Denial Narratives: 5 Ways to Respond to the SRL Phenomenon that will Move Us Backwards, not ForwardsNSRLP
I try to be optimistic and upbeat in this blog.
I am optimistic by nature, and I believe that although the SRL Phenomenon faces us with a dizzying array of challenges – whether as lawyers, judges, policymakers, court staff or a member of the public – we can and shall find ways for the justice system can develop a realistic contemporary approach to what we used to call access to justice.
However this morning I am felling pretty beat up. Not for the first time – in fact this has happened to me a dozen or more times now – I spoke about the empirical facts of the SRL Phenomenon last night to an audience that included a few – just a few, but an extremely vocal few – who thought that the appropriate response of the private Bar to this challenge was to shoot the messenger.
So today I am going to share with you my more pessimistic side by describing 5 consistent refrains I have heard in the past year from some members of the Bar about the SRL phenomenon. Note: I do not believe these perspectives reflect the views of the majority of lawyers, but they get an awful lot of air-time at the events at which I speak. And only occasionally are they directly challenged (more of this in a moment).
#1 You are just lawyer-bashing. Raising the possibility that lawyers might even consider providing legal services any differently than their present model – and pointing out that most Canadians cannot afford full-representation, traditional retainers and hourly fees for anything other than short-term emergency assistance – is labeled “lawyer-bashing”.
I was once told that speaking about empirical data showing that the public is interested in having lawyers help them but need alternative structures to make their services affordable was “disloyal”. In this M.O., anything you suggest I do differently is ruled out of order.
Rather like calling someone a racist or a sexist, once the toxic accusation of lawyer-bashing has been made, any hope for a grounded discussion is over – because it is absolutely forbidden to lawyer bash. There appears to be no distinction between constructive criticism and disrespect.
#2 It’s not our problem – government needs to step up and restore/increase Legal Aid funding. In reality, as professor and legal economist Gillian Hadfield stated when she gave testimony to the New York Task Force on Access to Justice in 2010, “The need for help – dare I say the demand for help – far, far outstrips what can reasonably be met by any publicly funded and charitable forms of supply.”
Just do the math (not my strong suit I admit but I am following Hadfield’s formula). The Ontario Civil Legal Needs Study reported that among low and middle-income families (defined as those with an income under $75,000, and the same group that generally cannot afford private legal services), 35% had had a legal problem in the past 3 years. Assuming that there are approximately 1 million such households in Ontario, if each of these households were given just one hour of legal services at $200 (bargain basement pricing) the cost to the province would $200 million. For just one hour for each household. Enough said?
#3 The only SRLs worth bothering about are the ones with really good legal cases. The rest are just a waste of space and should not concern any member of the profession.
I find this to be an especially odd narrative, but I have heard it on a number of occasions. I am sometimes asked “how many of the people you interviewed had good legal cases?” Despite the fact that lawyers often take on cases where the chances of success are speculative at best and minimal at worst, the same latitude apparently does not seem to apply to the self-represented.
The implication is that lawyers should be the gatekeepers of who is allowed into the justice system and if you are not their client, be prepared to make a really good case for your right to be there. This writes off a large number of those seeking access to justice who feel that they have genuine grievances and have no other ideas or resources to resolve their problem.
#4 Impose cost consequences on SRLs and expand the powers of judges in relation to “vexatious litigants”. In Ontario, new rules are about to give deputy judges in small claims court greater powers to declare an individual a vexatious litigant and exclude them from the courtoom. There has been some discussion at policy levels in Ontario about imposing punitive cost consequences on family SRLs to discourage them from coming to court without a lawyer.
In the face of growing public dissatisfaction with the justice system in general and lawyers in particular, this narrative assumes that imposing more “controls” will resolve the problem. Presumably all the SRLs who cannot afford lawyers will go home and never come back to the courthouse again! Or find some money they had forgotten they had and retain counsel! Problem solved!
#5 Sell the SUV and get a lawyer. Some lawyers are unable to understand why a member of the public would not place the value of legal services above all other expenditures. After all, the data shows that most people who represent themselves have a horrible time – so why not pay for a lawyer? Can’t afford one? Sell the SUV.
This narrative reveals a lamentable disconnect with the reality of contemporary consumerism. We live in an age where people will do almost anything to reduce costs where they believe they can do-it-themselves – from selling their own home to investing their own savings. Such is the extent of the “disintermediation” self-help phenomenon that people behave this way even where there is no monetary cost involved – for example they will self-diagnose on the Internet and go to their physician just for the prescription they believe that they need.
Its pretty unlikely that anyone is going to sell the SUV to pay for a lawyer – they are also disinclined to run through their kid’s college fund, their savings for that long-anticipated vacation, or run up more debt on their credit cards.
These 5 narratives are not based on empirical facts, they will not work, and most importantly, they confirm the suspicion of a wide swath of the general public that we are self-serving and uninterested in access to justice by ordinary people.
Can we please stop repeating them?
And when you next hear one or more of these “denial narratives” being rolled out by a colleague in the legal profession, please consider challenging them – politely, with reference to the empirical data – so that I can feel less alone the next time I stand up in front a legal audience afraid of change?