With more and more civil litigants choosing to self-represent in court, it is clear that all-or-nothing retainers are deterring ordinary people from seeking legal assistance — and for the sake of all stakeholders in the judicial system, lawyers need to find ways to adapt, Toronto civil litigator Patricia Virc writes in Lawyers Weekly.
As Virc, a lawyer with Steinberg Title Hope & Israel LLP, writes in the article, the affluent are also opting out of the public system by purchasing expensive private arbitration or mediation, which has negative implications for the development of jurisprudence. Privately arbitrated cases, she explains, are decided without the benefit of a public hearing and the judicial reasons that would otherwise follow.
As for the problems of self-representation, writes Virc, these extend beyond the litigants themselves.
“Self-represented litigants often do not know what to tell a judge, and file large volumes of irrelevant material. This consumes valuable judicial time and court resources, overburdening judges who are left to do the sifting that would normally be done by a party’s lawyer, and to do their own legal research,” she explains.
Although self-reps have an easier time accessing online court forms and legal databases, Virc says that these are an inadequate replacement for a law degree and years of experience.
“With only Google by their side, these litigants often struggle to appreciate not only fundamental concepts but also the legal nuances and distinguishing factual and legal features of their cases. Self-representation results in inefficiencies and creates costs and delays for the other party as well.
“Self-represented parties are often unable to properly assess the strengths and weaknesses of their positions, have unreasonable expectations and may be unaware of the penalties for taking untenable positions. This makes settlement negotiations unproductive,” adds Virc.
In addition, Virc writes, cases of public interest launched by self-represented litigants may be decided without the benefit of well-developed legal argument.
One flexible service option that may make legal services accessible again is the limited scope retainer, she suggests in the article.
“Value-based billings and block fees rather than time-based billings will bring more certainty and affordability and will appeal to clients who might otherwise have foregone some form of legal assistance.”
However, Virc explains, the offering of unbundled legal services and limited scope retainers will require lawyers to pay careful attention to professional liability hazards.
“Communications issues and unintentional expansion of retainers are big concerns. Accepting retainers for discrete tasks will require lawyers to be extra-attentive to the clarity of their retainer agreements and communications with clients. A standardized retainer agreement with clear and simple language setting out the scope of work is essential. Clarity as to when the retainer ends is essential as well.”
Unbundled legal services, she adds, also present an information-collection hazard — because legal advice must be tailored to the client’s circumstances, lawyers have to be sure to exercise care in their investigation and documentation of facts.
“The availability of unbundled legal services and fixed fee options needs to be made more widely available by lawyers and more well-known to clients. These models should be seen by lawyers as an opportunity to serve a niche market and worthy of the investment in knowledge, training, systems, staff, equipment and promotion for a new style of practice,” writes Virc.