Authored by: Erin Jeon, University of Manitoba Law Student
Self-represented litigants (SRLs) face numerous barriers within the justice system. One of the most significant barriers occurs long before an SRL’s case even approaches the courtroom: the filling of court forms. As fewer than 25% of Canadians are able to read legal documents or understand legal language,[1] completing court forms is an intimidating task for most SRLs. With the number of SRLs increasing, the impact of challenging court forms is becoming more significant. SRLs’ rights may be compromised by their inability to correctly fill in court forms; they may unintentionally prejudice themselves in litigation; or they may become so frustrated that they abandon the form entirely.[2] The court process may also be slowed due to staff or judges having to explain forms to SRLs.[3] The accessibility of court forms is therefore a barrier that must be addressed for SRLs to have access to justice. In two studies, Amy Salyzyn et al examined functional literacy as a possible method for addressing this barrier.
Functional Literacy
Salyzyn et al took a unique approach to literacy in their studies. Instead of evaluating the ability of individuals to read, their functional literacy approach examines whether an individual can complete certain tasks.[4] The individual is then assigned a literacy level based on the complexity of the tasks they are able to complete.[5] Functional literacy is valuable in the legal context to help court form writers understand what creates complexity in forms, and therefore will help form creators produce documents that are more accessible for those with no legal training.[6]
Salyzyn et al conducted two studies examining Ontario court forms within a functional literacy framework. In the first study, two research assistants assessed the difficulty of 282 tasks found in four court forms.[7] The second study involved twenty participants, all undergraduate students, who attempted to complete a court form with the purpose of launching a complaint against an Ontario landlord.[8] Both studies identify complexities within the court forms and contemplate improvements that can be made to increase their accessibility. The second study frequently corroborates and builds upon the findings of the first.
Functional Literacy Challenges in Court Forms
Numerous challenges were identified in the four court forms from the first study. Broadly, the assessment revealed “unclear grammatical expression; technical terms that are not explained; vague or incomplete guidance; and a wide variance in reading levels.”[9] Other challenges include requiring individuals to generate information using legal knowledge; inferring the meaning of legal terms; utilizing multiple sources of information; navigating the complex structure of the forms; employing the distinct guides for the forms; and deciphering “distractors” (for example, broad requests for information or the use of unclear terms).[10] Adjacent challenges that were identified include contradictory information given by court staff and determining which forms were necessary to complete.[11]
The second study noted that participants had difficulty with interpreting common terms within a legal context, leading to several participants relying on the typical meaning of the words; for example, participants struggled to understand the terms “substantial,” “interference,” and “enjoyment” within the phrase “substantial interference with reasonable enjoyment of the rental unit.”[12] Other problems involved the participants knowing they were unaware of the legal definitions of certain words (for example, “remedies” and “sheriff”), and relevant information appearing too late in the document.[13] Some barriers identified in the second study were not at all law related. For example, several test subjects in Salyzyn et al’s second study on functional literacy were confused by the blank space for “direction” next to the “address” space. It was not clear on the form that the “direction” space was only to be filled if the street name included a direction.[14]
The numbers seem to support the overall challenges identified by Salyzyn et al’s studies. In one study of Ontario family law litigants, more than 50% of respondents reported difficulties with court forms and knowing their legal rights.[15] In a national study, 97% of the surveyed court staff said that SRLs needed help filling court forms.[16]
Suggested Court Form Redesign and Improvements
The barriers SRLs face in filling out court forms can be dismantled in a number of ways. There is always the possibility of educating individuals with low literacy levels; however, approximately two-thirds of SRLs in Canada have university, professional, or college training, indicating that many problems arise from the forms themselves and not from the low literacy levels of SRLs.[17] Furthermore, 82% of Canadians achieved a literacy level of 2 or higher, meaning that the vast majority of the population is able to deal with clear, simply laid out information.[18] Despite high-level tasks comprising a relatively low part of two of the four forms examined in the first study, they were crucial to the filling of the forms.[19] Therefore, to improve access to justice for all SRLs, the forms must be redesigned to be more accessible to individuals without legal training.
Problems within forms must be identified for the forms to be redesigned, so a redesigning approach requires “the ability to identify the complexity of a task and, relatedly, the ability to identify strategies to reduce task complexity.”[20] Salyzyn et al suggest a hybrid approach that incorporates both a rating tool to assess court documents and a human-centred design component, which takes the needs and preferences of the user into account in the system’s design.[21] A hybrid approach is advantageous because “form designers not only can obtain specific insights as to why certain tasks might be complex by using a detailed evaluation tool…but also correct for limitations inherent in this approach by engaging with actual or intended users.”[22] From their first study, Salyzyn et al suggest several specific improvements that could be made to court forms to decrease their literacy level. For example, the forms could contain a reference to the associated guide; use full words instead of abbreviations; and clarify which fields should be
[1] Literacy Nova Scotia, “Literacy and Justice” (last visited 5 June 2024) at 1, online (pdf): <www.literacyns.ca/factsheets/Fact5.pdf>.
[2] Amy Salyzyn et al, “Literacy Requirements of Court Documents: An Under-Explored Barrier to Access to Justice” (2016) 33:2 Windsor YB Access Just 263 at 264-265 [Salyzyn et al, “Literacy Requirements”].
[3] Ibid at 264-265.
[4] Ibid at 265.
[5] The levels range from 1 to 5, with 1 being the lowest; ibid at 265.
[6] Ibid at 265.
[7] Ibid at 277.
[8] The participants were provided with one of four scenarios, which described the complaint for which they were completing the form; Amy Salyzyn et al, “What Makes Court Forms Complex? Studying Empirical Support for a Functional Literacy Approach” (2019) 15:1 JL & Equality 31 at 40-43 [Salyzyn et al, “Court Forms”].
[9] Salyzyn et al, “Literacy Requirements”, supra note 2 at 272.
[10] Salyzyn et al, “Literacy Requirements”, supra note 2 at 266; Salyzyn et al, “Court Forms”, supra note 8 at 39.
[11] Salyzyn et al, “Literacy Requirements”, supra note 2 at 268.
[12] Salyzyn et al, “Court Forms”, supra note 8 at 48.
[13] Ibid at 52.
[14] Ibid at 45-46.
[15] Salyzyn et al, “Literacy Requirements”, supra note 2 at 269.
[16] Ibid at 269.
[17] Salyzyn et al, “Court Forms”, supra note 8 at 41.
[18] Fifty-seven percent of Canadians achieved a literacy level of 3 or higher, which includes the ability to solve complex problems and integrate multiple information sources. Since the vast majority of Canadians ranked at level 2 or above, level 2 was considered an “appropriate” level for court form tasks; ibid at 37; Salyzyn et al, “Literacy Requirements”, supra note 2 at 273.
[19] The Plaintiff’s Claim form had 75% of its tasks ranked at level 2 or below, and 11.1% of its tasks ranked at level 4 or 5. The Application about Tenant Rights form (the form used in the second study) had 79.4% of its tasks ranked at level 2 or below, and 10.3% of its tasks ranked at level 4 or 5. The Financial Statement and Divorce Application forms had 42.3% and 52.8% of their tasks respectively ranked at level 2 or below, and 39.4% and 36.1% of their tasks respectively ranked at level 4 or 5; Salyzyn et al, “Court Forms”, supra note 8 at 38-39; Salyzyn et al, “Literacy Requirements”, supra note 2 at 282.
[20] Salyzyn et al, “Literacy Requirements”, supra note 2 at 275.
[21] Salyzyn et al, “Court Forms”, supra note 8 at 65; Margaret D Hagan, “A Human-Centered Design Approach to Access to Justice: Generating New Prototypes and Hypotheses for Intervention to Make Courts User-Friendly” (2018) 6:2 Ind JL & Soc Equality 199 at 202.
[22] Salyzyn et al, “Court Forms”, supra note 8 at 65-66.
The views expressed in these blogs do not necessarily reflect the views of the Faculty of Law at the University of Manitoba and should not be construed as legal advice or endorsement.