Written by NSRLP Advisory Board Member Jeff Rose-Martland; originally published on Slaw, Canada’s online legal magazine.
[Jeff Rose-Martland is a writer and SRL from St. John’s, Newfoundland, and member of NSRLP’s Advisory Board.]
Envision a self-represented litigant. Did you get a picture of someone in court, poorly dressed, who doesn’t know what they are doing? I see that, and I am an SRL. The more-accurate mental image of a person at their dining table struggling with legal documents until the wee hours rarely comes to mind. Possibly because it’s draining to even consider, let alone do. In point of fact, a courtroom may not even be involved; there are a variety of circumstances that will turn one into self-rep.
If asked when I became an SRL, I respond with my most recent matters. But recent discussions have caused me to realize that I’ve actually been doing this for most of my adult life. Because we focus on the Self-Rep-In-The-Courtroom, we forget all the other circumstances where DIY-lawyering happens. All those boards, tribunals, appeals boards, and the lesser, limited jurisdiction, courts, where supposedly lawyers aren’t used: small claims, traffic, bylaw/ticket offences, etc. I certainly forgot all of that. When I stopped to consider those situations, I discovered I’ve actually been a self-represented litigant for about 30 years.
My first go was in criminal court. It wasn’t anything serious: I was facing Possession of Alcohol by a Minor. I’d been 18 rather than the required 19. I didn’t even speak to a lawyer, let alone retain one. I didn’t see the point: I’d been carrying a half-case of beer. No point in dragging that experience out. I plead guilty, accepted my fine, and got on with life. It was an eye-blink of time, decades ago, and so trivial that I didn’t even think about it making me an SRL.
Sometimes government can make you represent yourself. That happened when I appealed a student loan decision back-when; I was told I wasn’t permitted to have a lawyer when I appeared at the tribunal. Which implies a less formal, more easygoing affair. Except that the tribunal consisted of a panel of a dozen or so government lawyers. This unfairness was further magnified by the board demanding to know the legal grounds for my appeal, legislation and precedent. What??? My half-complete electronics program hardly prepared me for that. For that matter, I’m pretty sure I couldn’t have even tracked down the legislation, as the government of the time tended to refuse to hand out information to private individuals. Obviously, the board ruled there were no grounds for any appeal and I was contemptuously dismissed. Arrogant glares chased me from the room.
Traffic Court is intended to be mostly lawyerless. After all, the fines and charges are generally small. I’d successfully challenged several traffic and parking tickets, getting them dropped through a pre-trial conversation with Crown counsel. But one time, the Crown wouldn’t speak with me, and I found myself suddenly in front of the Court, with no preparation. But I was certain of my case, that logically I had the right to block my own driveway, especially as I had been loading my vehicle. The judge dismissed my opening statement for being an argument and not in compliance with The Rules. The Crown called its witness, the traffic enforcement officer, who confirmed the ticket. I attempted to question him, and the Crown immediately objected, “Your honour, clearly the Defendant has no familiarity with Court procedure or etiquette, and the Crown requests that the Defendant be barred from further wasting the Courts time.” Objection sustained, case immediately decided against me. Yes, the Crown was correct, I didn’t know what to do in a courtroom. Still, I felt hard done by. I hadn’t had any opportunity to present my side, and I’d been treated pretty offensively. Once again, I felt the sting of my lack of a law degree, and the contempt of those who do.
I need to point out that both of these circumstances were decades ago, and, compared to then, the legal profession has improved its attitude as regards we-without-lawyers. What still triggers my outrage, however, is that I feel I lost, not on facts or law, but simply because I didn’t have a lawyer, when I’d understood that I couldn’t have one and didn’t need one.
Not all my experiences have been so humiliating, nor did I always lose.
There’s the Employment Insurance Appeal Board. As with the student loan appeal, I’d been told I couldn’t have a lawyer. The board was two lawyers and a civil servant. I successfully appealed an EI decision, even though I openly admitted that I had no grounds under the Act. Logic on my part, and compassion on theirs, carried me through. Looking back as an SRL, it wasn’t just my success that was important. I was treated like an equal, like I mattered, and that made a huge difference.
It’s interesting to note that even when lawyers are barred from a process, they can still be snuck in. A couple decades ago, I filed a complaint with the Labour Board over being terminated when I tried to return from sick leave. After preliminaries, a settlement conference was arranged with a Labour Board mediator. Both sides were told, in no uncertain terms, that this was for the parties only, and counsel was not permitted.
Imagine then my surprise when my former employer turned up with a lawyer, complete with business card listing the correct post-nominals. I informed the chair that I’d never met this guy during my employment and that he was a lawyer. He declared he’d never passed the bar; he was a labour relations consultant on contract. He may have a law degree and training, but he wasn’t a lawyer. He also wasn’t counsel because, under terms of his contract, he was an employee, a HR manager. The Chair wasn’t impressed, but couldn’t eject him. The conference continued and I had to cope with this guy; my former bosses didn’t say a word. That’s completely contrary to the Labour Board process, which is intended to get employer and employee to work things out informally. Naturally, we failed to reach agreement.
I moved for arbitration. I tried to get a lawyer, but no one was interested in taking my case on a cost-recovery basis. Having read the documents I’d already filed, two lawyers told me I seemed quite capable of representing myself and encouraged me to do so. I had become more confident, and legislation was now available online, so I took up my own cause.
I arrived a bit early for the hearing. So had the arbitrator, a retired judge. He was quite friendly and he took the time to explain that the process was less formal than court, and that he’d make sure both sides were heard. We chatted a bit more about nothing much until the other party arrived: my boss, my manager, and their lawyer.
The lawyer was dragging a wheeled case with an encyclopedia’s worth of dead trees piled on top. It took him four arm-loads to get it all on the table. I looked at the arbitrator, who was frowning and glaring at the lawyer. As the stack of paper grew thumpingly on the table, the arbitrator spoke, “You should know better! This isn’t court and I’m not required, nor inclined, to read all that.” The lawyer shrugged and defiantly responded, “I guess we’ll see.”The lawyer then moved for dismissal of the case and started reaching for documents. The arbitrator said he was deferring judgement on the motion. The lawyer objected. The judge reminded him that this wasn’t court, and he’d consider it later. The lawyer started to complain more and the judge suggested the lawyer hold his tongue, with a look that strongly hinted that he could lose the case right then. I was trying hard not to giggle. It felt good to know there are people who could put lawyers in their place.
The arbitrator let me have plenty of leeway with my questions, and asked me questions to flesh out my position. He was patient and generous… with me. Every time the other party got to speak, the lawyer re-stated his call for dismissal. After a while, even his clients were getting annoyed with this. The arbitrator repeatedly said the hearing would proceed, regardless, and he would decide that part after the fact.
For specific legislative issues, and because my employer had lots of experience pulling shell games to dismiss with impunity, the call for dismissal did succeed and I lost the case. But I didn’t feel bad about it then, and still don’t. That’s down to the way I was treated by the arbitrator: I was heard, I got to state my position, I was permitted to question my former employer at length. Not being a lawyer wasn’t held against me. Even though the arbitrator decided against me, I still respect the way he treated me: with respect.
That was also the situation in Family Court.
As with other jurisdictions, increasing numbers of people are appearing unrepresented in Newfoundland & Labrador Family Court. The system was forced to adapt. Provincial Rules have been updated, forms made clear and accessible, and even the culture has shifted towards a service model. Judges are active in proceedings, explaining procedures and tests, and asking probing questions, so they can get the information needed to make decisions. Myself and the other party were both self-representing, and were equally treated with respect. That system has adjusted to fit us; something many other systems are trying to avoid.
Until very recently, I wouldn’t even have said what I was doing was DIY lawyering. Not until my recent, ongoing, legal problems. I didn’t have a term to describe what I was doing until I came across the National Self-Represented Litigants Project. My involvement with the NSRLP since 2016, and more generally with access to justice issues, has made me realize how wide-ranging self-reps are. SRLs don’t come from hearings or decisions or even initial filings. You become a self-rep when you wind up defending you rights, especially the right to be heard.
I never set out to be my own lawyer. There was never a point where I decided to explore the legal world for my own edification, to have a go at have-a-go-lawyering, to try hammering down the doors of justice armed only with attitude and a foam bat. Every time I have been my own counsel, I was compelled by circumstance. Sometimes I was a Respondent-Defendant. Other times, I was just trying to get fair treatment. In all these cases, getting a lawyer wasn’t possible. Self-representation was the only viable option, poor though it is.
Looking back now, I’ve been at this for a very long time – three decades. There’s probably many, many people out there who have likewise been unwitting self-reps. If you’ve ever used any of the quasi-judicial systems of boards and appeals; appeared before Traffic, Small Claims, Tax or other lower courts; participated in a settlement conferences or arbitration – even where lawyers are not permitted – then you, too, have been a Self-Rep – check your closet for the t-shirt.
What a fabulous article! And so true! I had never looked at my life in this way, yet I feel the same, except mine ended in a Discovery Hearing for A medical Malpractice suit in BC. I help friends when I can, and when the situation is just wrong, I still try to make things fair. Thank you for writing this.
Well said. Sometimes we miss the smaller but very important basis of what we face as bigger issues. An important take away for me is the SRL’s satisfaction after an encounter in court. Many judges think we are un reasonable and impossible to please but all the court has to do is make it seem fair and/or make us understand how they arrive at their decision. Disrespecting us us, ridiculing us, defaming us and punishing us, will only lead to appeals and more appeals and our determination to defend our right to be heard comes what may
I had actually forgotten about my own employment situation where my employer tried to fire me with cause and I won that and they had to pay me out. It’s all good because I ended up getting a better job with a good employer and just celebrated my 25th anniversary there.
I appreciate what NSRLP has done so far but still more needs to be done. Despite winning both trials against my ex while self represented, I have still ended up overpaying dramatically – my guess is $100,000 overpayment in child support plus costs I should have received when winning two trials. It would have been much worse if I hadn’t gone to trial twice
My greatest moment in court was when I told a judge to set trial and he told he I would lose. I ignored his advice and won.
The biggest problem in court is the complete and total lack of understanding of financial information by lawyers and judges. They need to be trained by proper financial people such as accountants like myself.
I have again offered to train them as I replied to NSRLP’s email “New lawyers learning from self-reps”. I hope they take me up on my offer or nothing will ever change in family court. Lawyers and judges have to admit that they are the problem not self-reps. SRL’s only exist because lawyers are not doing a good job and are wasting the courts and their clients time and money.
I sincerely hope they take me up on my offer. I know the problem and I know how to fix it.
The question is – Will they finally listen? So far they haven’t but I am giving it one last shot.
Dear Mr. Rose-Martland,
I have mixed emotions about your story. One the one hand the system may be changing to recognize SRL’s. On the other hand, SRL’s who have been harmed by the opponent, can hire smart lawyers to win, no matter how unethical. And that still hurts when the complainant SRL has lost a career, lost income for life, and is now severely and permanently disabled.
Imagine standing up in court and stuttering oneself into a full blown panic attack that does not resolve for weeks.
Imagine the smart lawyer using that presentation to further humiliate the clearly impaired complainant. Implying she is vexatious rather than damaged.
Now imagine asking the court for accommodation for disability. It was like they had no idea what I was talking about. Denied.
I never wanted such an employment mess. I am not a SRL. I cannot identify the process, forms, evidence, strategy, and have become so sensitized to court being humiliating, that I can no longer participate. The health consequences are deadly for me (unsafe spike in blood pressure from stress).
Yes, I feel hopeless. Somehow, at age 62, I have to plan the rest of my life in poverty because the courts insist on rules I cannot comprehend. Don’t get me started on $1,100 an hour smart lawyers. Its simply no contest.
If anyone is compelled to be a SRL, think hard and fast about the time and energy the courts will rob you of. Then ask, is the injustice worth it?
I have been at this for 9 years, and I say it is.
Best to you as a director. Keep at it, you have your healthy brain to help those who cannot.
Lorelei Rogers, former RN, MA, EdD, and board certified Advanced Practice Holistic Nurse.
Thank you Jeff for your article. I read these at part of my attempt at healing and catharsis from my divorce trial, where the extreme bias and unfair judgments have me scarred so badly.
In my case interestingly, the opposing counsel argued that I always wanted to be a lawyer! I found this so strange, as until that point in my life I had believed that the courts were there to help people who could not obtain legal counsel fairly access justice. How could this be a beneficial strategy?
I had provided evidence of the three lawyers who previously represented me all withdrawing, evidence of appealing the Board of Legal Aid. I showed evidence that 3 weeks before my trial I finally found a firm in Ontario who was willing, but demanded full payment the next day of $123K, which I did not have. I argued that I never wanted to be an SRL because I’m not a lawyer, I’m disabled, and that matters of my children are far too important to risk.
Of the Judge’s absurd and financially crippling decisions, the worse were his conclusions that I “always wanted to self-represent and I knew the risks”! How could he arrive at this conclusion! Was it because I wore a three piece suit and “exception language skills”. What were the risks that he claims I knew of being an SRL? How did this impact his decisions?
Further insult was the Judge’s conclusion that I was not disabled, despite all of my IME opinions. His reason was, of course, that I demonstrated as an SRL that I was capable of work, and imputed an income of $90K. He also asserted that “any costs to an SLR are negligible”. You could be awarded costs but the amount would always be zero.
Out of characters – Thanks Jeff
KNEW THE RISKS!!!! that is the attitude i have seen as well. There are not supposed to be risks,, simply for going to court. If there are indeed rules, and everyone were following them, That might have a chance at fairness. NO ONE goes to court,, prepared to be treated with contempt,, lied to ,, have evidence frauded, hidden, and the court itself,, name calling and ignoring the rules of court. NO ONE!! That is however, what actually happened to me, and from what i can gather, quite a few others. The court is itself,, corrupt, So going to the court, and expecting justice, is just not possible
Interesting Article from a Self – Rep who is a damn good writer.
In my case pursuing my claim (Defamation & Breach of Contract) in Alberta’s superior court against a resourceful non profit fully represented by a top notch law firm.
As a self represented I was facing other problem that English is not my mother tongue, anyhow made my way all the way up to trial after spending 3 years, attending many interlocutory applications, appeals and conferences.
I hope one day I will be able to write something about my experience with pride.
my case was a paternity suit, i simply kept asking for an examination of the evidence, full disclosure of it as well. I said,, it is frauded, i would like a opportunity to examine the work. There was nothing unusual,, or stridently appalling about it. It was just about the rights of a child. Since they could not get rid of me based on how my case had no merit, They went after me personally. It was said in open court, that i probably didn;t even know who my childs father was. The judge said nothing about being spoken about like this in open court. I had no opportunity to have the evidence examined, The opposition lawyer, upon being served with proper 2 week notice of an examination date being set. immediately transferred out the file to another district, WITHOUT NOTICE TO ME. and had the case dismissed with costs, When i refiled, and showed proof of the booked examination, the court ignored me, and declared me vexatious, for having the nerve to refile. The lack of respect i was shown was appalling. The rights of my child meant nothing. I was self representing, because lawyers repeatedly took my file,, and did nothing. I repeatedly asked, order the file from the lab. After the third lawyer disregarding my requests for the file. I had no choice BUT to self represent.
Thanks for all your comments!
I didn’t have any particular point in mind when I wrote this. It just came from the realization that I’ve been a self-rep a lot, without even realizing. As I wrote, it occurred to me that there’s probably a lot of people with similar experiences, not realizing that they, too, are SRLs. If there’s any underlying message in this piece, it’s just that.
I am aware of how nasty and unfair and unjust the system is for we-without-lawyers, including all the misconceptions the professionals have about our motivations. There’s only one path to resolving that, and it involves SRLs speaking up collectively. As we’ve all experienced, our individual voices may be dismissed. But our collective voices cannot be ignored nor our total experiences dismissed. Especially if we talk to the public. We all how the public thinks The System works – that was our biggest shock. Our experiences will likewise shock the public. That is when real changes will happen, when the public gets involved.
Which perhaps is more to the point of what I wrote: YOU may have been a self-rep, or may be a self-rep now or in the future, so you should pay attention to what happens in our legal system.
I had a somewhat similar thought that I’m still ruminating on: it is to do with the proliferation of both laws (aka rules) and the increasing circumstances that call for more laws. I think most lawyers will agree that they are challenged to keep up. So then how can those of us with no legal training? I’ve had first-hand experience with administrative law, which calls for mastering a particularly difficult dialect of legalese.
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In contrast to which is the body of laws dealing with traffic. Maybe I’m a little more sensitive to this because I was employed as a driver by a charter bus firm – until the pandemic shut down those businesses. I live in downtown Vancouver and see in what is now happening on the streets a growing problem that is not being addressed: the proliferation of electrically powered or assisted “personal transportation” devices. They include two versions of unicycles, with some ridden standing sideways – effectively a single-wheel powered skateboard. The performance of all these machines is astonishing, and though many people do wear helmets it appears to me that most of them are breaking some laws most of the time. I’ve been wondering what the emergency ward staff and ambulance drivers are seeing. Besides ending up in hospital I would expect that many of them could end up in court – contending with a legal regime put together long before the advent of this new wave of personal transportation. My guess is that to date few of them have ended up in court – because the police are making no effort to tackle this new phenomenon (and in saying that I am not criticizing the police).
I also have self-represented all my life in unjust issues, so I thank Jeff for making this important point for me. Previously, I had 14-year civil issues with a convicted ex for injury damages and title severance for a home I paid nearly everything for. I had the sporadic representation of 3 dreadful legal aid lawyers for 12 years, but the 4th and 5th were wonderful and I finally won. Now I’m dealing with AB Lawyers Insurance Association (ALIA) in my claim against a lawyer who failed to serve my filed Dec. 2/19 Statement of Claim. He also failed to file and serve my amended Claim within one year’s time plus 75 days of a standstill Ministerial Order from Covid. I still think well of this lawyer because he helped me pro bono many times in my Neighbours issue when I was impoverished but this lawsuit and my $thousands damages loss is dead on Limitations. He did not tell me or write to me that he was withdrawing as per his Code of Prof. Conduct so I believe my case is clear-cut. But ALIA is making it difficult for me, even while my former lawyer and his firm knew the demands of their profession to a client. Another lawyer impressed upon me, “You’re swimming with sharks now.” Well, self-reps always knew we were up against bigger forces, didn’t we? But did we really know the immensity of those forces? That I am a fish lightly touching against a sharp-toothed shark puts my present effort into an understandable framework. I would do well to remember these nearly-unbeatable forces every step of my way forward.