Let’s talk about privilege – specifically, about the lack of privilege faced by tens of thousands across the province of Ontario who require affordable access to justice, but who are left alone to navigate the impenetrable maze that has become our present-day court system.
The Unprivileged Litigant is defined neither by race nor by gender. They can just as easily be male or female, “racialized” or “non-racialized” (using the morally questionable – and possibly discriminatory – terminology currently favoured by the Law Society).
If there is any singular situation that seems to mark off an unprivileged litigant, it is that they tend to be self-represented in court, facing off against a party that has the financial resources to access counsel. According to a 2013 paper released by the National Self-Represented Litigants Project (NSRLP), the majority of litigants in Ontario are self-represented at the time of filing. The NSRLP reported that, in two of the busier downtown Toronto courthouses, close to 75% of family court applicants were self-represented.
In the context of accessing justice, the more disturbing finding by the NSRLP was that a similar proportion of self-represented litigants – 75% – failed at trial when going up against a represented party. Let that number sink in: If you are a divorced parent going up alone against a represented spouse, the single biggest predictor of success or failure has nothing to do with the merits of your case, but rather whether a Member of the Bar locks horns in court with someone who is not.
However, the problems of the Unprivileged Litigant extend beyond the situations faced by self-represented litigants. Many represented litigants are not properly matched with lawyers suitable to their budget and the dynamics of their case. Those dynamics often entail a tactical consideration of financial attrition: Will the better resourced party employ expensive procedural tactics in order to exhaust the legal budget of the financially weaker party, denying them a chance to argue the substance of their legal arguments at trial, forcing them to abandon their case for reasons having nothing to do with either justice or fairness?
These are questions with which I struggle more often than I care to, primarily due to the fact that I am one of the comparatively few lawyers out there who focuses their practice exclusively on offering limited scope legal services to litigants on a tight budget.
While many litigants would benefit from accessing limited scope – otherwise known as unbundled – legal services, the lawyers who offer such services need to be especially sensitized to the difficulties of offering legal advice in conditions where the litigant requires continuity and consistency of legal strategy throughout the course of the litigation matter.
Yet the very nature of limited scope representation is that the retainer only covers an isolated segment of what is often a long, drawn out litigation process. Thereafter, the litigant is left to their own devices. They can either continue on as a self-represented party, or wait until their matter requires another round of limited scope legal services. In the meantime, however, they are faced with potentially catastrophic gaps in their representation, where they are locked into an expensive procedural course of action, exposed to the other side’s legal costs, with no clear exit strategy by which to extricate themselves or to consider alternative strategies by which to frame the merits of their legal position.
And here is where we get to the nub of the problem faced by the Unprivileged Litigant. The Rules of Civil Procedure – which evolved so as to standardize court procedure and to provide an even playing ground for all parties – have become a weaponized tool in the hands of a party who can afford the legal resources to keep the other party from effectively putting forward their case.
To many litigants – represented and unrepresented alike – the Rules are impenetrable, forbidding, and the source for much emotional and psychological stress. The Rules are also the means by which many lawyers are able to mask from their client – whether intentional or otherwise – what exactly they have done to move the file forward in a substantive fashion.
As a lawyer with a focus on case law research, I review countless litigation cases in their end stages, after the smoke of procedural battles and hurdles has been cleared so that the court can finally consider the evidence and the substantive legal arguments. But what many published decisions don’t capture – but which parties often experience on the battle lines – is the ongoing financial drain that often comes with procedural deadlock, where the parties get bogged down with issues as to how they are presenting their evidence; how they should serve it and file it; which court is the proper court; what should be pled and what should not be pled.
These procedural battles are not only a huge drain on the parties’ financial resources, but they also distract many lawyers from focusing on, properly articulating, and advancing the substance of their client’s legal arguments – what should properly be the “meat on the bone” that the client has presumably paid for.
Thus, the Unprivileged Litigant is often burdened by the tactical gaming of the Rules by the better resourced party – the go-to strategy for those lawyers who opt not to present their clients’ cases with “meat on the bone”, but who wish instead to raise procedural hurdles to obstruct the opposing party from doing so.
To be fair, the Rules of Professional Conduct govern and speak to this kind of conduct, mandating that lawyers should agree to waive procedural irregularities where those irregularities do not prejudice their client’s interests. The Rules of Professional Conduct also require that lawyers should endeavor to settle whenever reasonably possible.
Increasingly, courts have recognized that spiraling legal costs pose the greatest barrier to those who do not have sufficient resources to put forward their case. Parties are encouraged to put forward formal Section 49 Offers to Settle as early as possible in the dispute. In general, where an offer is as good as or better than the result achieved by the other party, and where that offer is left open for acceptance up until the date of a hearing, the offering party may have the opportunity to recoup a substantial portion of their legal fees, dating from the time at which the offer was made.
Section 49 is intended to nudge parties to reasonably settle with one another, or otherwise risk paying a substantial proportion of the other party’s legal fees. The cost rules, however, assume that both parties are represented, and are therefore subject to similar cost considerations and risks.
When one of the litigation parties is self-represented, however, a formal Offer to Settle provides less of an incentive to settle, since the other party need not fear the tolling of the other side’s legal fees. By definition, a self-represented party has limited resources to toll substantial legal fees. Thus, the represented party bears little risk in rejecting the reasonable offer of a self-represented party.
In actual fact, the knowledge that the other party is self-represented – and hence, has limited resources available to sustain a long, drawn out litigation contest – often becomes an indispensable part of a skilled litigation lawyer’s strategy, encouraging them to use the Rules of Civil Procedure to disorient the unrepresented party. to wear them down by throwing up a barrage of legal technicalities, and to cause them to drain whatever limited financial resources they have left, before they have had any reasonable opportunity to get their full legal position before the court.
More often than not, this tactic also works effectively against represented parties who clearly have limited resources to stay the course with one counsel of record. In such cases, a poorly resourced represented party must manage their limited legal resources very carefully, often dropping ineffective counsel mid-way through litigation, searching for a new lawyer of record who is willing to take on a complex file in which they had no initial part in shaping.
In short, the Unprivileged Litigant in such circumstances is faced with what I term a potentially catastrophic gap in representation. As a lawyer who offers limited scope legal representation in litigation matters, this is the circumstance I am most commonly presented with. Crucial filing deadlines have passed. The client often does not understand the legal strategy that they have been left with by their former counsel of record, while any new lawyer of record is left to puzzle over why one course of action was taken rather than another, to say nothing of the time and resources needed to orient oneself with a litigation matter that is well underway.
Now, consider: a poorly resourced litigant is more likely to jump from one lawyer to another – to break the crucial continuity in legal strategy – because they simply cannot afford to sit by idly as their lawyer tolls up their legal fees with no tangible forward momentum. A counsel of record, in turn, has a disincentive to stay on with a client who is starting to exhibit an inability to continue financing the chosen legal strategy, much less when faced with an opposing counsel who is intent on running up your client’s costs beyond their ability to pay your legal fees.
Now, imagine when a financially struggling litigant seeks to take their file elsewhere, to find a new counsel of record willing to take on a file that was previously designed and managed by someone else. At a point in time when the client has already had their legal budget significantly drained, they hope to find an alternative counsel of record who – in practice – will need to expend extra time and resources just to orient themselves to the new file.
To compound the difficulties of the situation, any counsel of record must consider that it is not easy to be taken off the record. A motion must be put before the court, and tangible reasons must be given for doing so. A lawyer in such circumstances must also consider the possible risk of damage to their professional reputation, since a client with a tight budget has very particular needs that a competent counsel of record may not reasonably be able to meet. Being taken off the record – in the midst of complex ongoing legal proceedings – always bears with it the risk of bad blood between lawyer and client. A complaint may be filed with the Law Society, necessitating a detailed response from the lawyer, causing a further drain on the resources of the lawyer’s practice.
I say all this because I appreciate the mutual stresses, and often conflicting interests, faced by full retainer lawyers and Unprivileged Litigants in such circumstances. Put simply, there are no easy solutions and fixes here.
The major problem lies in the fact that the system and the rules are not currently set up to manage the consequences of what is becoming – and in fact, has become – the norm situation in litigation cases across Ontario.
Increasingly, only a privileged few can afford full continuity of counsel up to the date of trial. When reading a published decision in a case law database, I am given no insight into the history of the carriage of each party’s file. For all I know, the lawyer of record at the time of trial was just the last in a long chain of lawyers who had “custody” of the file.
If a judge comments on an argument that was insufficiently pled, or about evidence that wasn’t sufficiently supported, the problem might very well be that the lawyer with carriage of the file at trial was not the lawyer who had drafted those pleadings or who was involved in compiling the affidavit exhibits. By the time the latest lawyer has taken full carriage of the client’s case, crucial filing deadlines may have already passed; the latest lawyer on the case thus inherits a file designed by someone else, but who is no longer in the picture, leaving the lawyer to decipher an initial legal strategy that the client doesn’t quite understand and that the prior lawyer never properly explained to them.
The average Unprivileged Litigant has some experience with the situation described above, but usually does not have the words – or any appropriate forum – to articulate exactly how their case went off the rails. From the lawyer’s perspective, there is the professional pressure to maintain the fiction and the appearance that they are competent enough to handle this difficult situation. But the sad truth is that few lawyers are.
Under those circumstances, the most competent course of action a lawyer could take is to decline to take full carriage of a complex litigation file designed and abandoned by prior counsel, with a client whose resources are no longer sufficient to maintain the chosen legal strategy.
What, then, can the Unprivileged Litigant do? Left to their own resources to carry on without legal assistance, the overwhelming odds are that they will lose. They will be hard pressed to find affordable counsel to take full carriage of their file, and those lawyers that do go on the record will either feel pressure to cut corners or to inevitably go off the record once they find themselves in a procedural deadlock with an opposing party that knows they can exhaust the Unprivileged Litigant’s funds before their case ever gets to trial.
If you are representing an Unprivileged Litigant in the midst of litigation commenced by a prior lawyer, you can always try to employ a Section 49 Offer to Settle as a cudgel for the other side to consider a reasonable offer or else incur the risks of paying your client’s legal fees. But for that strategy to work, your client in the meantime needs the financial endurance to stay in the game all the way to the hearing, while in the meantime tolling up enough legal fees to incentivize the other side to settle.
At some point, it becomes clear that the Unprivileged Litigant cannot proceed to trial under these conditions. A responsible lawyer will realize this and look for an exit strategy that best protects their client’s interests. But by then, the bargaining power for negotiating a mutually acceptable reasonable settlement has shifted to the side who is better financed to hold out.
In the context of family law, a poorly resourced claimant in need of support – with interlocking issues over custody and division of property – will often be tactically at the mercy of a self-employed payor with the financial resources to resist the claimant’s requested relief.
On the other side, a poorly resourced payor, in the midst of a highly contested custody/access battle, may be forced to abandon their access rights if the in-laws, for example, are financing the other party’s legal strategy to frustrate and complicate what should otherwise be a smoothly functioning visitation regime.
What I am describing are situations that have little bearing on the respective merits of each party’s legal position. In practice, the distorting effects of affordable legal access are what often determine the results of a case. As noted above, it is not just the unrepresented party who is exposed to such effects. A poorly resourced represented party is just as exposed to these distorting effects, albeit in more subtle ways that are seldom apparent to judges who preside over case management conferences and trials.
In the end, it all comes down to the issue of costs. In a system where costs follow the result – and where the poorly resourced Unprivileged Litigant is more favoured to lose, whatever the merits of their case – the courts and the Rules need to give much more weight to a consideration of the conduct of litigation in awarding costs.
To an extent, this is where the courts – and, in a limited manner, the Rules – are trending, albeit at a glacial pace. Though the Rules of Professional Conduct require lawyers on both sides to proactively encourage reasonable settlements, while also advising against “sharp lawyering,” violations must be egregious enough to get past any defence that the alleged offending lawyer was just zealously advocating their client’s interests, an adversarial position that is likewise encouraged by those very same Rules.
In any case, a violation of the Rules of Professional Conduct may translate into a complaint with the Law Society, yet may have no bearing on the crucial assessment of a costs award. In short, in practice, the technical breach of the Rules of Professional Conduct have no teeth if they have no direct bearing on the judge’s discretion to award costs against the party who breaches the Rules.
To date, the Courts of Justice Act and the Family Law Rules provide some basis for sanctioning bad faith conduct and sharp lawyering by the other side. In the most egregious cases, a lawyer can even be held personally liable to pay costs.
In the family law context, Rule 24 of the Family Law Rules provides some basis for the Unprivileged Litigant to manage the cost consequences of a party that acts unreasonably or in bad faith. Though there remains a presumption that costs shall follow the result of a matter, Rule 24 provides the judicial basis for a judge to nevertheless award costs against a successful party where it can be shown that the party had taken actions to unreasonably draw out litigation and to toll unnecessary costs.
But if a judge is to exercise discretion in that manner, they must be given a proper documentary and evidentiary basis for doing so. In practice, the Unprivileged Litigant often lacks the resources, foresight, and experience to properly document and capture the evidence of sharp litigation and bad faith conduct waged against them by a Member of the Bar. More often than not, assuming they can recognize an abuse of process, they are hard pressed to articulate what exactly has occurred, and, most crucially, how to prove it.
Moreover, a well resourced party can “game” these cost rules in a way that makes the unrepresented or poorly resourced party appear as the one guilty of incurring the unnecessary costs.
The problem lies in the fundamental dilemma that unrepresented parties generally come into the litigation system with a poor understanding of the Rules of Professional Conduct and the cost consequences of bad faith lawyering. As a consequence, unrepresented – or partially represented – parties remain perpetually vulnerable to the abuse and manipulation of opposing counsel.
The case management system should serve as one potentially effective avenue to address, and to guard against, such abuses. From the outset of litigation, unrepresented parties – and parties with limited scope counsel – should be provided by court administrators with materials that instruct them how to monitor and to document the ongoing conduct of litigation by the other side.
It is crucial that, as early as practicable, unsophisticated parties be given materials that alert and sensitize them to the applicable rules that encourage settlement and that warn against sharp lawyering. When lawyers are given notice by an unsophisticated party that the party has the foresight and ability to document the conduct of litigation, it should provide a means for unsophisticated parties to get control over their cases, to address the imbalances of power that come from pitting an experienced Member of the Bar against an inexperienced member of the public.
As a matter of course, communications subject to a claim for settlement privilege should be made admissible for the limited purposes of determining cost consequences arising out of questionable litigation conduct. Since the Supreme Court of Canada decision of Sable Offshore Energy Inc. v. Ameron International Corp., there is now further judicial support for the waiving of such privilege, particularly when the public interest in waiving it can be shown to outweigh the public interest in maintaining it.
Special court administrators should be trained and on hand to provide instruction to those who have concerns about sharp lawyering. Many unsophisticated parties remain unaware that they can make reasonable written requests to an opposing party to adjourn, to discuss, to settle, or to pursue alternative, less expensive courses of action at any stage.
If the other side repeatedly ignores reasonable requests to pursue less expensive courses of action, that conduct needs to be captured and documented for a later examination of the conduct of litigation.
At the end of the day, there needs to be an improved system in place for the courts to regain control over their own processes. Ironically, it was that very need that necessitated the creation of the Rules of Civil Procedure.
But in an age when Members of the Bar are increasingly engaged in litigation with unrepresented parties, the system needs to correct for the inevitable balance of power that comes when one party has better access to legal information than the other.
At present, too many lawyers, judges, and court administrators remain insufficiently schooled in the differences between providing legal information and providing legal advice. Legal information should be freely, liberally, and proactively provided to unsophisticated parties. Litigation kits should be made available and offered to anyone as a matter of course from the outset of litigation, detailing the kind of proper conduct to be expected of each party, while emphasizing the cost consequences of bad faith dealing and unreasonable conduct. Most crucially, litigants must be provided information by the courts on how they can document the ongoing conduct of litigation, with phone numbers to call for further information and guidance.
The Canadian Judicial Council has recently addressed these matters. In terms of recent judicial precedent, there now exist cases that have been successfully appealed on the basis of judges providing insufficient or faulty procedural information to unrepresented parties.
With all that said, the courts must nevertheless maintain a position of neutrality with respect to each party, irrespective as to their level of financial privilege and access to financial resources.
The overall goal should be to set in place a system which effectively awards the reasonable party and that deters unreasonable conduct. With that goal in mind, Offers to Settle should be looked at as encompassing more than the material terms of the dispute; they should also encompass offers to streamline the costs of litigation, to suggest alternative courses of action most reasonably intended to avoid spiraling costs.
In a more balanced and fair system, costs should follow the conduct of litigation as much as the result. And since – as demonstrated above – the conduct of litigation very often determines the result, it is all the more important that court administrators are put in place to notify and to advise unsophisticated parties as to how they can identify and contemporaneously document instances of sharp lawyering from the other side.
The Law Society has a public interest duty to publish a handbook that sets out the most common scenarios that point to sharp lawyering and bad faith conduct. Such a handbook should be circulated to all court actors, whether they are Members of the Bar or unrepresented members of the public.
In terms of case management, the presiding judge should review litigation conduct matters and write up a report for later examination, with special alertness to the potential abuses faced by unsophisticated parties.
Judges, in turn, should be alert to instances when represented parties show evidence of substantial gaps in the continuity of their representation, considering the possibility that poorly supported arguments may be more a consequence of such gaps in representation rather than a fundamental inability to prove the merits of one’s case.
If such courtesies are extended to Unprivileged Litigants in these circumstances, the more privileged parties may be disincentivized to take advantage of an unsophisticated party’s situation, so as to avoid the added expense of adjournments, extensions, and appeals intended to give the unsophisticated party an equitable opportunity to present their case cogently, free from the diversions and psychological pressure of procedural harassment.
In sum, judges need to be sensitized to the fact that when they are dealing with unrepresented parties – or parties with significant gaps in representation – those judges may have already lost control of their own processes, ceding them to the better resourced party. Overall, it is the judge’s duty to proactively inquire into and assess the history of the conduct of litigation before the court. It is the judge’s duty to instruct an unrepresented party to document and preserve the evidence of their dealings with the opposing party, so that the judge may make a cost determination in line with the evidence of such conduct.
At every stage, an unrepresented party must be instructed – and reminded – by the judge and court administrators of their right to communicate reasonable offers to settle, which should encompass not only the material issues of the dispute, but also the most reasonably expeditious means by which to resolve them.
If a claimant has financially tanked out in their ability to continue pursuing their claim – but has nonetheless demonstrated strong merits for their case – they should not be penalized for proffering an exit strategy seeking to end the claim, particularly where evidence exists that the opposing side had purposefully run up unnecessary costs precisely with the aim of “tanking” out the claimant before the matter goes to trial.
In short, the courts need to evolve protocols and rules by which to regain control over the judicial process, providing the Unprivileged Litigant with more flexible options in getting the affordable assistance they need to cogently present their case, while being provided the tools to defend against sharp lawyering and procedural abuse.
Finally, the Law Society absolutely needs to expand the options for poorly resourced litigants to seek affordable procedural assistance. In light of the dire situations discussed above, there cannot be any reasonably defensible justification for denying qualified paralegals the option of providing certain legal services to unrepresented parties in Superior Court.
Some of the more psychologically draining and stressful tasks faced by unrepresented parties pertains to the formalities of filing, serving, and document preparation. In many law firms, paralegals and legal assistants are the ones tasked with these duties, freeing up the lawyers to concentrate on the more substantive aspects of a case.
The Law Society currently allows paralegals to offer such assistance on Superior Court files, but only under the direct supervision of a lawyer. With respect to clients who need to parse their limited legal budget, it’s an unnecessary added layer of expense.
For instance, when a limited scope lawyer is retained to draft a factum argument, to source the supporting case law, and to reference the supporting evidence, they should not be bogged down and diverted with the formalities of noting up exhibits, preparing back pages and preparing the Book of Authorities.
A client should be able to take such work product and hand it off to an independently sourced and qualified paralegal with experience on preparing documents for serving and filing.
The Law Society ought to know – if it doesn’t already – that the formalities of filing and serving are often sources of post-traumatic stress and depression for self-represented parties engaged in litigation, particularly in family law disputes.
Since unrepresented parties are – by definition – the ones tasked with full carriage of their own cases, they need any viable option they can find to free up their time and energy to pursue the guts of their case. If an affordably sourced paralegal can free them from the stress of meeting procedural formalities, and with staying on top of filing deadlines, why in the world would the Law Society stand in the way of enabling its own paralegal licensees to provide the kinds of affordable procedural services for which they are eminently suited?
There is no reasonably justifiable answer. This current state of affairs cannot – and will not – continue.
In sum, the problems of the Unprivileged Litigant may be effectively addressed by giving them the flexible and affordable tools and information they need to conduct their case in a reasonably expeditious fashion. Case management guidance; conduct of litigation assessments; evolving cost rules; access to unbundled lawyer services and paralegal procedural support – these are just some of the means by which the Unprivileged Litigant can work toward leveling the playing field and to ensure far more equitable chances at court than currently exist.