I have a column at slaw.ca this week on literacy and access to justice. A Federal Court subcommittee tasked with examining the Federal Court Rules issued a report last Fall that touches on access to court rules and procedures. It noted:
To self-represented litigants trying to comply, the rules often seem to be a collection of legalese arranged in a baffling order.
They are not alone.
Many counsel representing parties are infrequent litigators in the Federal Courts. Our consultations revealed that many find the Federal Courts Rules hard to follow. Many find the arrangement of the rules and the tables of contents and indices in the published versions of the Federal Courts Rules inadequate. Indeed, experienced practitioners in the Federal Courts and even some judges and prothonotaries find the arrangement of the rules and the tables of contents and indices unhelpful.
Rather than redesign the Rules, the subcommittee proposed alternate versions of the rules on the website, as well as the use of checklists.
… For example, by clicking on the word “bring a motion” on a webpage, a litigant could be told, in plain language, exactly what needed to be done to bring a motion, perhaps in the form of an easily-understood checklist, complete with properly-formatted pdf forms in which to type the details. In addition to the existing indices and tables of contents offered by commercially-available versions of the rules, a highly detailed, web-based searching tool could be introduced to the website.
Ultimately, the Federal Courts’ websites could offer guidance, both verbal and through multi-media presentation, on when to bring motions, what attracts and repels judges and prothonotaries, and how to conduct oneself in the courtroom. At present, many judges speak at lawyers’ conferences about advocacy and persuasion, and how to maximize their clients’ chances of success. Why shouldn’t this information be available to all, including self-represented litigants, expressed in plain language on the Courts’ websites?
This approach is already in the planning stages in the Federal Court of Appeal. The subcommittee noted that:
The assistance given by the Federal Courts’ websites would not replace professional advice and representation. But it would inform the public better about how to proceed in the Federal Courts. Litigants might act in a way more consistent with the prudent management of court resources and the efficient resolution of disputes.
This is a step in the right direction for the court. However, the decision not to rewrite the Rules to conform with plain language principles has not been well-explained. Although it would be a monumental task, there is no principled reason for keeping the official rules opaque.