Chasing Down the Data: How Doubtful Assertions about SRLs Sometimes Become “Facts”

As a researcher, one of the things I have noticed over the years is the tendency for an anecdote to morph into a definitive research finding – and to sometimes take on a life of its own, repeated over and over. Similarly, “canned” references to a research study which simplify and even distort the original study findings in order to reinforce a particular argument or perspective.

Why This Matters

Who cares? Maybe you are already switching off assuming that this blog is going to be all about geeky data analysis (OK, it is), and why would you be interested in that?

Why care? Because one charateristic of these often-repeated myths (because this is what they are) is our desire to rely on statements that fit with own pre-conceived ideas about an issue, rather than challenge its veracity.

The statement I went chasing down this week is a perfect example of this phenomenon. The statement – that “… SRLs who actually prefer not to hire a lawyer are a substantial minority…” – is starting to be repeated in a number of places.

“A substantial minority”? Like, almost 50%?

This drew my immediate attention because:

• This assertion conflicts with the data gathered at NSRLP
• Stating that a “signficant minority” of SRLs are choosing to represent themselves because they dislike lawyers would – if true – reinforce the pervasive stereotype that draws hostility towards SRLs
• This assertion is coupled with claims that the same “substantial minority” distrust and even despise lawyers. This reinforces the stereotype of rage that is often associated with SRLs
• Finally, this framing may take the burden off lawyers and others in the justice system to respond to the SRL phenomenon– and places it squarely back on SRLs (also know as the “blame the victim” approach).

So I wanted to find out whether this repeated assertion had any credible empirical basis.

Whether or not you are a data geek, come with me on my research adventure. What I discovered is pretty interesting.

It is the story of how one pervasive and influential myth has entered the discourse.

The 7 Types of SRLs

Our story begins with the typology of 7 types of SRLs, usually attributed to the Civil Justice Forum and reproduced in short form below.

1. People with a lack of social resources
2. Low income SRLs with some social resources
3. SRLs living with social barriers that interfere with accessing justice
4. SRLs who are unable to find a lawyer
5. SRLs who were previously represented but who are no longer represented
6. SRLs in cases where representation is said not to be necessary
7. SRLs who could access representation but prefer to self-represent

The Typology is a useful way of demonstrating that SRLs have many different and often overlapping motivations.

It originated in a research project conducted by the original Canadian Forum on Civil Justice – then based at the University of Alberta Law School – and built off data collected for the Alberta SRL Mapping Project by Mary Stratton ( http://cfcj-fcjc.org/docs/2007/mapping-en.pdf)

SRLs who prefer to self-represent

Type 7 of the typology was originally described in the SRL Mapping Project (2007) and again in the Alberta Legal Services Mapping Project (http://www.cfcj-fcjc.org/sites/default/files/docs/2011/mapping-final-en.pdf) as “SRLs who could access representation but prefer to self-represent (usually well-educated people who distrust the legal profession)….” (page 18, 2007).

This of course is the group that many judges and lawyers fixate on, and who provide the best ammunition for those who distill the SRL phenomenon into a group of lawyer-bashing nutbars.

In her original paper, Mary Stratton notes that there are multiple and overlapping reasons for self-representation (which we also saw in the 2013 National Study). For example, I had a lawyer but I ran out of money and now I don’t feel like that was good value-for-money; or, I think I can handle this myself because there are lots of Internet resources and I prefer to handle it myself than have to tell the story to someone else.

And so she advises:

“For the purposes of this project, those described as preferring not to have a lawyer, is confined to SRLs with no other contributing reasons.” (my italics)

In interviews, we have found that it is commonplace for a SRL to begin – before they are fully comfortable sharing – by saying that they prefer to be their own lawyer, because that way they have full control over their case, and perhaps reference an earlier bad experience with a lawyer – and only later in the interview as the story comes out is it clear that financial imperatives were the most significant reason for this decision.

As Jennifer Muller, a former SRL, often reminds us – many SRLs feel shame at not being able to afford to pay / continue to pay for legal services.

Reserving Type 7 for those SRLs who really prefer to go it alone, and are not being driven there because of lack of resources or other factors in the list above, is a sensible caveat, It allows for the more accurate identification of this group and avoid its contamination by others who reference their “preference” as a defiant front for financial or other exigencies. As we shall see, however, Stratton’s careful methodology does not seem to have made it into subsequent applications of the Typology.

Stratton’s footnote goes on to state that: “Members of the judiciary report this (limited as above) group of SRLs to be particularly time consuming and difficult to deal with, but estimate that they account for 5% or less of all SRLs who appear before them.” (my italics)

SRLs who prefer to self-represent: growing the legend

It was a small adapatation of Type 7 that caught my eye this week. In their White Paper for the Association of Canadian Court Administrators (Trevor C.W. Farrow, et al, Addressing the Needs of Self Represented Litigants in the Canadian Justice System Association of Canadian Court Administrators, 2012) the authors describe Type 7 SRLs (at page 16) as follows:

“SRLs who could access representation but prefer to self-represent (usually well-educated people who distrust the legal profession). SRLs in this category have been found to be a significant minority of the overall SRL population.” (my italics)

The words “significant minority” in the ACCA report are new – that is, they do not appear in Stratton’s original typology. This would be an important new claim, for the reasons I set out in the introduction. My assumption was that there would be additional data to support this, and I wanted to find it. Moreover, I was starting to see the same claim repeated elsewhere.

In the ACCA paper, the phrase “significant minority” is referenced to two sources. One is Lee Stuesser’s “Dealing with the Unrepresented Litigant” (paper presented at Canadian Association of Provincial Court Judges Annual Conference in Charlottetown, Prince Edward Island, 2002). The other is Claude Duchesnay’s “Se Representer Seul” (2002) 34(13) Barreau (http://www.barreau.qc.ca/publications/journal/vol34/no13/seul.html). Both papers were written before the first iteration of the SRL Typology appeared in 2007.

Tracking down the sources

So I went looking in these papers for empirical data to support the addition of the words “significant minority”, which would suggest that the numbers of those who actually prefer to self-represent was far higher than Stratton’s anecdotal 5%.

There was no reference to a “significant minority” who prefer self-represent in the Duchesnay paper (my thanks to John Manwaring), which focuses on “quarrelsome” or vexatious litigants in Quebec.

So I moved on to investigate the Stuesser paper. I could not find it on the Net, and so I wrote and asked Dean Stuesser (the founding Dean at Lakehead) if he had a copy he would share with me. He graciously provided a paper that if not the exact text he used that day, covers the same ground. Here I found a reference to the “substantial minority” point.

It is sourced to John Dewar, Barry Smith and Cate Banks, Litigants in Person in the Family Court of Australia: A Report to the Family Court of Australia, Research Paper No. 20 (1999) (a second study mentioned by Stuesser by the American Judicature Society is not on point). In the executive summary of the Australian study I finally found the “substantial minority” reference.

“Most litigants in person on the Family Court of Australia do not have legal representation because they cannot afford it, although a significant minority said that they did not need, or did not want, to be represented by a lawyer.”

The Australian study interviewed a total 49 SRLs for 15-20 minutes each. Slightly more than 75% said they were representing themselves because they could not afford a lawyer and/or had been turned down for legal aid. The remainder said that they “did not need or want (a lawyer)”.

No further explanation of “need” was given (note that in the Typology) this motivation would place these individuals in Type 6, not 7). 

Unpacking that “significant minority” claim

So let’s recap what we have learned so far about the empirical basis for the assertion that SRLS who prefer to represent themselves are a “significant minority”.

In the Australian study, slightly less than 25% of 49 SRLs who participated in short interviews conducted in 1999 said that they prefer to represent themselves (and are often hostile towards the legal profession). This could be termed a “significant minority”. However this group appears to include Type 6 SRLs (above). In addition we have no way of knowing if this group included others with mixed motivations, including financial constraints.

And the data source for the “substantial minority” assertion is 12 (yes, twelve) Australians appearing in Family Court in 1999.

Also cited in support of the “significant minority” claim in the ACCA paper is the Law Commission of Ontario’s excellent “Increasing Access to Family Justice through Comprehensive Entry Points and Inclusivity.”. However there is no new data here – only a reference back to the ACCA paper on this point. We sometimes call this circular footnoting, where each paper refers to the other as a source.

Although not cited by the ACCA paper, another place where the assertion appears that a “significant minority” of SRLs are self-represented by choice in Rachel Birnbaum and Nicolas Bala’s useful and important “Experiences of Ontario Family Litigants with Self-Representation”.

Their 2011/12 survey in six Ontario courthouses asked 81 SRLs to rank the #1 reason for self-representing during a 20 minute interview with a law student. In addition to financial reasons, eight other reasons are given as the #1 reason, most of them representing around 5% of the sample.

Birnbaum & Bala report that “A significant minority…report that they have chosen not to have representation, and lack of financial resources was not the prime reason for this.” While numerically accurate, this statement does not account for the problem of forced choice where there are multiple and overlapping reasons. Perhaps equally important, in our experience at NSRLP a short interview may not allow for full comfort in disclosing financial exigencies (remember the “shame” issue).

Challenging the comfortable myths

The widespread belief that SRLs preferred not to have a lawyer represent them was the reason that we asked each of the original 253 SRLs in the 2013 National study (and the subsequent more than 100 who have completed intake forms) to tell us whether they have had a past experience (before this case) with a lawyer, and how that went. The picture that has emerged is that there is no correlation between a good or bad past experience with a lawyer, and a decision to hire a lawyer in this matter (Final Report, pages 35-36). Once again, money and their most recent experience – rather than an entrenched antagonism towards lawyers in general – was the operative factor.

At the same time, we should be realistic about the impact of the experience of paying for a lawyer, followed by a frustrating and often distressing period of self-representation. In a footnote to Type 7 in her original 2007 report, Mary Stratton points out that “…some people perceived to be in this group of SRLs have legitimate reason to distrust the legal process.”

It is extremely important that we better understand the complex and multi-layered motivations and experiences of SRLs. If we do not, and in particular if we cling to poorly substantiated assertions that have taken on the appearance of legitimacy through frequent repetition, we shall never have the data we need to properly analyze and to solve the A2J crisis.