Legal coaching as a practical approach to Canada’s Access to Justice Crisis. Julia welcomes Marcus Sixta and Jo-Anne Stark.
Legal coaching as a practical approach to Canada’s Access to Justice Crisis.
Marcus Sixta is the founder of Crossroads Law, a well-established firm specializing in family law with offices in Calgary and Vancouver and a 2023 excellence awardee for Canadian family law firm of the year, and more recently, he founded Coach My Case, which offers legal coaching services to self-represented litigants – we will be talking a lot about this in this podcast. A former social worker, Marcus is a certified collaborative divorce lawyer and an accredited family law mediator and family lawyer, and in 2021, he ranked as one of the top 25 most influential lawyers in Canada.
Jo-Anne Stark is a former director of Advocacy at CBABC and the founder of Stark Solutions, primarily focused on helping SRLs navigate the legal system and providing training and certification for lawyers seeking to offer legal coaching services. You may well recognize Jo-Anne from our recent panel episode on limiting the misuse of NDAs by legal professionals as the lawyer who forwarded the extremely successful CBA resolution (94% in favor) on that issue. It was Jo-Anne’s second successful resolution at the CBA, after last year’s A2J Subcommittee resolution, which she also forwarded, calling for the CBA to look into innovative approaches to improving access to justice. Legal coaching for self-represented litigants is one such approach that is gaining traction as the number of self-represented litigants continues to increase all over the country, particularly in the area of family law. Jo-Anne recently publisheda Guidebook on Mastering the Art of Legal Coaching for legal professionals interested in learning how to set up and run legal coaching sessions to help self-represented people. Available online and through major retailers!
Canadian Bar Association - Access to Justice (cba.org)
Reaching equal justice report (cba.org)
Www.legalcoachesassociation.org
Represent Yourself in Family Law Court - Hire a Legal Coach (coachmycase.ca)
Calgary Family Lawyers Divorce Separation Child Support (crossroadslaw.ca)
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A2J – Legal Coaches
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Julia Tétrault-Provencher: Welcome to The Every Lawyer. My name is Julia Tétrault-Provencher. This episode is sponsored by the CBA Access to Justice Subcommittee.
Male Voice: This is The Every Lawyer, presented by the Canadian Bar Association.
Julia Tétrault-Provencher: From the data we have, the estimates range from 50 to 80 percent of all litigants in Canada are self-represented. Proceedings in these cases tend to take longer and settle much less often. In this episode of The Every Lawyer, we discuss legal coaching as a practical approach to Canada’s access to justice crisis. Lawyers, please note: the demand for legal coaches outweighs the supply by a factor of – conservative estimate here – about 1,000 for one.
Please welcome with me for this episode Jo-Anne Stark and Marcus Sixta. Marcus is the Founder of Crossroads Law, a well-established firm specializing in family law, with offices in Calgary and Vancouver, a 2023 excellence awardee for Canadian Family Law Firm of the Year. And more recently he founded Coach My Case, which offers legal coaching services to self-represented litigants. We will be talking a lot about this in this podcast. A former social worker, Marcus is a certified collaborative divorce lawyer and an accredited family law mediator and family lawyer, and in 2021 he ranked as one of the top 25 most influential lawyers in Canada.
Jo-Anne Stark is a former director of advocacy at CBABC and the Founding President of Legal Coaches Association, which is an international network of legal professionals who have special training to offer legal coaching. You may well recognize Jo-Anne from our recent panel episode on limiting the misuse of NDAs by legal professionals as a lawyer who forwarded the extremely successful CBA resolution, 94 percent in favour, on that issue. It was Jo-Anne’s second successful resolution at the CBA after last year’s A2J subcommittee resolution calling for the CBA to look into innovative approaches to improving access to justice. Legal coaching for self-represented litigants is one such approach that is gaining traction as a number of self-represented litigants continues to increase all over the country.
Jo-Anne recently published a guidebook on mastering the art of legal coaching for legal professionals interested in learning how to set up and run legal coaching sessions to help self-represented people. This is available online and through major retailers. For an in-depth look at Canada’s access to justice crisis and what can be done about it, we strongly recommend the CBA Reaching Equal Justice Report. And for a new take on how to design your legal practice you can help more people, just keep listening. Surprisingly, legal coaching is not on a lot of lawyers’ radars. So we decided to start with the basics. Welcome, and how are you today?
Marcus Sixta: Great.
Jo-Anne Stark:Well, thank you.
Julia Tétrault-Provencher: Thank you so much for joining us. What is self-representation? Because I think it’s an important first thing to know before talking about legal coaching.
Jo-Anne Stark:So self-represented are people that are out there that are managing their own legal problems, so everyday legal problems that they’re managing on their own. So in the United States they might refer to them as pro se; in Canada we tend to call them SRLs or self-represented litigants. So it’s people that are managing their own legal matters for a variety of reasons, but quite often it’s due to the high cost of hiring a law firm to represent them in a legal matter. So that’s what we’re referring to when we say self-represented.
Julia Tétrault-Provencher: Okay, so SRL for people who are in this work. And so you said people would turn to self-representation because of the costs?
Jo-Anne Stark:That’s the primary reason. I mean, they’ve done a lot of research over the last ten years with self-represented litigants. Most of the reasons given are affordability, and so they might start off with a lawyer, run low on funds, be unable to continue to retain a law firm, and so they move on to representing themselves because there is no other alternative. If you’re at the lower end of the income scale or have no income you might have legal aid or pro bono type services, but the vast majority of Canadians fall into that middle class, and that’s the sort of middle-class conundrum. They slip through the cracks because they can’t find affordable legal services or even limited legal services in order to help them with their legal problem.
Julia Tétrault-Provencher: And where does legal coaching come in?
Jo-Anne Stark:Legal coaching comes in because we see this problem, we see up to about 3 million people at any given year in Canada trying to resolve their legal matters, and we know that there’s lots of information out there for these self-represented people, so we know that the information is accessible. The problem is that people don’t understand how to use that information and apply it properly to their legal situation. So you need to be able to understand and use the information that’s out there online. And so legal coaching is that key to fill that gap, so in a sense a legal coach can step in and coach somebody, maybe it’s weekly or biweekly, and help them through that gap. You know, understanding how to take the information that’s available online, work with it in a way that's going to help them achieve their goals or the outcome that they want in their legal matter. Did you want to add to that, maybe, Marcus?
Marcus Sixta: Sure. So legal coaching is just one form of unbundled representation. So many people, I’m sure, have heard of unbundled representation or limited scope representation before, and essentially what it is, is you take the whole bundle of potential legal services that would fall perhaps under a full scope retainer, and you start picking away pieces. So, for example, one type of unbundled legal service could be an arrangement where a lawyer goes to court for somebody on one occasion, or maybe goes to a mediation and that’s it, they're not going to get involved with the litigation of a matter.
Legal coaching is one type of unbundled legal service where you’re pulling out the coaching and the advice and the direction and the information providing, and a number of other types of work that the lawyer can do in the background of a file, without actually having to be the face of the file, without actually having to go to court. And in fact, in a legal coaching arrangement that’s set up properly, the lawyer will never go to court for that client, the lawyer will always be in the background, and the client is able to direct the lawyer in terms of the services that they’re looking for, which would include editing legal documents, drafting legal documents, providing advice and direction, providing training, and those types of things.
Julia Tétrault-Provencher: Do you have to make a distinction between legal information and legal advice? So I guess that maybe in this case there's no representation. Do you have to be a lawyer lawyer, or you can be, for instance, a juriste, as we say in French, a juriste, so someone who has legal studies but is not part of the bar, for instance. So is it more accessible?
Marcus Sixta: That’s an interesting question, because it really depends on the province you’re in, to a great extent. Now, if you’re a lawyer and you enter into a legal coaching or an unbundled retainer with a client, then of course you can provide legal advice because under the Legal Professions Act you can do so, because you have that relationship and you are a lawyer. In some provinces, people who are not lawyers may be able to do that as well. For example, in Ontario there’s potential for that. British Columbia, there’s potential for that as well, so long as the paralegal is a paralegal that is a designated paralegal by a lawyer, who is also being supervised by the lawyer, who ultimately is providing the paralegal with guidance.
And in other places, no, it's only lawyers that can provide legal advice, and it’s a very hard line. For example, in Alberta, where I also practise – I practise in British Columbia and in Alberta – you have a situation where there is absolutely no regulation whatsoever around paralegals. The word paralegal isn’t even defined anywhere in any legislation, it doesn’t even exist. And so only lawyers are able to provide legal advice in Alberta. However, I mean, we know that there are paralegal firms out there, in Alberta and some other places as well, that are filling this gap and providing people with what they would probably say is legal information, so as not to be offside of the Legal Professions Act.
Jo-Anne Stark:One of the analogies I often us is when you look at the healthcare industry it used to just be it consisted of doctors, and so doctors were trained and schooled to do everything from delivering babies to surgery to dental work, and what happened over the years is that they couldn't keep up with the demand. And so we saw nurses and LPNs and physiotherapists and pharmacists and all types of healthcare providers each providing limited scope services in a particular field. And so you’ll have maybe up to about 30 different healthcare providers. Now, that doesn’t mean that someone who is your pharmacist is going to be able to perform surgery on you. It’s the same thing here; you're not going to have somebody who doesn’t have the training and isn’t licensed by the regulator providing legal advice unless they’re permitted or given special permission by the regulator.
So that’s what we’re talking about here. We’re talking about expanding the ability for qualified people to provide a service to a completely unserved market right now. So it's not a matter of competition, it’s a matter of those millions of people that are out there have nowhere to go, they've had no alternatives. And so it's not a matter of it’s competing with the lawyers, it’s that these people are not going to hire the lawyers in the first place because it’s too expensive for them. But what they are willing to do is hire lawyers for bits and pieces of work or limited scope services because they can afford that.
Julia Tétrault-Provencher: It’s directly an issue of access to justice, and it’s responding to it. I’d like to know a bit more how you started this practice for yourself, and how it goes, because I think our listeners would be very interested to know if they’d like to do that. Because I feel like it’s a very interesting avenue as lawyers; at the same time, I think you practice as a lawyer but you also do legal coaching. So maybe I’d like to hear both of you, like how you do it, a bit about, yeah, your legal coaching.
Marcus Sixta: Sure, sure. So I got into this about six years ago now, and it came about because I noticed that there was just a huge problem within the court system with people who were representing themselves. And this is something that I became aware of only after I started law school, really. Before that I had this naïve picture in my mind of courtrooms that were something out of TV, right? Where both parties always have lawyers. But then I realized, look, this is a massive problem. When I actually stepped into courtrooms, into courthouses, you see tons of people walking around self-represented, they don’t know what to do, they don’t know where to file, they don’t know how to address a judge, they don’t know what an affidavit is. And I was getting asked all these questions as well.
And so I started looking around for potential solutions, and I was thinking there must be a way to help. And then eventually I discovered this legal coaching practice, and so about, as I said, about six, seven years ago, I started dipping my toe into it. And then when I started my family law firm, Crossroads Law, we started doing some legal coaching and limited scope retainer, sort of more generally. And doing that for a little while I realized that we wanted to focus, be a little bit more focused in terms of the work that we were doing. And so we decided just to do the legal coaching entirely focused on that, and we started up the second firm, which is called Coach My Case. And so Coach My Case is a firm that just provides legal coaching in British Columbia and Alberta. So we provide the advice and direction and information assistance in the background so that people who are self-represented can go to court and represent themselves with more success.
And the reason why this is an access to justice issue is, of course, because without some type of help in the background people who are self-represented, they have nowhere to go. As Jo-Anne was saying, you don’t have enough funding for legal aid to cover everything. Right? There’s not enough pro bono services, realistically, to help everyone out there. And the cost of a lawyer is so high now that you now have this – really the middle class doesn’t have the funds to take a matter to court for any extended period of time. Like we know that the average cost of a two-day trial in Canada, based on surveys that were done by Canadian Lawyer Magazine, for example, they said it was about $30,000. For most people who are earning 60, even 70, even $80,000, they don’t have 30,000 kicking around to go to a trial. So you have this huge population of people that don’t have access to legal services.
There’s also studies out there, I mean, there’s research that says that one in three Canadians are going to have a major legal problem once every three years. Right? So the potential group here is pretty massive, and so I was thinking that there must be some sort of solution, a business solution, really, a different way of doing legal work, that could help address it. And for those people that have no other option, my experience is that legal coaching can be very valuable for them. Because even if they come in and they only have money for one meeting before they go to court, we’re going to tell them, you got to stand up, you can’t wear a hat, you have to address the judge as Your Honour. You have to have all your materials in this binder, it has to be tabbed. Even with that basic information they are going to be, quite often, better off. They may actually be able to have their matter heard and not have it adjourned, for example. It is certainly, I think, a service that’s valuable, and it meets a real need and a huge need.
Jo-Anne Stark:I think I have to agree, and my story kind of starts very close to around the same time as Marcus’s about five years ago, but before that I had been an arbitrator in Saskatchewan, and an arbitrator in BC as well. And I heard a lot of cases over that time period, landlord and tenant disputes where most of the time the parties were self-represented. So when they were presenting their cases to me, they were often struggling with things like the procedures and the rules that they had to follow. Quite often that led to adjournments and delays and extra time from their case. And so I really over the years saw the problem just growing, too, from when I started as a lawyer in the nineties to what we see here today. And listening to the studies of the National Self-Represented Litigants Project really got me thinking there has to be a solution here, and the solution needs to come from those of us who are offering the legal services in the first place. It really needs to be a grassroots effort.
And I started seeing people like Marcus at Crossroads, Denise Berry out on Vancouver Island, I started to see a few people here and there offering something called legal coaching. And so around the same time around 2018 I started exploring it for myself, and I was already a certified executive coach, so I knew that a lot of people were coming to me for coaching help, but a lot of people were also coming to me with their legal problems, right? Friends and family members and things like that. So I thought, well, can this be turned into a real business? And so I explored that. I started the first all virtual paperless all legal coaching practice in Saskatchewan, it was reviewed by the Law Society, and they thought it was such a good idea that they actually made legal coaching an area of practice in Saskatchewan.
And that was out of necessity because I was living in British Columbia at that point, but I was licensed in Saskatchewan, so I needed to come up with an innovative way to still help the clients back home, but they needed to appear in court, and they needed to do their legal work. But I wanted to virtually give them the help that they needed so that they could stay motivated and empowered and work through their legal problems. What I found, though, was even though I established the practice, was that I was getting way too many calls and emails from people outside of Saskatchewan, people from the United States, people from even overseas. Everybody wanted to have legal coaching help, and there was no way that I was going to be able to help these people, and I’m only licensed in one jurisdiction, so was limited what I could do for people living elsewhere.
And so I decided to give talks to law schools, law societies, paralegal associations and that sort of thing, about offering legal coaching services. A lot of them were saying, well, this is great but how do I really get going? I mean, I don’t want to take an eight-month coaching program for life coaches, and I don’t want to try to figure out how to start a business on my own. So at that point, I wrote a book on it, and then also helped found the Legal Coaches Association. And so through that we were able to combine people like Marcus and others across Canada, the US and even internationally who want to offer limited legal services to the public in a way that’s going to be very empowering to the clients and very client centric. So we focus on things like who is your client, what can they afford, what sort of services are they specifically looking for, and how can we adapt our coaching services so that we’re actually filling that need.
And also, we talk a lot about how to build that business platform to be successful, how you can do it on your own on a shoestring budget, how you can work from anywhere and run a very simple business but have that steady stream of income. So we talk a lot about the business side of it and how to actually structure it, so it’s not just how to offer legal coaching but actually how to set up the business plan around it so that people can actually get up and running within a few weeks. And so that’s kind of where that story is, and so now I work with people from all over the place, mostly in Canada. Lately it's been a lot of people in Western Canada who’ve really jumped on the bandwagon with legal coaching; it’s gotten quite big here. Entire firms, like Marcus’s firm, where entire firms are developing legal coaches, right through from lawyers to paralegals, to individuals who are now ready to retire and they want to still offer legal services but they want to do it on a limited basis, and they want to have more control over their time, or they want to do it from their vacation home, or maybe become a digital nomad. We have some people who do that as well.
So it really offers a lot of flexibility, and that’s what I like about it, is that people can create it to be what they want it to be. So as lawyers who have suffered from a lot of stress and a lot of compassion fatigue through that full representation model that we’ve all worked in, can now define what their career is going to look like and make it what it is that it needs to be to help the people for the access to justice problem, but also design a career path that is much more friendly for your own goals in your life and your family and things that you want to incorporate into your life and that are important to you. So really that’s kind of where it all developed for me, and it was basically out of necessity and just seeing that this problem was getting worse and worse over the years.
Julia Tétrault-Provencher: I think this is very inspiring, right on time with all this new era of working from home, people who decide to work for a month somewhere else, and also with this era where people – they don’t want to go back in the office necessarily. And this goes for lawyers as well and we were lucky enough that our job can allow us to do that. And I think what you offer as coaching, this is very post-COVID, also, era that really fits into it.
Jo-Anne Stark:Right, I developed the program, which is the certification program, because people didn’t want to go off and necessarily take all the programs that I had taken but they wanted very specific training. So what I developed was a weekend training, a live weekend training program over three days. And so I’ve had lots of people go through the program and then set up their business practice, and now, because of the demand and because of the time zones we are in here, we’ve actually made it an on-demand recorded training program now that’s nine hours long. And so people who want to get their CPD or CLE credits as well can usually qualify for that in your jurisdiction. So we’re seeing a lot of lawyers saying yeah, you know what, I’m tired of the way that I've been practising law. It’s hurting my family, it’s hurting my mental and physical health, I want to find a new way to practice law, but I still want to be helping people because that’s what really drives a lot of the people that we work with to doing legal coaching.
We recently took a survey of the members of the Legal Coaches Association, and by far, at least three quarters of them, said that the main reason that they wanted to go into legal coaching was to provide affordable services to those people who no longer could afford legal help. So it wasn't even about being able to work from anywhere, any time, or having a steady stream of income and all of those other reasons. The main reason for most of our members is because they really saw a problem out there, and they wanted to basically be part of the solution, which is interesting.
Julia Tétrault-Provencher: Which is also very, I would say, inspiring to hear, because we often hear [unintelligible 00:21:09] lawyers, but obviously people know lawyers are there because they also want access to justice, and they really want to work for that. So I think, yeah, it’s very, very inspiring. So if people who are listening to us would like to find this coaching, where they have to do it?
Jo-Anne Stark:Legalcoachesassociation.org. So, yes, there’s lots of information there. And if people are looking for legal coaches, we have a directory on there for the public as well. But yes, I mean, if you Google search legal coaching now you’re going to see lots of names come up. You’ll see Marcus’s firm come up, you’ll see lots of different people. And it’s interesting to watch the different types of legal coaching services, because the people that I’ve trained have gone on to work in all areas of law. I’ve had criminal law, I’ve had people who do private investigation work, I’ve had people who do commercial work, lots of family law, about half are family law, lots of civil litigation people.
So a lot of people are taking what they’ve learned and then adapting it to the type of area of practice that they offer services in, which has been really interesting to watch that transpire and to watch them build out their websites and things to match their branding. So they find out what their strengths are, what they’re offering as a service, and then they develop an entire program around that and develop the marketing plan and awareness around that. So we offer all of that support to the members and to the people who go through the certification program.
Julia Tétrault-Provencher: When you were both talking, I was wondering, because, yeah, I guess it does improve access to justice, but, for instance, how can people who are in a situation of marginalisation, who are more vulnerable, are people who would really need this access to justice but it’s so difficult just even to – maybe don’t even have access to a computer or something. So is it well known enough, the legal coaching, so that there are some orientation that can be made through different hotspots? Like, I don’t know, super centres or I don’t know if you know firms who are doing that. Maybe your firm, Marcus, is doing that. Yeah, I don’t know if you understand my question correctly. It’s just like how do you bring it to people who need it, the most vulnerable ones?
Marcus Sixta: Well, I think there’s two answers to that. Firstly, I don’t think legal coaching is for everyone. It’s not a solution that’s going to meet everybody’s needs. Right? And I think that the concept of coaching within the model that you learn from Jo-Anne and in actual practise, you quickly realise that ultimately it’s just a very client-centred approach to providing legal services where you’re giving the keys to the client to drive the bus, and the lawyer is acting as that on board navigation system. Right? Ultimately, it’s up to the client to get to the destination, and the lawyer is there to provide the map, if they choose to use it. And the client is able to control their budget because they can come in as much as they want and get information as much as they want. They can determine what they need help with, they can say, okay, I’m comfortable speaking in court, I don’t need to pay you to teach me how to do that, I think I got that handled, but can you please look over my documents, right?
So at the end of the day, the client has a lot of control over their budget, which I think helps with a lot of people who are very budget conscious. And this is sort of the root of the issue here – it’s by far people who can’t afford full representation and who aren’t covered by legal aid who are choosing to do the legal coaching. So to have a service that meets their budgetary requirements, meets their financial need, I think is really important. That being said, some people have zero access to funds, right? And people who are highly marginalized, there are other services available. There's legal aid, there’s pro bono, and there’s nonprofit groups as well that can assist. But we know in practise that there’s thisprimarily what we see in the legal coaching services is you’re dealing with people who have an income, they’ve got a decent income, a middle-class income, but they just don’t have enough money laying around to pay a lawyer for any extended period of time.
So in my practice I would say that we help people who have been marginalized to the extent that the system, the justice system, does not provide them an easy path to represent themselves because the forms are difficult to comprehend, the language is archaic, the processes are mysterious. [Unintelligible 00:25:26] even for lawyers are mysterious, right? Sometimes you go from one courthouse to the other and you don’t know what [unintelligible 00:25:33]. Right? So in that regard, I think that people are marginalized when they go in and self-represent. But for people who are really on the margins of society for various reasons, very low income, maybe they have mobility issues, maybe they have unemployment issues, maybe they’re suffering from different structural societal issues, I think that there are other services available that are there to help meet those needs, and coaching is just not a panacea that is going to be able to meet everybody’s needs all the time.
Now, the second part of, I think, your question there, was on how to discover the legal coaching services that are out there. Well, this is sort of the biggest challenge for people who are providing legal coaching right now. It is a different way of doing things, so it’s not a service that many people have heard of before. In fact, nine times out of ten when I’m explaining what I do to someone on the street, they have no idea that this is something that exists. They’ve never heard of it before. And so with the way that marketing is done now, primarily it’s search engine based for legal services. Consumers aren’t typing in I need a legal coach [unintelligible 00:26:56] right? How can they do that when they don’t know legal coaching is an option?
So that’s one of the reasons why I like coming on podcasts like this, and also encouraging other lawyers to get into it all the time. I talk about legal coaching as much as I can and try and spread the word, because I think as a legal community if we work together to spread the word on legal coaching, if more lawyers are doing legal coaching, then naturally word about it is going to go out there and people are going to have a better understanding of this service.
Jo-Anne Stark:You know, you think about that and years ago in the eighties when mediation and arbitration was new and emerging forms of alternative dispute resolution, there were a lot of people that just shook their head and said yeah, no way. If there’s a dispute, you go to court. That’s the way it is, that’s the way lawyers are trained, and judges are trained to deal with these disputes. And it was really considered a little bit of a farfetched idea. And my sister was actually one of the people who developed ADR back in the last seventies and early eighties, and she told me about the story about how it took seven to nine years before it became more of an acceptable way to offer dispute resolution services. And now you see lawyers all the time that are mediators or that work as arbitrators, and it’s become very much an everyday thing. And I think a lot of the members of the public are quite familiar with things like mediation and arbitration.
And I see the same thing happening with legal coaching, it’s just something that’s going to take a little bit of time to build that awareness. And that’s certainly one of the reasons why the association was formed was because we saw the need that there was a solution out there, but a lot of people just don’t know about it. And then on the second part of your question, the marginalization thing, I do want to mention that quite often when I'm doing training I’ll have people in my training sessions – like this last weekend I had somebody who’s originally from Mexico and speaks Spanish. So you’ll have people who are very familiar with particular cultural sensitivities of a group, or maybe language barriers, and so sometimes they’ll be coming to Canada, and they’ll have difficulty understanding the system. Maybe they’ve become a landlord and they don’t know really what their roles and responsibilities are, they have that language barrier and don’t really understand the information online.
And so we find that sometimes what our legal coaches can do is be like a conduit. They can help them with paperwork and forms and presenting something before a judge or an arbitrator, because that particular legal coach also understands intuitively what the cultural sensitivities are, and maybe what they’re able to handle, the language barriers, a little bit better. So we do see a little bit of a connection that way, but as Marcus points out, obviously it is a legal service where you would need to pay for it. Anyone that’s marginalized because of income and they have no income – there are services out there, I mean, it’s limited but there’s legal aid, there’s pro bono, there’s advocacy groups, that sort of thing. It’s the middle class that really this is targeting, and some of those people are marginalized but for other reasons.
Julia Tétrault-Provencher: So we know from our data that it’s between 50 to 80 percent – I don’t know if it’s accurate, but of all litigants in Canada are self-represented. This is major, so we just wanted to put some numbers out there also to show how major it is. What’s the impact of self-representation, of self-represented people, who are not coached properly on the legal system, but also more generally politically speaking or economically speaking, the impact of self-representation today in Canada?
Marcus Sixta: Well, I mean, if you want to go really big, I think that the big impact of having people who are self-representing who feel lost in the system, is it actually is an attack on the rule of law. Right? Because if someone goes into the court system, and they’re representing themselves for financial reasons, they can’t afford a lawyer, they don’t have any legal assistance, they find the system confusing. They go to court for the first time, it’s adjourned. Maybe the second time they don’t have the materials, it’s adjourned again. They can’t figure it out. So they’re suffering a lot of stress and anxiety and confusion. They get into court, and finally have their matter decided. Other side, who has more money and can afford a lawyer, wins. That makes them walk away feeling like the system is pitted against people who don’t have access to money. This is totally unfair. What kind of justice is this? Right? So I think in the end it just brings the whole system into disrepute for people who end up having really bad outcomes, because they don’t have access to legal help.
And that actually is an attack on the rule of law as a whole. And I think that there are justices and commentators who recognize this. Many judges who I’ve talked to talk about this being an access to justice crisis. I know that Supreme Court of Canada, there have been justices who have spoken about an access to justice crisis that we’re in right now. You’ve just mentioned some numbers as well. And it depends on the jurisdiction you’re in, but in some jurisdictions I’ve seen research that shows that – that indicates that it could be as high as 80 percent for some legal areas. So if you have that many people who are feeling this way, it is a real crisis that brings the whole system into question in terms of its fairness, and people start trusting the legal system less. So I think it is a big systemic issue that we all need to start thinking about really seriously as lawyers and people who care about the rule of law. Because if not, it is eroded.
Jo-Anne Stark:And it even impacts everyone that – we have cases where there are lawyers on both sides. They’re sometimes waiting instead of a year to get into court for trial they might be waiting three years. So it impacts everybody, all the way through the system. Not just the self-represented litigants but it impacts the entire legal and justice system at all levels, because everybody has to sort of like wait and wade through all of that. But if you have people that are getting the help they need in the background and cases are at least getting – proceeding and going forward, and there’s less delays and less adjournments, it actually will then have a ripple effect through the legal and justice system and help improve those wait times. And that’s something that obviously would benefit everybody in the system; even those lawyers who don’t want to be legal coaches, that’s fine, but again, wouldn’t it be nice if we could actually resolve things for our clients in a third of the time?
Marcus Sixta: Well, I think that’s an important point, too, is that if more people under – if you provide the information and advice, even on a summary basis, for people to be more efficient with their legal matters so that things aren’t being kicked down the road indefinitely by adjournments, how much more free court time will you have, right? How much less wasted court time would there be? With the crisis in access to justice, I think we do see a real knock-on effect in terms of court resources being used up. I mean, we know from people who are self-represented they’re going to spend more time with the clerks at the counter asking questions. They’re going to be spending more time in court on unnecessary matters or not being prepared. So it is a drain on the resources of the system overall.
Julia Tétrault-Provencher: Have you received some feedback from judges saying that they saw the difference between a client that you coached or that was coached and another one?
Marcus Sixta: Well, yeah, for sure, I’ve had some feedback like that, but I think you can also look to cases where legal coaches have had success in court and it’s been recognized because they asked for costs for their legal coach, and they’ve been awarded costs for their legal coach in the background. So in that situation a judge is not only saying that it’s valuable, but it’s actually – it's worth something in terms of a cost analysis.
Julia Tétrault-Provencher: Marcus, you were doing family law, correct? Okay, so because when you were also talking and when we talk about the people who are vulnerable, so I also understand correctly that it’s [unintelligible 00:35:18] middle class people who are vulnerable for other reasons. And I’m thinking sometimes women, in situation of divorce, for instance, when you were talking one of the party has money, the other one doesn’t, and one might not have the money to pay for a lawyer. And I was thinking – is it a situation – I kind of see this legal coaching also that might be a tool for some women who are in a situation of divorce, or the situation – because we know that often gender is a reason for vulnerability. So I’d like to know a bit if you have any thoughts about that.
Marcus: Yeah, for sure, it’s one of the tools that we have when we encounter a situation where one of the parties may not have adequate funds or may run out of funds. I think that we as lawyers who are advocates, who are working in family law and other areas, you have to be aware of your client’s monetary situation, because that’s part of the whole litigation strategy and plan. If they run out of funds, then what? Right? And so I think we have to have some alternatives. So for us one alternative is we can direct clients to divorce financing companies; there’s companies in Canada now that will provide financing for divorce matters; they’ll look at what the assets are at the end of the day, and what the person’s entitlement to the assets are under the family law legislation, and they’ll provide some financing to that person on that basis. So it’s easier to access those funds, then, for example, with someone who hasn’t worked for 20 years goes to the bank and asks for a loan, right? They’re going to be rejected.
So these companies will do a different type of analysis. So that’s one tool we can pull out. And then another tool is we can direct them to legal coaching. Right? And we can say if your funds have run dry then we can help you in the background so that at least you can move this matter along. And certainly we’ve had files where people have started with full representation, run out of funds, or come close to running out of funds, and we’ve jumped in to do some legal coaching. And then maybe they’ll have access to finds again, through either a court application that we’ve helped them, maybe an interim distribution of family property, or because a relative has come out of the woodwork and helped them out, and then they come back and they get back into a full retainer, full representation. So you can have some fluidity there in terms of how you’re managing that client’s file to best meet their needs in the way that is going to be possible just with regards to their finances.
Jo-Anne Stark:I think we find a lot of situations, too, when women are facing a family law issue, a lot of women I talk to, and I know I certainly went through this myself with my divorce, is you have to come up usually with a pretty big retainer in order to retain a law firm. And as someone who was a stay-at-home mum for the better part of nine years, I had no income, no job, no way to put a retainer down, and my former partner had all of the assets and hidden in his name. So there was literally no way you could even put a retainer down; I had to go on the idea that at the end of this I’ll pay you. Well, it ended up being from beginning to end, really, 12 years. And so you have to be able to find a lawyer who’s willing to do that, and as a lawyer I was able to but I couldn’t help but think about all the people out there, and a lot of them are women and single mothers, and things like that, that are sitting there going, okay, I know what I’m entitled to, I know I’m not a poor person, but at the same time I can’t even get in the door to get someone to represent me.
Because basically I’m going to have to come up with a retainer to begin with, I’m going to be billed for work in progress, likely, and I’m going to have no way to do that, because the money isn’t going to come to me until potentially years down the road. And so there is a terrible power imbalance but also a financial imbalance, and so that’s something where if someone can even get some limited help based on their limited income, like if they’re middle class and they can afford to pay as you go, then legal coaching at least offers a bit of a solution, but it’s also one that’s very empowering in the way that the process works. And so for women, a lot of women and a lot of people who are feeling a lack of power in a particular relationship with another party, they’ll find that they’ll go through the coaching process and because it’s so holistic and it builds on the person and their personal goals and where they want to get to, and it’s very empowering, that people come away feeling a lot more confident and a lot more ready to take on additional legal problems in the future.
They’ve done studies to show that people are at least 94 percent more likely convinced that they can take on future legal problems, that they feel like they’re stronger, that they’re smarter, they understand their rights and responsibilities better, and they’re able to take on challenges in the future. And so that part, you don’t get that with the traditional practise of law. You get handed your file back and a bill. You don’t have that sense of empowerment. And so that’s something that probably I find more satisfying than anything, is talking to my client after they’ve been to court, and just hearing their voice, how proud they are and how confident they feel. I find that to be extremely satisfying as a legal service provider.
Julia Tétrault-Provencher: I just love what you said, I had goosebumps, because I feel like it’s so true, and I think it’s so empowering, because now that I know how it works, I feel like it also gives people the power and more control about their situation as well. And I think this is extremely important. And also, when you talk about the rule of law and the legal system, it’s just – we tend to forget this part, that people – they don’t want to be in court, they don’t want to face this legal problem. At least then they know they understand more how it works, I feel like they’re way more empowering, and as you say for the future it’s very important. So, thank you very much for your answer. We liked it.
Marcus Sixta: Building on what Jo-Anne just said there, I mean, certainly I’ve heard from many clients who are extremely satisfied and feel extremely empowered after they have gone to court and been successful on an application where the other side was represented by a lawyer. Right? And they managed to – they tell you – you know, they go on and tell me, I wiped the floor with the lawyer [unintelligible 00:41:23]. You know, the judge was so impressed and he was shaking [un 00:41:28] the lawyer, and – you know? So it can be super satisfying and certainly empowering for people who are able to go into court and have great success, even when the odds are stacked against them.
Julia Tétrault-Provencher: Mm-hmm. Mm-hmm, yeah, even maybe if they don’t win, maybe it’s still some kind of win because they learned something and, I mean, they – yeah, they know more and they feel empowered.
Jo-Anne Stark:A lot of people will say that even if I had done better with a lawyer representing me, the reality is that I felt like I’ve been heard for the first time. So they got to stand in front of a judge, and they got to speak their truth. And whether it was done exactly like a lawyer would do it, well, it probably isn’t. But the fact that they got to speak in front of a judge and be heard – and that never really occurred to me before that, because usually when I go to court or go to chambers the client is in the back sitting on a bench, right? And when I became that person, and I was that legal client sitting on the bench, it just about drove me crazy, because I was like they’re messing up, they got it wrong, I know the answer to this, but I never got a chance to be heard other than when I was on the stand as a witness.
And so for a client to be able to stand in front of a judge, and even if they don’t get the exact outcome they wanted, it’s something less, they walk away and I’ll say, well, how do you feel about it now – I'm proud of myself, I was heard. Maybe that wasn’t the right judge, or maybe they didn’t see it my way, but I felt like I finally got heard. And for a lot of people, it’s that feeling that means more, and it’s those intrinsic things that are so important to people. It’s not always about getting the extra dollar too out of it, it’s about that feeling of I can move on now. I did something, I accomplished something, I was heard, and I can move on.
Julia Tétrault-Provencher: So maybe I will have one last question for you, because I’m now – I mean, I’m convinced, and I think you convinced our listeners as well, how important it is, Maybe also as the lawyer giving the coach is very empowering even for yourself and is very interesting but also for the clients it’s benefit for everyone, for all Canadians, for access to justice [unintelligible 00:43:25]. But for people who would be interested to do legal coaching, do you have any tips? Things you would have loved to know six years ago when you started? Or maybe also very good experience that you want to share that you have, a successful story, maybe. The floor is yours for those little last words, I would say.
Marcus Sixta: Well, yeah, I think in terms of tips it’s an area where you’re practising law very differently. Right? And so there are a number of pitfalls that you can get into if you’re not doing it properly. For example, one common issue is scope creep. Alright? And that’s where there’s not a clear understanding between the lawyer and the client in terms of what the lawyer is supposed to be doing. And this can be a big problem if the client goes into court and sort of – it comes out like, well, you know, the lawyer, they were giving me information, I don’t know why they’re not here right now. And then, oh, all of a sudden you’re getting a call from the judge, who’s not very happy with you, to come down to court, and you’re trying to explain, well, well, hold on, I’m just doing the [unintelligible 00:44:33] background.
So you need to have very, very clear expectations, and you need to have a very, very clear retainer agreement. And you can get this information through Jo-Anne. We’re very grateful to have Jo-Anne who’s doing the training now and certifying people so that they can provide legal coaching in a safe and effective manner for both the client and the lawyer. Because there are particular ways of practising in this area that are different than full representation, and you have to be cautious about that.
Jo-Anne Stark:Yeah, and I think I – I mean, I agree with everything that Marcus has said, and I think that the one thing that I would want to leave as a final word is Wayne Gretzky famously said go where the puck is going, not where it’s been, and I preach that all the time to people. It’s those that adapt that will survive in our industry, and our industry is very slow to change. So one thing we need to be aware of is future trending, and people like – organizations like Clio who put out annual reports talk to clients all the time and they know that they want a more client-centred practice, so they want the law firm or the lawyer to focus more on the client as opposed to the legal problem. But the big thing that we’re seeing now – and that you hear about all the time – is the introduction of the use of more artificial intelligence, or AI. And I think that lawyers really need to be aware of this, because even if it’s a tool you’re not ever going to use in your law practise, I can tell you right now self-represented people who are self-help people are Google searching and they’re using AI tools.
They’re using ChatGPT now, they’re going to be using whatever new forms of AI come through the system, and we’re going to see it evolve at a rapid rate, and we’re going to see a lot more self-represented litigants relying and using forms of artificial intelligence. And so where do we want to be as legal professionals? We want to be the ones that help them take that tool, use it properly with proper input and proper understanding of that tool, and use it in a way that’s going to be effective in positioning themselves in their legal matter. You don’t want people running around using a tool and not understanding what it means with respect to their legal problem. So, again, legal coaches are people that will be really uniquely positioned to fill that gap between the use of AI and the clients out there that are using AI to manage their legal problems.
So I think we really need to be aware of what’s happening because things are going to move very quickly. Regulators are probably going to be moving a lot more slowly. And with the – again, I do want to mention too that the CBA did pass a 2022 resolution that I proposed, and that was to introduce more levels of service and limited legal scope services and training in that area, and to push the regulators to understand that we need to remove any barriers to lawyers providing these types of services because people are going to be needing them more than ever as we move forward.
Julia Tétrault-Provencher: Thank you very much. Is there anything that I haven’t covered that you’d like to cover?
Jo-Anne Stark:Marcus, do you have situations where under, for example, in BC the provincial court rules for family law, do you have situations where you have clients coming to you saying, “I don’t know how to use that, and I want to get some coaching on that.”?
Marcus Sixta: In terms of the provincial court rules?
Jo-Anne Stark:Yeah, the new system where it’s supposed to be more self-help, kind of like the Civil Resolution Tribunal, where you go in and you plug everything into the Internet Explorer, and it’s supposed to get your –
Marcus Sixta: Yeah.
Jo-Anne Stark:Yeah, it’s supposed to get you going with your litigation without the use of a lawyer.
Marcus Sixta: Yeah, I mean, I think it’s helpful. I think that court forms, court rules, they should be easier to read. They need to be more accessible for people. But there’s still problems. A lot of people don’t understand how to fill them out, or they may – once they do, if they don’t understand the process they don’t understand how to get in there and address the issues, they don’t understand how to do the research, they don’t understand how to run the calculations that they need to for support, for example. So there are a lot of different pieces on a file, it’s not just about filling out forms. How you fill out the form is also important, what you put in an affidavit is also important. Is it an affidavit that is actually just facts, or is it just somebody’s arguments that they’re making? So there are, I think, ways that we can make the court system more accessible.
If you look at what’s happening in the US right now, I think there’s a lot that’s going on there through courthouses themselves to make the system more accessible, and I think that that’s probably the direction that we need to go as well. For example, in many US jurisdictions they have what they call legal navigators who work within the courthouse to provide people with legal information and direction and advice, and that’s their role. They may even help them draft their forms. So I think that we need to start providing more access to services like that. I think that this is something that governments are very well aware of. I think that across Canada there is an understanding on the provincial level, probably the federal level as well, that legal services need to be provided differently in the future in order to be more accessible to more people, and there’s a huge access to justice crisis that’s not solving itself, and in fact it’s getting worse.
And when I say that provinces are recognizing this, you can just take a look at what’s happening in British Columbia right now with the Government of British Columbia now creating a single regulator, which Jo-Anne knows all about, where they’re going to be allowing paralegals to be self-regulated to an extent so that they can provide legal advice and information, maybe even go to court for people. If you look at what’s in the new Divorce Act – and there’s actually a definition in there where it leaves it open for non-lawyers to provide legal services. So that was an amendment to the Divorce Act a couple of years ago. So on the federal level they’re also aware that lawyers providing these types of services alone is probably not enough. And so I think that there’s room for change.
Lawyers are going to have to change the way they practice and provide different services and be more client-centred, as Jo-Anne has emphasized. I think that the court systems themselves are going to become more accessible by using programs, for example, in BC in provincial court, what they’re doing now, probably also utilizing AI to some degree. But yeah, I think across the board we’re going to be seeing some major changes within the next ten years because you’re going to have a lot of people running down to court using AI, and that that’s going to be the answer to their problems. And maybe – you know what? Maybe to some degree it will be, right? If we forecast this, ten years in the future we may have some AI that’s better at providing information on legal issues. Right now, it’s not so effective at that, but I think there’s always going to be a need for people who are trained in law to be able to audit that information and ensure that it’s correct. Right?
Jo-Anne Stark:And I think one of the things that I’ve been very critical of is that when you look at government solutions or departments of justice and they come out with things like in BC, for example, the CRT or the Civil Resolution Tribunal to handle a lot of the small claims and strata actions and minor accidents. Or the new provincial court rules, which is supposed to be a similar kind of process where you can go into it for certain types of family law matters, and it’s supposed to be user-friendly, do-it-yourself kind of system. But the criticism I have is that when they do their surveys and they tout it out to the media, they’re only interviewing or getting survey results from the people who made it right through the system. And when I ask them, well, how many people started and tried to log in and tried to get going with their matter and then dropped off, how many of those IP address are you tracing, I get told, oh, we don’t trace that.
And to me, that is a key problem, because if only 20 percent of the people are able to go through these complicated systems and have their matter resolved, then yes, go ahead and interview and see what they say in a survey, whether it was satisfying or not. What about the 80 percent that didn’t make it through? And that’s the numbers that I'm curious about, is what about all the people that drop off and say I don’t understand what it’s even asking me, I can’t get the system to work, I don’t know how to upload this stuff, I don’t know what I’m doing, so I’m just going to give up. And that’s a key factor here, is they think they’re solving the problem – well, why are there so many people out there wandering around without any help and trying to find help? It’s because the help that’s being provided isn’t always that helpful, and so we need to find ways at the grassroots level as legal professionals to offer tiers of help and different levels of help. as we’ve seen in the healthcare industry.
And I think that that’s really what we’re going to see, is a movement. If we look at ten years from now, as Marcus says, what does it look like ten years from now? Well, it’s anybody’s guess, but we’re going to see a lot of AI in place. And I think we’re going to see a lot of different tiers and levels of legal services and legal help available so that people can fit it within what they need, when they need it, and within their budget. And I think that that’s something that we’re going to see in the future, and it’s a big opportunity for lawyers out there, if they just capitalize on that and adapt to that. But if they resist it, then I think it’s just going to cause them to potentially lose a lot of business in the long run.
Marcus Sixta: Resistance is futile. I mean, I think we've seen –
Jo-Anne Stark:It is.
Marcus Sixta: We’ve seen that happening already. There was a lot of resistance to the change that’s happening in BC right now; that resistance has been futile.
Jo-Anne Stark:Yeah, it’s happening. The changes are happening, and they’re recognizing there’s all these different levels of help.
Marcus Sixta: Yeah. I think that the government’s just saying you guys, you lawyers have had long enough to try and sort this out, and it’s just getting worse, so we have to step in now. And we’re going to see big regulatory changes right across Canada over the next ten years.
Jo-Anne Stark:Yeah, I see that as well.
Julia Tétrault-Provencher: Well, thank you so much both of you. It was very interesting, and I think our listeners will learn a lot too, because I’ve learned a lot. It’s such an interesting way to improve access to justice. So thank you so much, Jo-Anne and Marcus. And thank you for listening. Reach out to us any time at podcast at CBA.org, and be sure to check out our other podcast series, Modern Law/ Droit Moderne with Yves Faguy, Editor-in-Chief of the CBA National Magazine, and Conversations with the President, featuring this year's very personable President, Steeves Bujold. Have a great day.
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