NEWS | Access to justice: New models for legal services
Written by Marcus M Sixta, BSW, JD
Family Lawyer, Accredited Mediator, Collaborative Divorce Lawyer
To address the crisis in Legal Aid, more pro bono is only part of the solution. Lawyers need to start offering different types of legal services for self represented litigants.
Legal representation is beyond the reach of many Canadians, especially in the family law courts. In some Canadian jurisdictions, 60 - 70% of all family law cases have at least one-self represented party who goes to court without the assistance of a lawyer1. The stakes are high as losing in family court can mean less access with children, a reduction in support payments, forced sale of the family home or even the state taking guardianship of a child. Better funding for Legal Aid programs is part of the solution, and more pro bono legal work could help2, but the only way to truly address this issue is to give people less expensive options for how legal services are delivered. Unbundled legal service and legal coaching are new business models for legal services that improve access to justice because they cost less and rate highly for client satisfaction.
Fewer and fewer people now qualify for Legal Aid. This is the result of decades of underfunding and government cuts. As a result, many people are forced to represent themselves. However, new evidence suggests that half of all people who represent themselves earn over $70,000 per year3. This is way above the threshold for Legal Aid, which is typically an income below $19,000. Therefore, many people who represent themselves in court would never qualify for Legal Aid, even with a huge cash injection into the Legal Aid system as they earn too much.
What many lawyers see in practice is that the people who retain lawyers are those who have a lot of money or those who are living below the poverty line. With the typical two-day trial costing $30,0004, it is the middle-class litigant who is stuck without the option of retaining lawyer; they can’t afford a lawyer to represent them and they can’t qualify for Legal Aid.
This has created major problems in courthouses across the country already under pressure due to the slow progress in filling judicial vacancies5. Many people representing themselves lack basic knowledge of the processes, forms and legal precedents needed to advance a claim. This can create wasted court time and resources. Judges often adjourn cases due to incorrectly filed materials, incomplete disclosure of documents or to give unprepared people the chance to get a lawyer. This increases the number of court appearances per file and clogs up the justice system, creating longer delays for everyone waiting to see a judge.
Also, a person who represents themselves in court against a lawyer is fighting an uphill battle and the odds are stacked against them. It takes a lawyer years of training and practice to successfully navigate the legal bureaucracy and understand how prior legal precedents impact the outcome of a case, a nearly impossible task for someone without legal training, fighting their case while working a full time job. This creates a sense of unfairness, especially when one party can afford to retain a lawyer while the other cannot. As a result, confidence in the justice system is diminished.
However, there is a way of getting self represented litigants legal help that specifically meets their needs in a way that fits their budgets. This is what unbundled legal services and legal coaching can do. These untraditional legal business models are all about customizing legal services to fit a client’s legal and financial needs. Rather than paying a lawyer an expensive retainer to do all of the legal work, all of the aspects of a legal file can be broken down, or unbundled, and delivered individually. For example, a lawyer can be retained to give ongoing legal advice, provide legal research and edit court documents, all the while working out of sight in the background while the client goes to court on their own. In an unbundled legal services model, a lawyer can also be retained to draft one document, such as an affidavit or statement of claim, which the client then presents in their own case. A lawyer can also be retained to provide coaching on courtroom skills like cross-examination, or how to best present a case in mediation. When services are unbundled, a lawyer can also be retained to go to court on one application, or attend one day in mediation.
Moreover, when legal services are unbundled, clients can pay for what they need when they need it. We have worked with self represented litigants who are high income earners but choose to represent themselves in court. They have used us to assist with preparing their court documents and providing coaching in the background if and when they need it. We have also worked with people who don’t qualify for Legal Aid but also do not have enough money to hire a lawyer to go to court for them, and even though they are representing themselves in court, they are more prepared, better organized and have the correct documents.
New research on unbundled legal services indicates that people are extremely satisfied with this type of legal assistance. The Alberta Limited Legal Services Project6 found that 90% of participating clients were very satisfied with the unbundled legal services they received. Also, 85% said that the amount that they were charged by a lawyer providing unbundled legal services was reasonable, and 86% said that unbundled legal services were cheaper than traditional retainers. Moreover, 90% of clients who received unbundled legal services said that getting help from a lawyer on an unbundled basis was better than having no legal assistance at all.
Mandating lawyers to perform a set number of pro bono hours could help people gain access to a lawyer, but there are many potential pitfalls, including lawyers with no training in family law trying to assist on a family law file (family law is the area with the most self represented parties). Increased Legal Aid funding is definitely needed, but there will still be many people who make too much money to qualify for Legal Aid. New ways of delivering legal services, like unbundled legal services and legal coaching, also need to be offered by more firms in order to give people more options for legal services that meet their needs and budgets. Access to justice is improved when there are more ways of getting legal assistance.
Read the story here - The Lawyers Daily
1. https://www.cba.org/Publications-Resources/CBA-Practice-Link/solo/2016/Tips-for-dealing 50% of family law cases in Alberta according to the CBA. http://www.justice.gc.ca/eng/rp-pr/fl-lf/divorce/jf-pf/srl-pnr.html and up to 74% according to the Department of Justice.
4. http://www.canadianlawyermag.com/5610/The-Going-Rate.html --> Canadian Lawyer Magazine national survey found this to be the average cost Canada wide.