Saturday, August 26, 2017

Justice Systems Comparisons #7: Common Law (US Etc) V. Civil (Italian) On Self-Represented Litigants

Posted by Chimera

One Of Many Self-Help Videos Now Springing Up Online

1. The Series Context

Several posts since my previous one drew attention to an estimated 200,000 or more poor Americans wrongly sitting in prison.

They are there because trial outcomes differ widely according to how much those charged can afford to pay or can handle their defense on their own, and there are pressures (political and economic) to keep the partly privatised prisons full to capacity.

Oh, those who have been slamming Italian justice forgot to tell you that?! 

Italian perps remain MUCH better off, but this post explains progress elsewhere now being made.

Here are my previous six posts. I use the Canadian system as the common law example. But as the posts explain, the US and UK systems are pretty close. 

Click here for post: Justice System Comparisons #1: Had Meredith’s Murder Taken Place In Canada 

Click here for post: Justice System Comparisons #2: Canada’s Tough Penalties For Slander, False Accusations, Perjury 

Click here for post: Justice System Comparisons #3: Bail, Extradition, and More Crimes In Canadian Law 

Click here for post: Justice System Comparisons #4: How Canada And Italy Shape Up Against The US 

Click here for post: Justice Systems Comparisons #5: How Appeals Differ in Italy and Common Law Countries 

Click here for post: Justice Systems Comparisons #6: Common Law (US Etc) V. Civil (Italian) On Double Jeopardy

2. Rights And Protections Of Self Represented Litigants

In 2006, the Canadian Judicial Counsel released their STATEMENT OF PRINCIPLES ON SELF REPRESENTED LITIGANTS AND ACCUSED PERSONS.  Here is a direct link to that article.

Among some of those well intentioned principles are:

(a) Self-represented persons should not be denied relief on the basis of a minor or easily rectified deficiency in their case.

(b) Judges should ensure that procedural and evidentiary rules are not used to unjustly hinder the legal interests of self-represented persons.

(c) Judges and court administrators should do whatever is possible to provide a fair and impartial process and prevent an unfair disadvantage to self-represented persons.

(d) Judges, the courts and other participants in the justice system have a responsibility to promote access to the justice system for all persons on an equal basis, regardless of representation.

The Alberta Court of Appeal (May 2, 2016) allowed the appeal.

Now, the Supreme Court of Canada has endorsed the document and from this point, all Judges/Justices/JP will be obligated to follow it when one or more parties before them is self-represented.

Pintea v. Johns, 2017 SCC 23 (CanLII)

Pintea v. Johns

Valentin Pintea v. Dale Johns, et al.

In laymen’s terms, the gross imbalance between represented/unrepresented litigants will shrink.

The Courts will now be obligated to go the extra mile to ensure that the proceedings are done fairly, and in the overall interests of justice.  The ruling goes even further than what may be expected.

“Judges have a responsibility to inquire whether self-represented persons are aware of their procedural options, and to direct them to available information if they are not. Depending on the circumstances and nature of the case, judges may explain the relevant law in the case and its implications, before the self-represented person makes critical choices.”

So Canada, and to a degree the United States, is trending towards self representation.

Litigants already represent themselves in small claims court, family court, traffic, landlord/tenant disputes, and occasionally in criminal court.

To be fair though, routine self-representation in criminal court is a long ways off.  However, the pattern seems to be moving away from using lawyers, which many people believe to be expensive and largely ineffectual.

Also noteworthy is that in the Canadian Provinces of Ontario and British Columbia, paralegals are becoming more common as an alternative to lawyers. 

Again, the price involved deters most people from hiring lawyers.  Why pay 10 times as much for the same service?  Why pay for a lawyer when many farm their work out to paralegals? Other Provinces have something similar, as do many U.S. States.

Ontario: How Can a Paralegal Help?

British Columbia Paralegal Assoc

3. A Final Thought

Justice should be available to everyone, not just those who can dig deep for a lawyer.  The options of lower cost legal help, and the new requirements of Judges to ensure fairness, will likely go a long way to seeing this happen.


Posted by Chimera on 08/26/17 at 10:25 PM in Justice systemsItalian systemUS etc systems


Comments

The video about the risks and dangers of representing yourself in court was very interesting. The man warning against self-representing pretty much scared me to death.

Interesting that paralegals are taking on a lot of attorney duties, and that now Judges will oversee more closely the cases of people who self-represent. Even with the online legal forms and resources to teach law, it would be a daunting task.

Very interesting news about the trend of self-representation. I’d always heard the old adage, “Anyone who acts as his own attorney has a fool for a client” and thus thought that even a bad attorney was better than no attorney. As in most things, cost rules the marketplace.

Posted by Hopeful on 09/01/17 at 12:18 PM | #

Hi Hopeful. As Chimera told us, she is not a lawyer, but that might actually make her better at spotting and explaining this kind of thing. She is really good.

Dont ever think that experts know all there is to know. I learned that to bitter cost in the UN. Even for them, it is very hard to know what better systems are emerging on the other side of the world. Good Japanese and Chinese and German systems are hard to know about because there is the language divide - in Italy too, one university now teaches science etc only in English:

https://www.insidehighered.com/news/2012/05/21/italian-university-joins-international-colleges-embracing-english-language

Not that the anglo saxon world is guaranteed to have the best systems, they as much as any group too soon sit on their hands. A lot of the news coming out of Houston is about systems archaic or broken down or not even there. Unbelievable how bad it is. The flood insurance system among many others made the situation worse!

In many ways the Houston area is a museum. The chemical industry uses some systems going back to the 1940s. Again and again Houston has been flooded and the rest of us made to help pay the bills.

The central government transfers several hundred billion a year from the east and west coasts to the interior - and then gets demonized ESPECIALLY around Houston for quite mild regulations meant to put a stop to things like this. 

Very bad long term economics. If the overall cost of the rebuild is close to $1 trillion, and if we are all made to help to pay for that, I’d sure like to see every dollar made conditional on systems being checked and made good. Is that too much to ask?!

Posted by Peter Quennell on 09/01/17 at 01:43 PM | #

Hi Hopeful,

One point to consider: lawyers are putting themselves out of work if they publicly acknowledge just how much information is now freely available.  So there is an enormous conflict of interest.

Likewise with the paralegal rise.  In straightforward and small matters, it is throwing money away to hire a lawyer over a paralegal. Again, lawyers hurt their bottom line to admit this publicly.

Services such as LegalZoom have vastly improved, and have actually automated some legal functions.

Contrary to TV and movies, cases are not normally thrown out over trivial matters. Judges, Justices, Masters, Justices of the Peace, and Deputy Judges do try to be fair.

In my [limited] experience, the above decision makers have always seemed to go the extra mile for self-reps, so this ruling may just be a formality.

In the age of the internet and mass media, why won’t people exhaust their “free” options first?

In recent years, for example, legal research has become far easier to do.  Anyone with the skills needed for Google and Wikipedia can now research areas of the law, case rulings and such.  Here is my favourite (Canadian) site.

(It’s free)  canlii.org

Also, the court forms, as well as how to get the paperwork together is also available online.  In my case, I have actually done appellate (Ontario)work by following the instructions on court websites.

https://www.ontario.ca/laws/regulation/900194

http://ontariocourtforms.on.ca/en/rules-of-civil-procedure-forms/

https://www.attorneygeneral.jus.gov.on.ca/english/courts/divisional/Guide_to_Appeals_in_Divisional_Court_EN.html

http://www.ontariocourts.ca/coa/en/info/howto.htm
on court websites.

P.S., my appellate record is 2 appeals (1 win, 1 loss) and 1 motion for leave (successful).

Yes, it is daunting, no question.  And many people don’t have the stomach for such matters.  But it is nice to now have all this information so easily available.

In the case of self-representing, it is not so much “the win”, but rather “making a point”.  However, if you have a Small Claims Court case, a traffic dispute, a rental dispute, etc… and it is only $500-$2000, you can’t justify paying more than that for a lawyer. Even a paralegal may not be worth it.

Posted by Chimera on 09/01/17 at 06:22 PM | #


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