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the dis-accessed middle class of North America


Just yesterday, in our post on Family Court Civil Gideon, I noted that the American who is non-poor (but not rich) very often cannot realistically afford a lawyer, but is not helped by the Civil Gideon movement.   By coincidence, the Chief Justice of the Supreme Court of Canada, Beverley McLachlin, warned on Thursday that the middle class in her country is also often denied effective access to justice due to the high cost of retaining counsel.  See “Access to justice is critical for Canadians: chief justice,” National Post/ and “Top judge sounds alarm on trial delays,”  The Globe and Mail,  (March 9, 2007)

CanadaFlagG   The Chief Justice warned: “Access to justice is quite simply critical. Unfortunately, many Canadian men and women find themselves unable, mainly for financial reasons, to access the Canadian justice system. Some of them become their own lawyers, or try to.. . Hard hit are average middle-class Canadians.”

According to the National Post:

“A Canadian of average means may have to consider remortgaging their home, gambling their retirement savings or forsaking their child’s college fund to pursue justice, Beverley McLachlin told a crowd of about 150 in Toronto Thursday.”

. . . . “Those with some income and a few assets may be ineligible for legal aid and therefore without choices, said McLachlin. “Their options are grim: use up the family assets in litigation; become their own lawyers or give up. The result may be injustice.”

. . . “Injustice is, at times, compounded when people choosing to represent themselves are without the proper legal knowledge to do so. . . .”

The Chief Justice also pointed out that “Putting the facts and the law before a judge may be an insurmountable hurdle. The trial judge may try to assist, but this raises the possibility that the judge may be seen as helping or partial to that person. The proceedings adjourn or stretch out, adding to the public cost of running the court.”

ProfPointerThere is little doubt in my mind that neither the Canadian nor the American legislatures (or public) will remedy this problem by providing publicy-funded lawyers for any person who would be financially-distressed by hiring an attorney.  (Of course, doing so would also be poor public policy, in my opinion.)  The only practical and principled solution is to increase and improve programs that allow as many persons as possible to present their cases effectively without lawyers, while making courts — staff, judges, procedures, etc. –far more friendly to the self-represented. 

Note: in a prior post, we had this paragraph about Chief Justice McLachlin:

To no one’s surprise, Chief Justice Beverley McLachlin of the Canadian Supreme Court was voicing her concerns recently over the numbers of self-represented litigants throughout the court system. (see,, “Chief Justice warns of ‘epidemic’ of self-representation in courts,” Aug. 13, 2006;  cbcNews, “Self-representation creating chaos in courts:chief justice,” Aug. 12, 2006)  Perhaps the reporters covering Justice McLachlin missed other salient points, but it is disconcerting that the only solutions for the “epidemic” that are mentioned in the above articles are her suggestions that lawyers might lower their fees and that judicial vacancies be filled more quickly.

The news coverage of her speech on March 8th is also devoid of any call by the Chief Justice to incease self-help resources for litigants, judges and court staff.  I could not find the text of the speech online to see if the Chief Justice expanded on the topic.

1 Comment

  1. shlep: the Self-Help Law ExPress » Blog Archive » the Florida Bar and you the people

    March 19, 2007 @ 6:26 pm


    […] It’s no secret that I am at times suspicious of the motives of the organized bar — especially when it comes to new sources of competition from outside (or even inside) the profession, and to the growth of the self-help law movement.  See, e.g., our post “a guide or a guild: where does your bar group stand?” (Sept. 8, 2006).  So, I was not very impressed by the Florida Bar’s UPL chairman’s suggestion that those who need “to save money” can get help from Legal Aid.  As you know, only a small portion of the total population who cannot afford lawyers (see prior post) is poor enough to be eligible for Legal Aid; and, of course, only a relatively small percentage of the eligible actually get a lawyer from Legal Aid.  […]

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