Lawyers worried about long-standing mistrust of the legal profession got some help from two academics last week.
A new study by Queen’s University Faculty of Law professor Nicholas Bala and University of Western Ontario social work professor Rachel Birnbaum showed the value of having lawyers in a family law case.
The pair surveyed 325 family lawyers about their experiences dealing with unrepresented litigants on the other side. Besides finding that the other side had no lawyer at all in a quarter of family law cases, the study noted concern about increased costs for the party that did have representation.
The added costs are due to a number of complications largely stemming from the fact that one party is less familiar with the justice system. As a result, the lawyer involved has to spend more time on documentation with another party who may have unrealistic expectations and whose actions may drag out the litigation.
Of course, people often go unrepresented simply because they can’t afford a lawyer. But it’s ironic that an effort to save money can actually end up costing another party more.
It’s interesting, too, that avoiding high-priced lawyers can result in a financial burden. That won’t surprise many in the profession, but it’s
good to have academic proof of that fact.
The study, then, is good evidence of why people need lawyers. Still, that only goes so far as it doesn’t answer the question of how to help ensure people can afford representation.
“Bar associations and governments are certainly aware of the problems created by lack of legal representation for family litigants and ultimately their children,” said Bala. “But present fiscal realities make these difficult issues to address.
There is no single or simple solution to these problems, but it is clear that the challenges posed by family litigants without lawyers need to be better understood and addressed.”
Without more money for legal aid, possible solutions include doing more to facilitate the unbundling of legal services and, more controversially, allowing paralegals to practise family law again.
At the same time, there’s some hope that new family law information sessions and making mediation more widely available may help to some degree.
Each of those actions, of course, would make only a small difference to the problem. But through their study, Bala and Birnbaum have highlighted the need to consider the issue of unrepresented litigants in family law more fully. In doing so, they’ve also shown people why they need lawyers.
— Glenn Kauth
