Avoiding Conflation: OPCAs and Self-Represented LitigantsNSRLP
The press and the web have been full of references this week to Alberta judge Justice Rooke’s judgment in Meads v Meads. Described as an effort to “take back the legal system” from those who would clog the courts with what Rooke describes as “pseudo legal commercial arguments”, this story has been pitched in many quarters as a general attack on self represented litigants, described as “vexatious litigants”.
However a reading of the almost 200 page judgment – not something that everyone feels like doing, fair enough – discloses a detailed and highly specific analysis of a particular group of self represented litigants – the so-called OPCA’s. So specific in fact that they can be named – Rooke offers an inventory of the self-styled guru’s of the OPCA movement, among them both US and Canadian adherents. The gist of this is that OPCA’s claim that they “stand outside the rules and law” and that “the rules do not apply to them.” This includes paying taxes to government (ah, now this is sounding familiar) as well as other legal responsibilities (for example Mr Meads contended that he has no legal obligation to pay child support). OPCA’s frequently claim that they are subject only to “God’s law” and that the court has no authority over them.
All of which sounds more like the arguments of an extremist religious group or revolutionary army facing a civilian court, or a despot facing the International Criminal Court, than the self represented litigants I have been interviewing for the past 10 months. There is nothing in Rooke’s description of the philosophy of OPCA’s – which seem to be detached from actually achieving any legal outcome, since they do not recognize the legitimacy of the court or the legal system – that resembles the struggles of ordinary men and women who cannot afford, or who have run out of funds, to pay a lawyer to act as their agent in family or civil matters.
Finding themselves forced to represent themselves, these men and women are struggling to resolve disputes over child custody, or support, or access, or to resolve a long-running business conflict, or a dismissal dispute with an employer. As non-lawyers, they often spend hundreds of hours in law libraries and working late into the night at home computers completing the necessary legal documents and trying to develop their legal arguments as best they can. OPCA’s, in contrast, are working on developing “byzantine schemes which more closely resemble the plot of a dark fantasy novel.”
But here’s the problem.
My ongoing study reveals a great deal of impatience, exasperation and intolerance towards self represented litigants among some members of the Bench, the Bar, and court services. And to be fair, the recent deluge of self reps is pretty overwhelming and destabilizing for justice system professionals who have historically dealt with agents (lawyers and para-legals), rather than individual plaintiffs and defendants. At its worst this intolerance produces stories of heavy-handed, unsympathetic and downright rude behaviour directed at some self reps – we are documenting many such sorry tales and they do not show the Canadian legal system in a good light.
This climate raises the risk of the conflation of OPCA’s (whatever you may think about them) with ordinary men and women who are representing themselves in court not because they want to assert a bizarre political or religious ideology but because they have no choice. These are not recreational self represented litigants – they are there out of necessity. More than half my sample have had a lawyer but ran out of funds to pay them – almost all the remainder could not afford a retainer to get started with legal representation. As so many people have told me “I don’t want to do this. I’m not a lawyer. But I have no choice if I want to obtain support/ see my kids/ hold on to my home/ my job/ my livelihood.”
The risk of conflation is all the greater because a few of the issues that Justice Rooke describes with OPCA’s could be part of the experience of an ordinary self rep. For example, Justice Rooke refers to the “strategy” of OPCA’s “ambushing” the courts with new documentation in the course of proceedings – I know from many interviews that some self represented litigants do this completely unintentionally because they do not understand the correct procedure. Again, Rooke writes about the understandable need for a judge to “maintain order and control process in the courtroom”, but this statement could also be used by a exasperated and impatient judge to tell a self represented litigant to “sit down and shut up” (reported by many respondents) despite their best and civil (and often very anxious and nervous) efforts to make their own case. Even the reference to Black’s Law Dictionary – which Justice Rooke describes as the OPCA’s “legal bible” – overlaps with a resource mentioned by some of my interviewees as they search for sources to enable them to understand the law and advance their case.
It is critical that the phenomenon of OPCA’s is not conflated with the large and growing numbers of ordinary men and women now representing themselves in court. In stark contrast to OPCA’s, they do not question the authority and legitimacy of the courts – if they did, they would not be asking the court to give them what they see as justice. They are simply trying to navigate their way through the system as best they can – and some do a very competent job, albeit at considerable time and emotional cost.
There are two distinct dangers here. The first is that those inside the justice system use the Meads judgment – both directly and indirectly – to ridicule and discipline authentic self represented litigants. I do not believe that this is what Justice Rooke intended and I hope that it will not happen.
The second is that exasperated self represented litigants read only the headlines of the Rooke judgment and, believing that this case is about them, shout “hurrah – self reps strike back.” This case is not about them, and they must say so. In fact, the Meads judgment offers an opportunity for ordinary self represented litigants to draw a contrast between OPCA’s and their own authentic motivations and goals, and to deepen our understanding of why ordinary people are coming to the courts without legal representation looking for access to justice.