A Tale of Two Articles: Two Different Stories about Self-Representation

A Tale of Two Articles: Two Different Stories about Self-Representation

A Tale of Two Articles: Two Different Stories about Self-Representation

On Monday September 22nd, the Law Times and Lawyers Weekly both carried articles on self-representation http://www.lawtimesnews.com/201409224205/headline-news/unrepresented-litigants-make-plea-for-compassion

http://www.lawyersweekly.ca/index.php?section=article&volume=34&number=19&article=3

There was a striking contrast between the two stories. These offer some important insights into the current debate – within the legal community and among the public – about self-representation.

The Open Letter to the Canadian Judiciary

Leading with the headline “Unrepresented Litigants Make Plea for Compassion”, the Law Times covered the Open Letter to the Judiciary written by ten SRLs (with the facilitation of NSRLP).

The Open Letter asks judges to understand the following from the perspective of SRLs:

  • We are here because we have to be, not because we are enjoying this.
  • Please understand that we would prefer to have a lawyer but cannot afford one (at all, any longer).
  • If you would show us basic courtesy and humanity we will make a better job of representing ourselves because it is a very intimidating and undesirable experience.

The Law Times article quotes Andrew McGinn, one of the SRLs who was a signatory to the letter. It also quotes me talking about how polarized the debate over self-representation often is:

“(On the one hand) it’s … ‘Oh, you’re mean to us,’ and (on the other side), ‘Oh, you’re such a pain in the ass,’”….(E)verybody would like this problem to go away. Everybody would like everybody to have a lawyer — self-reps and judges alike — but it’s not (the case)…. so given that reality, can we …try to find our way to a little bit more of an understanding?”

“Going it Alone”: a survey of judges and lawyers views on SRLs

Written by my colleagues Nick Bala and John-Paul Boyd, the Lawyers Weekly article describes the results of a survey of judges and lawyers taken up at a professional conference this summer.

Two thirds of this group (n=176) said that they believed that judges treated SRLs “very fairly.”

The appearance of the Lawyers Weekly survey on the same day as the Open Letter was the subject of many questions, comparisons and bemusement from many of those who communicated with NSRLP this week in response to the publication of the Open Letter.

So do these apparently competing narratives offer insight into the nature of the conversation that needs to take place?

I think the juxtaposition of these two articles is fortunate because it suggests the nature of the dialogue that needs to take place as well as the obstacles that we face in creating genuine understanding between different participants in the legal system.

Looking at life from “both sides now”

The views of judges and lawyers are of obvious importance in this complex and multi-faceted system challenge. The problem is with framing the narrative exclusively from one or other perspective or as an ”us or them” choice.

Our goal should be to ensure that all stakeholder views are included and valued. Historically there has been very little attention paid to the views of system users. This is a chronic imbalance that needs adjusting.

And if we really want to try to work on resolving the crisis of unaffordability of legal services and access to justice in Canada, we have to identify the most credible and relevant data sources for each dimension of the problem.

It seems reasonable to focus on asking each stakeholder group to speak from their own experience and knowledge. For example, it seems especially important to ask SRLs why they are there without counsel, and what their experience is like.

It is also important to ask judges and lawyers what they have learned from their work with SRLs; for example to explain what they do (if anything) differently in the courtroom to enable SRLs to participate.

I think that what these two articles point to is the importance of each group using their own experience and needs – rather than speculation about the other “side” – as the basis of a conversation.

Reactions to the Open Letter from SRLs

We have received many, many messages from SRLs identifying with the sentiments of the Open Letter and expressing genuine and often touching gratitude for the recognition. These messages serve to underscore what is described in the Letter about an absence of acknowledgement about the stress and anxiety experienced by many SRLs and their feeling that they are treated as an annoyance.

Typical of these responses was one former SRL who wrote:

“Reading this (Open Letter) brought me to tears and reminded me of the fragility I hold deep inside having had the experience of self representation… Thank you for giving me the gift of being heard.” (writer’s italics)

Reaction to the Open Letter from judges

I have also had several private conversations this week with judges who care deeply about SRLs. They have much to tell SRLs – about what they are trying to do in their courtrooms, about measures they believe will make the procedure in their court more accessible for SRLs, about system change. But those who are doing this best work are unsure about the protocol of responding to the Open Letter.

Because there has never been a protocol to enable the judiciary to communicate with the public. Maybe it is time for us to develop one.

A plea for dialogue

At the NSRLP we try to ensure that the voice of the (would-be) consumers of legal services are not only heard but also listened to (because we have learned so much by listening to them that is important to the future of justice reform in Canada). We believe that the most powerless people in the system deserve at least a chance to try to open a dialogue with those who are the most powerful.

This is not a competition. If judges and lawyers on the one hand, and SRLs on the other, are telling us different stories, we need to listen to both rather than imagine that one can somehow cancel out, or invalidate, the other.

It has been a week of many different reactions and responses to the Open Letter. One thing is clear – the Letter has touched a nerve. I may be naïve, but I fervently hope we can use this energy to take the debate deeper, include more voices, and make it easier for everyone who has a stake in our justice system to honestly express their view.

 

 

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