'This is not television,' judge says
People choose to represent themselves even when they
can afford lawyers
The Globe and Mail,
by KIRK MAKIN - JUSTICE REPORTER
May 16, 2007
After two hours spent riding herd over a parade of
teenaged mothers, deadbeat parents and argumentative
spouses, the last thing Judge Harvey Brownstone wanted
to deal with was another unrepresented litigant raising
a smorgasbord of legal issues.
"This isn't a grocery store where you can come and
tell me what you want," the exasperated Ontario Court
judge said. "I'm not your lawyer. I'm a judge."
The vignette illustrates a problem that is plaguing
the courts, Judge Brownstone said in an interview
outside the courtroom. Litigants weaned on TV shows such
as Judge Judy and People's Court seem to believe just
about anybody is capable of representing themselves in
"I don't think that people realize that 70 per cent
of people coming to Family Court have no lawyer," he
said. "People would be surprised to know that there
really is quite a crisis going on. At first blush, one
would think that they can't afford lawyers, but
interestingly, that's not true.
"They have chosen to represent themselves, partly
because they watch too much television and see that
nobody has a lawyer on Judge Judy. They feel they can
tell their own story better than any advocate could. But
this is not television. People need to understand this -
in the same way that you wouldn't try to fix your own
car or you wouldn't try to fill a cavity in your own
Judge Brownstone said that many unrepresented
litigants run aground because they are unfamiliar with
court procedures and fail to produce proper documentary
evidence. Others cannot detach themselves from their
"We have people who come in here and fill out their
form on an application for custody, saying the grounds
for seeking custody are: 'She's a bitch,' or, 'He's a
Nazi,' " he said. "No lawyer would let someone present
that kind of thing."
Curiously, the judge said, many people are caught up
in both a family dispute and a criminal case - usually
involving allegations of domestic assault - yet, they
retain a lawyer only for the criminal case. "When they
are worried about going to jail and losing their
liberty, they get lawyers," he said.
"But their family issue is going to go on much longer,
and is much more significant in the long run to their
family life," he added.
In the case of an estranged couple admonished by
Judge Brownstone last week, each party had arrived with
a laundry list of issues, ranging from support payments
and visitation rights to special child-care expenses.
They had not given each other proper notice of what they
would be applying for in court, and they lacked
documentary evidence, so he sent them packing.
He noted in the interview that each ex-spouse had
obtained the help of duty counsel (a lawyer paid by
Legal Aid to work at the courts assisting unrepresented
people) after arriving at the courthouse. However, a
duty counsel can do little once a case is at the
courtroom door, he said.
In many cases, unrepresented litigants seek a lawyer
after they start to comprehend the complexity of the
court process or they have made a strategic legal
mistake, he said.
"By then, the litigation has often become very
hostile and adversarial," he said. "The parties have
become polarized in their views. I feel that if they had
gotten a lawyer in the beginning, things might have
gotten off to a better start."
The biggest surprise of all may come at the end of
the case, Judge Brownstone said: "I think people need to
understand that when you lose, you pay the costs of the
other side. And if the other side did have a lawyer, you
are going to pay their legal fees."