Federal Election Issues, Self-Represented Litigants, and Fear of the Other

Federal Election Issues, Self-Represented Litigants, and Fear of the Other

Since I have returned to Canada this week from a month “Down Under” (for my reports from Australia see “Access to Justice Down Under” and “Political Pressure and Federal Politics The View From Australia”, I have read and watched a lot of federal election coverage that shouts “fear of the Other”.

“Other” is women wearing niqab, Syrian refugees, and sometimes Canadian Muslims in general.

“Other” is scientists who challenge the government line on climate change, or academics who contest the so-called “Terror Bill” C-51.

“Other” is missing and murdered indigenous women, and First Nations communities without access to clean water.

Once we see another group as having a worldview or an experience very different from our own, it seems pretty easy to distance ourselves from the Other. That’s not us, our subconscious tells us. We don’t need to care about that.

In an election campaign, going one step further and instilling fear of the Other is often highly effective for attracting votes.

It allows politicians to use this simple platform: “Vote for us. We are like you. We shall protect you from the Other.”

Amidst the increasingly frenetic focus this election campaign on demonizing certain groups and behaviours as “un-Canadian”, the complete absence of any mention to to the access to justice crisis is, well, unsurprising. I admit that when the writ was first dropped, I was optimistic and naïve enough to imagine that we could ask politicians questions and have at least some informed debate about this issue (Getting A2J Onto the Political Agenda in the Federal Election)…but oh well.

But all this focus on the Other has made me wonder – can we understand at least part of the response to the presence of so many SRLs in the justice system in the same way? Are SRLs another example of the Other – in this case, within the Canadian legal system and among justice system insiders?

The narrative is the same – those who are the Other are not worthy of our empathy and effort, they are too different to be one of us, and their difference makes them threatening to “our way of life” (read: the way the legal system has worked in the past using lawyers as agents).

Over the past two years, we have definitely made progress towards a more complex and informed understanding of self-representation. In some quarters there is now a clear rejection of the primitive stereotype of SRLs as “nutters”, bent on disrupting the justice system.

But despite this progress, a pervasive, engrained, and essentially negative perception of the “SRL as Other” continues.

  • When a lawyer introduces a CLE video of SRLs by talking about how much of a “problem” it is that people “know more” about the legal system these days
  • When a judge tells me over dinner that “this system is tried and trusted, it has worked for centuries and it will go on working now” in response to a question about what adjustments in practice the Bench might make in light of the volume of SRLs appearing in court
  • When a lawyer says “The problem with SRLs is that they do not understand how to present evidence!” and the room of lawyers snickers softly (question: if you have paid a lot of your own money for three years of legal education, why would you then deride someone because they didn’t go to law school and therefore do not know what you do? Wouldn’t you say instead, “I’m glad I spent that money because I purchased legal expertise”?)
  • When a professional organization advertises a talk about SRLs as focusing on “the tribulations” of working with SRLs
  • When lawyers console one another that the reason that they find SRLs (and apparently many of their clients) difficult to work with is because these laypeople all have (inchoately and vaguely defined) “personality disorders” – thereby assigning them to the “Other” category, and meaning that lawyers cannot possibly be expected to help them.

Let’s not fall into the “Other” trap. Understanding the world as populated by “people like us” and “the Other” – whether Syrian refugees, SRLs or climate change scientists – is simplistic and primitive. It is the equivalent of a person characterizing the other side in a conflict as crazy, evil or stupid (Mayer, 2012). A useful “crutch”, but absolutely no help whatsoever in advancing understanding or realistic solutions.

What is more, SRLs are not even accurately described as “Other”. They are all of us now. Everyone knows people who have represented themselves because they cannot afford a lawyer. Some of them are lawyers, for goodness sakes (see the Final Report of the National SRL Study at page 40:) who say that they cannot “afford themselves”.

Let’s avoid falling into the us-vs-them trap that politicians set for us this federal election. Reject the temptation to snort derisively, titter condescendingly, or even be downright hostile towards the Other – however different.

And whether they are refugees, climate scientists, or SRLs.

 

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Comments (6)

  • bcaptijn Reply

    This is excellent insight. Thank you Dr. Julie Macfarlane, for explaining the consumer point of view to members of your profession. SRLs derve respect and better access to affordable justice – not based on the hourly billing system.
    What may dramatically effect lawyers’ attitudes is the advent of ‘disruptive technologies’ in the legal profession, and ‘off-shoring’ of legal advice to countries where trained lawyers can offer advice for lower fees.
    I just finished reading Susskind’s ‘The End of Lawyers?’. If the legal profession won’t modernize its way of providing services to the average citizen, then advances in technology will do it for them.
    There is an enormous market of middle class citizens out there who need legal services at affordable rates, but the big corporate clients, the only ones able to pay hourly fees, seem to be perpetuating a fee system which doesn”t work for the average citizen.

    B. Captijn
    Volunteer Consumer Advocate
    http://www.consumersreformtarion.com

    October 6, 2015 at 1:43 pm
    • evert-jan Steen Reply

      Concurring with bcaptijn’s comments, I just finished reading Ted Rodell’s 1939 brilliantly written ‘Woe Unto You Lawyers’…Nothing has changed, as we continue to slide further in to a fear-based society, more and more run by global conglomerates who are beginning to ride shot-gun over our Nation States! The only opportunity now lies with the potential power of the masses through the Internet. To show up the systems for what they really are, and cut ‘them’ off at the pass! Strength in numbers > NOW! Working from the Inside > Out! There is little time left. Enough is Enough!
      Brilliant piece Dr. Macfarlane….

      October 6, 2015 at 3:52 pm
  • Allen Reply

    I wonder what category we should put those trained lawyers whose competence is way less than the worst SRL? And the judges? I have met them and I am embarrassed. I had a lawyer recently who gave my file to his out of work brother. The brother is the laziest and most sorry excuse of a lawyer I have ever seen. They tried to sell me out including going to questioning and not ask for a single undertaking while giving the other side every undertaking they asked for. It was a simple case where in I was rear-ended and got injured. They spent almost $10,000 to get medical reports and such after which they asked for not enough in my opinion but a half decent amount anyways. The other lawyer laughed at them and offered one eighth of what they asked for (that is before they went to questioning) After just sitting on my file a whole year and the other lawyer threatening to go to court for a procedural order they and actually did, they withdrew as my lawyer but not before trying to get me to accept the i/8th offer that they rejected at the outset.The other lawyer then offered like 3.5% of what they asked for. Now I have to go to court on my own with a case they messed up and I am claiming on their insurance with a law society that seems not too well behaved

    The law profession is on route to self destruction so give it time. They will implode

    October 6, 2015 at 4:08 pm
  • Nic Reply

    Dr.Macfarlane, a superb and insightful analysis not only of the times and the legal system but of human nature . As in all walks of life, the ideal would be the ideal ! and some, like you and thankfully so, are on the path of communicating the ideal for a better understanding and management of life ‘s trials . But as in all walks of life, there will be Napoleons, Stalins , etc and the likes surging in whatever type of community society, association, nation there exists and survival of the fittest rules . Thanks for your efforts in advocating , educating, prompting, informing . Given the times, only when the SRL becomes ” fitter” and system judges
    ” NEED ” to account for their decisions without simply uttering ” we are not here to provide advice !!!!” ( even when it was not requested ) will Goliath perhaps fight David on a more level playing field and names will change in history.

    October 6, 2015 at 6:09 pm
  • shmatala, Esq. Reply

    Reblogged this on Writ of Rags and commented:
    Great article on self represented litigants as the other and the Legal Ego. #A2J #whataboutalex

    October 12, 2015 at 12:18 pm
  • Wait a Minute: Has the Federal Election Campaign Been About Access to Justice All Along? | The National Self-Represented Litigants Project Reply

    […] that blog I compared the characterization – and demonization – of the “Other” which has been so dominant in this election campaign with the way that many see SRLs . This blog […]

    October 15, 2015 at 5:09 pm

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