Vol. 81, No. 9, September
Why don't they hire lawyers?
If it isn't only a problem of access
to justice, why are more litigants choosing to represent themselves
instead of hiring a lawyer?
by Diane S.
The headline in the Vancouver Sun was catchy. "Lawyers
could go the way of the
dodo, magazine suggests" was splashed right there on page A5 of the
July 7, 2008, edition.
The story reported on an article printed in
National, the official magazine of the
Canadian Bar Association. The story focused on family courts throughout
Canada, and stated that
in Ontario the rate of self-represented litigants in family law cases is
60 percent, bringing with it the crowded dockets and court congestion
Wisconsin lawyers. The National article continued:
"The system is in crisis - and no one is entirely sure what
to do about it. Because
it isn't just a problem of access to justice, of litigants unable to pay
fees, although that is a major issue. It's also because a lot of people
marriage breakdown simply don't want to hire a lawyer at all."
In Wisconsin, Judge Mary M. Kuhnmuench, the presiding judge in
family court, reports that in 2006, 49 percent of divorce cases in the
county involved no
lawyers, and 83 percent of divorce cases had at least one
self-represented party. In a
whopping 96 percent of paternity cases, neither parent had a lawyer, and
in another 3
percent of paternity cases, only one party was represented. That means
that both parents
had lawyers in only 1 percent of paternity cases. Just as in Canada, the
just one of access to justice in Wisconsin. Beyond affordability, what
is the problem?
The National identified many possible reasons for high
numbers of self-represented litigants. First, people feel confident with
their ability to use
Internet tools and government Web sites to find the information they
need to address their
legal issues. Also, some self-represented parties may disagree with the
advice they have
received from lawyers, have a vengeance motive, want to drive up their
or partner's legal fees, or want to cross examine the other party
article argues that, generally, people simply are no longer in awe of
institutions and do
not feel a need for legal expertise.
The now-extinct dodo is not the only bird to be evoked by the
journalists. National editor Jordan Furlong, in commenting on the
family law story, said, "I'm
coming to think that family law is the canary in the coal mine. Every
day, more things that
used to be the exclusive bailiwick of lawyers are automated,
down-marketed and commoditized
by non-lawyers. You already know this if your practice involves
like wills and real estate. But the pro se trend in family court
shows that litigators
aren't immune either
Furlong identified the two unspoken reasons lawyers aren't hired
as, first, the
"unacknowledged and disproportionately high cost of hiring a
lawyer" and second, the
fact that, however slow and cumbersome the process, the courts still
function despite the
high volume of self-represented individuals.
It is clear that the growth in the number of pro
se litigants is partly attributable to the many accommodations
made by the courts for them. The availability of
self-help clinics, mandatory legal forms found online, and easy Internet
research are among
the factors contributing to the increase in the number of
Those accommodations have combined to create the
"commoditization" of legal services
referenced by Furlong. This is not a criticism of these programs. These
programs do, however, pose
a challenge to all Wisconsin lawyers.
We lawyers must find a way to demonstrate that we provide
more than any
"commoditized" package can. Lawyers can start with the idea
that increasing the availability of
civil legal services to the poor will help us demonstrate the value of
being represented by
a lawyer. Unless legal services and lawyers are available to all people,
become more and more irrelevant. By expanding the availability of our
services will become more valued. Professional self interest is not the
only reason to
support the many projects the State Bar developed in response to the
"Bridging the Gap"
study, but it is one of them.