sees first-hand how these costs are alienating citizens from the court system. Rarely a week goes by where a person does not approach him for legal help but one special case appeared recently that prompted Poirier and his team of law students to take on a client otherwise abandoned by the traditional legal system.
"She had gone to 62 lawyers in the City of Moncton and she couldn't find one and the civil legal aid wouldn't help her," Poirier said. "Someone sent her to me. We decided to take the case on, but we cannot do that every time."
His client is struggling through a divorce and was denied access to legal aid because the family had property assets but no lawyer would take the file because of the debts owed on the land.
Poirier's promise to help isn't a panacea; he and his class cannot actually step inside the courtroom for her, but they are helping put together the separation and divorce papers. In many cases, the law professor said it isn't that New Brunswickers want to don the robes of justice themselves and take on the system but the legal community has turned its back on them with the escalating fees of lawyers and court services.
"Maybe the whole system has to be changed," he said. "Hiring a lawyer nowadays is really quite costly. You can get broke in no time."
Moncton North Liberal MLA Michael Murphy has practised law in Moncton for more than two decades and he is shocked by the growing number of self-represented litigants.
"Twenty three years ago you might see them once a year when you were down in court; now you see them every single day," Murphy said referring to people showing up to defend themselves.
As courts rely on more expert testimony, lawyers are required to bring in more witnesses, adding thousands of dollars to a client's tab.
Lawyers have many different ways of charging clients; some go on an hourly basis, while others charge a percentage of any awards. A first-year associate in Moncton may charge $80 per hour, while an experienced or well-known lawyer in the city could charge upwards of $300 per hour. Other lawyers may take a percentage of any court-ordered awards arising out of the case. For instance, if a person won a case for $100,000 and the lawyer encountered $10,000 in fees, such as experts, they could receive up to 25 per cent of the remaining $90,000.
René Basque, a Moncton lawyer and vice-president of the Canadian Bar Association's New Brunswick branch, said it is too simple to blame the fees of lawyers. Basque said lawyers are professionals and should be remunerated fairly for their expertise.
What bothers Basque the most about ordinary folks trying to mount their own legal defence is the impact on justice.
"If they forget something, they didn't bring a piece of evidence, that could either mean they lose their case or cause a delay," he said.
When Basque is in the courtroom facing a self-represented litigant, he undoubtedly helps his adversary in explaining the proceedings or the judge, who is supposed to be a neutral arbiter, is forced to help guide the person through the complicated labyrinth of the legal system. That advice from the bench concerns Basque as well because it could call into question the judge's objectivity.
"The court must be seen to be impartial for both parties," he said.
Justice Minister Bruce Fitch said he won't speculate on the root causes of this growing problem; instead, he wants to bring all sides together to find a solution.
"Before we start changing things, we need to understand the issues and then to see if we can resolve them," Fitch said.
The province isn't just sitting idly by, Fitch said. The recently appointed justice minister said the department is spending more money in legal aid and is offering more mediation services.
The Canadian Judicial Council, a national organization representing judges, highlighted this growing problem in its 2004-2005 annual report.
"The fact that more and more litigants are choosing to represent themselves in court means that judges and courts face new challenges in the fair, timely and efficient delivery of justice," the report said. "Even the simplest of court procedures can be overwhelming for the non-specialist. Self-represented litigants are often unaware of their rights and the consequences of legal decisions."
The council's administration of justice committee is working on a statement of principles to guide judges in dealing with self-represented litigants and is also considering a list of scripts and protocols to help those on the bench assist people representing themselves.
After 23 years of working inside the court system, the Moncton North Liberal MLA is calling for a massive overhaul. Murphy would like to see the ceiling for small claims court cases rise to $50,000 from $6,000, coupled with a revamping of the rules of court, making the arcane language more accessible to non-legal practitioners. The idea, Murphy said, is cases below $50,000 can be tied up in court so long that it hardly makes it worthwhile to hire a lawyer, so if people could better understand the system they could fight a more fair battle and keep their money.
"When you have cases above $50,000 then, because the money involved is so dramatically relevant, you want to have tighter controls on the rules of litigants. That is when you need to have these restrictions in place," Murphy said.
"Right now the same procedure and evidential rules apply for a person with a claim going forward that costs $6,001 as would apply for a person who has a claim of $6 million."
Murphy, who has a master's degree in law specializing in alternative dispute resolutions, said the legal system should also be retooled to include more mandatory mediation or arbitration, further efforts to stay out the court. And for those lawyers who try and use the courts as a stalling or strategic tactic, judges should be able to bill them for the wasted time.
As well, the Liberal MLA said lawyers should be required to carry a minimum amount of pro bono work - legal services done for free - each year, so those who can't afford high-priced advice can have access to justice.
Murphy said he isn't advocating a judicial system without lawyers instead a reinvigorated approach that makes the courts more accessible to the average person.
"You've got to open the gates to the administration of justice in the province, otherwise it is just going to get worse and worse and these unrepresented litigants, many feel they haven't had their day in court," he said.
Poirier said portions of Murphy's ideas have been successfully implemented in other countries or provinces. For instance, England raised the ceiling for small claims cases, although not to $50,000, and Ontario requires a set amount of mediation in certain cases.
"Maybe our system needs reform. In England they did the reform four years ago and we are not there yet," Poirier said. "We are still holding onto things that have not been changed."
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