Drafting a Defence as Self Represented Litigant

Empowering Self-Represented Litigants in the Adversarial Legal System by Jay Chauhan*

In the realm of common law, a tradition built upon precedents and the initiatives of barristers in the English jurisdiction, the legal landscape is both intricate and demanding. Historically, the Inns of Court in England played a pivotal role in shaping the adversarial system we know today. The Common Law was developed in England after the withdrawal of Roman Empire from England. Inns of Court came into being around 14th Century. Barristers, by crafting legal arguments to protect their clients, contributed to a system where plaintiffs can initiate actions with a recognized cause and serve defendants, who then must respond within a stringent timeframe, typically around 20 days.

The Burden on Defendants

For the unrepresented defendant, this timeframe and emotional trauma of defending oneself poses a significant challenge. Legal system does recognize the cost consequence of a claim but rarely the emotional trauma it creates in finding Court Room resolution of civil cases. Unlike lawyers who have dedicated at least three years to studying law, a self-represented litigant must swiftly acquire knowledge of both procedural and substantive law to draft a competent defence. The cost of legal representation, often ranging from $300 to $500 per hour, exacerbates this challenge, making it financially prohibitive for many to hire professional legal assistance.

Artificial Intelligence

AI is making considerable strides in advanced drafting skills required in drafting legal documents and as of now in 2024 there are no reliable programmes developed to create defence or claim using AI with accuracy. The time is not far when we will see this sophistication which will enable the self represented litigant to match the skill of a lawyer in legal drafting. This will affect the lawyers income but will contribute to create sense of justice for the public which often finds the legal system challenging. We will need to have more judges who will need to face additional work resulting from citizen bypassing the lawyers and reaching the court system to seek justice which they have a right to do under the constitution.

Rising Self-Representation

The high cost of legal services has led to a growing trend of self-representation. Drawing from my 50 years of experience as a lawyer, including 24 years as a Deputy Judge, I have observed an increasing number of regular citizens adeptly navigating the legal system on their own. These individuals are learning enough law in a short period to effectively defend themselves, often matching the skills of seasoned lawyers. Bing AI and google search engines and You Tube are making considerable strides in providing legal information needed for the defence or claim.

The Legal System's Response

Recognizing this trend, the Law Society has acknowledged the need in the Rules of Professional Conduct for citizens to manage their legal affairs independently and seek legal assistance only when needed and for the procedure needed to be done. Self-represented litigants are becoming more common, and while this democratizes access to justice, it also poses a threat to traditional legal practice. Lawyers, whose income depends on client representation, view this shift as a potential threat to their livelihood. Unlike the medical system, which is publicly funded, the legal system relies heavily on private expenditure, putting those with limited financial resources at a disadvantage.

The Financial Disparity

Most people do not budget for legal fees, giving the wealthy a distinct advantage in litigation. While legal aid exists, it is typically reserved for specific situations and rarely covers civil litigation. This leaves many innocent citizens, especially those of modest means, struggling to navigate a complex legal regime without professional assistance.

Conclusion

The adversarial legal system, rooted in historical precedents and designed for a time when legal representation was accessible at a cost, now faces the challenge of adapting to a modern world where many cannot afford professional legal services. As more individuals take on the role of self-represented litigants, it is crucial for the legal system to provide adequate support and resources to ensure justice remains accessible to all, regardless of financial standing.

The journey of self-representation is daunting, but with determination and the right resources, many have shown it is possible to effectively defend oneself. This shift towards self-representation not only empowers individuals but also calls for a reevaluation of how our legal system can better serve the public.

In my recent experience I found Toronto Metropolian University more tuned into understanding of this dilemma of the society.

*Jay Chauhan is a lawyer in Ontario, UK, and India and a retired Deputy Judge of Ontario, has done many CPD lectures and addressed many bar associations and universities in several countries. He also runs a free programme called Angel Mentorship to support lawyers with a vision which is on facebook.

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