Written by Dr. Julie Macfarlane; originally published on Slaw, Canada’s online legal magazine.
Are people coming to court without counsel “self-represented litigants,” or are they “unrepresented litigants”? I shall reveal all below, but frankly, I feel the tendency of the Canadian Bench and Bar to get caught up in assigning separate distinctions to these terms distracts from the important work of understanding the lived realities of these litigants, and working with them to find solutions to our shared and indisputable Access to Justice problem.
All the same, the reason it IS important to address this issue once again is because the language describing those who are in court without a lawyer has been used to demonize, marginalize, and disempower them.
What’s in a name?
The first and obvious point is that language is important because it shapes our perceptions. On this point I totally agree with what my colleague Pam Cross, writing recently in Lawyer’s Daily, has said.
Need an example of the power of language to shape or distort opinions?
– “unwed mother” vs. “single parent”
– “spinster” vs. “single woman”
– “broken home” vs. “two home family”
Which brings us to the so-called distinction between “unrepresented litigants” and “self-represented litigants” that is the focus of Pam’s recent article.
Pick your own name?
Given the misery that representing yourself in court amounts to, there is an argument that a self-represented litigant, or SRL, (the term we use at NSRLP) should be allowed to call themselves whatever the heck they wish.
For example:
– Person-trying-to-stand-up-for-themselves/their family
– Person-hoping-to-win
– Person-with-nothing-better-to-do-with-their-time (seems unlikely, but your call)
– Person-who-believes-appearing-alone-in-court-might-be-a-way-to-launch-a-Tik-Tok-career (also unlikely, but whatever)
– Person-desperately-wishing-to-be-represented-but-unable-to-afford-representation-because-of-the-fees-charged-for-representation
Language and inter-cultural competence
One of the special skills of lawyers – and indeed anyone seeking to control a narrative – is the ability to convince others that a particular word or name or expression is an absolutely unassailable, 100% convincing designation of an actual thing.
Like “reasonableness.” (Remember those fun law school days?)
Or “family.” Or “property.” Or “ownership.” “Or “vexatious.”
This, despite the fact that of course the nature of language is inherently subjective, fluid, and reflective of culture and context, as are the narratives we use language to create.
One of the reasons that we encourage our kids to learn a language other than the one they are born into is that having more than one word to describe an object develops important conceptual awareness. An understanding that a word is not the singular encapsulation of an object, but that it is always mediated by context and cultural understanding.
For example: there are more than 20 words for “apology” in Japanese (I do not speak Japanese – I read this here). Each one is of course different, with a different nuance and inflection, and different versions are suitable in different contexts (for example, “forgive me,” or “excuse me,” or “I am trying to be polite but I don’t like you”).
We all know this about the nature of language, but admitting it would spoil so much of the fun of legal practice (and the power of lawyers?) when we insist over and over that certain words carry exact, constant unassailable meanings.
Language to describe those without lawyers in court
Having spent much of the last 9 years talking with individuals who fall into this group, here is what I have learned about how they would like what they are doing to be described:
– Most are not doing this out of choice, but because they cannot afford or can no longer afford legal assistance (over half of them began with lawyers).
– If you cannot afford to pay for a lawyer, you are unlikely to want to signal this to a packed courtroom. It is embarrassing for most people to admit this.
– There is no objective standard of “cannot afford.” In 2020 we do not require people to prove that they “cannot afford” a lawyer, or ask them to justify their decision, perhaps, to buy a new car or take a holiday instead of spending that money on a lawyer.
– Many of those coming to court without lawyers feel that describing themselves as “unrepresented” is a form of erasure. It feels like the legal system is saying they are just not there, they cannot see them, they don’t count.
This was one of the conclusions of a 2011 study, which also made the point that “unrepresented” assumes that representation by a lawyer is the norm (no longer a safe assumption).
The vast majority of the thousands I now have worked with and talked with over almost a decade prefer the term “self-represented.” They say that it feels more empowering for them than “unrepresented.” This is the intentional nomenclature that we have come to adopt at the NSRLP – because most SRLs tell us this is what they prefer. Of course, there are some who prefer “unrepresented,” but a quick check in with A2J advocates in other common law countries will tell you that most self-describe as self-represented.
I do not have a dog in this fight – whatever we decide to call people coming to court without lawyers is fine by me, as long as it is respectful, and in accordance with their preferred designation.
What is really important, however, is that we do not fall into the logical lawyer’s trick of ensconcing just one singular meaning for “unrepresented,” and a separate one for “self-represented.”
Why not?
– Because each litigant is an individual.
– Because each litigant has their own story that led them to not be represented by a lawyer.
– Because a litigant’s choice of nomenclature does not reveal something fixed and unarguable about their motivations.
Wait, how did this become about motivations?
While “unrepresented” and “self-represented” are still often used interchangeably, at NSRLP we have increasingly become aware of the development of a spreading meme: that those who are labelled “unrepresented” are genuinely facing no other choice and are deserving of our sympathy, while those who are labelled “self-represented” are choosing to go it alone because they want to – the often just-below-the-surface implication being that they are bloody minded, arrogant, or looking to cause trouble.
Pam refers in her article to a finding reported by Nick Bala and Rachel Birnbaum who recently asked judges their opinions about the reasons for self-representation (an earlier study is here). They report that 44% of the judges they asked about SRL motivations believe that men are more likely to be “self-representing” because they think that they can do “a better job themselves” than a lawyer, and will not pay for a lawyer “even if they can afford it.”
Look, I’m the last person to suggest that judges are gender-neutral in their assessments, and it is no bad thing for judges to reflect on gender biases in their courtrooms. But why do we think that they are any better able than the rest of us to make a magical, fact-free, possibly interaction-free assessment of someone else’s motivations for coming to court without a lawyer? Is there a new medical test that can detect “impure motives” for representing yourself that we can give to people without lawyers?
Moreover – should we not be concerned that judges hold such gender-specific perceptions without any apparent factual basis? Isn’t the more important question why we permit this anecdotal view to go unchallenged?
More important: how is this helping?
I’m know I am spoiling the objectified-language-generalisations-fun here. But I believe it is irresponsible to give voice to dangerous myths that pervade the legal profession and the Bench, and only increase our intolerance of self-represented litigants, while doing nothing to increase our understanding of them. And these myths are expressed and empowered by the language we use.
I really hope we can put this argument to rest. I’d rather be writing about how we can collectively develop solutions that can assuage litigants’ misery – whatever we call them.
When I was younger, I worked on my own vehicle because I could not afford a mechanic. I didn’t have someone looking on telling me that I can’t do this or I can’t do it that way. You can’t use that type of oil.
I came to court with the truth, she came with a lawyer. Guess who prevailed?!
Kelly came with truth. Other came lawyer. The truth cannot be seen. The price of lawyer can not be hidden. Matter of prevailing depends on the the credibility of judge. In most cases money wins.
Dear Dr. MacFarlane,
Really appreciate that there are individuals out there who can identify and acknowledge the difficulties SRL’s are facing in the judicial system, not just in manoeuvering through the Judicial areas and services which are ‘one would think easily obtained for the public’, but the multitude of left over concerns and issues once actually being heard by Judges, particularly on line now with Covid, where actual document reference is not in real time while being heard.
All of these considerations for a fair judgment are in need of an address and, I, for one am very encouraged that you people ‘have our backs’
so to speak.
Thank-you for all of the good work you and others are doing in bringing the public awareness and the courts up to speed.
Dear Debbie Practice makes perfect. The lawyers vs SRL is matter of practice. SRL can submit better factums and authorities than a seasoned lawyer. But judges are interested to listen the arguments. They do not bother to go through the self explanatory DESCRIPTIONS of SRL. As SRL I lost my case only for that reasons. The SCC has drawn a line of distinction between lawyers and SRLs but most of the judges give weight only to the lawyers for the reason the lawyer come across and face the judges frequently.
Judges often penalize self-represented litigants – or hold them to account – for the mistakes of their prior counsel. In my own practice, I have seen many SRLs who need a “course correction” in their file due to wrong or ill-considered approaches taken on their behalf by previous counsel. It is quite common for many SRLs to have gone through multiple counsel, sometimes on full retainer, and often on limited scope retainers.
Though judges might consider such SRLs to have benefited from counsel in the past – and hold them to account for it – the file often suffers from the distorting effects of having no continuity of counsel on it. The lack of continuity of counsel is a factor that judges should take into account, particularly when assessing whether a litigant should be held accountable for delays in raising grounds that the litigant knew, or ought to have known, were available to them.
The lack of continuity of counsel may very well be a signal that the file is unusually complex, and that the litigant is finding difficulty obtaining counsel able to effectively understand and to articulate the client’s position and particular situation. More often than not, opposing counsel may exploit the other side’s discontinuity of counsel to keep any new counsel off-balance and mired in procedural battles, impairing the new counsel’s ability to get a proper handle on their client’s case.
This is an issue that needs to be discussed and dealt with among members of the legal community.
As a male person who has stood in front of a family court judge without a lawyer I could t agree more. To be blunt, I felt intimidated to begin with as I would ha e much preferred to have a lawyer representing me but was I able to afford one and believe without any doubt that my case was considered not to be valid . The judge bullied me into returning with an attorney at a later dates by stating I would be ordered to pay my ex wife’s legal fees if I showed up on my own .
Thank you for the work you are doing . It helps so many people to not feel like we are totally alone
The biggest PROBLEM is that there’s always lost of track between, time limitations, discovery and, examining discoveries. Before trials. And, of course involving both the lawyers representing and, the process of the court, motions, So. at this stage the next lawyers to take over the case will not decide to go against his friends. So most lawyers will not even except to service you because of the nature of your case. In this sense the next representative lawyer will not represent you because they are afraid Or certainly cannot take such a case. Which can turn the whole procedure and, through lots of misunderstanding, lost of track, this is the timing that litigants will question every authority everyone around themselves have.
Three points. Picking up on the first comment, how many young people try to work on their own cars now? My guess is not very many, unless it’s an old car. Try to do that on a new one and you’ll probably void the warranty. At the dealership they have specialized mechanics. That’s the model for the legal system.
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Regarding names for us, my understanding is that in the U.S. they use “pro se” and in the U.K. it’s “litigant in person (LIT)”. Those sound less subjective to me, but would the reality change in Canada if we used one of those terms?
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An interesting example of (alleged) poor treatment of litigants by a judge is found in the report of the CJC’s review panel in the case of Justice Gérard Dugré – accessible at this link: https://cjc-ccm.ca/sites/default/files/documents/2020/18-0318%20Report%20of%20the%20Review%20Committee%20EN%20Dugr%C3%A9.pdf
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There has been very little media commentary on this case, which the CJC is continuing (for now anyway) to hear in camera.
call it what it is: “propria persona sui juris”
NSRLP’s blog this past week had a great article “Critical Judicial Decisions for Self-Represented Litigants: Using important case law that establishes rights for self-represented litigants.” I used these cases for my Motion for Reconsideration at the Supreme Court of Canada (SCC) before this article was published.
Jonsson v Lymer, 2020 ABCA and Girao v. Cunningham 2020 ONCA are two of the cases and it will be interesting to see if the SCC will follow the decisions made by the various Appeal Courts or are they just going to throw them under the bus as they have done to so many SRLs?
When I lost my appeal, I decided to seek leave from the SCC. Frightening fact (Ottawa Citizen), only 0.26% of SRLs ever get heard at the SCC. The SCC wants cases of public interest and importance. My submissions were based on the lives of SRLs, the largest growing segment of the litigant population and the injustice of the use of Rule 2.1 or similar against SRLs. This is emerging as an intentional strategy against SRLs, labelling them vexatious and more. It is not the SRLs fault that the legal system has priced itself out of the market. These SRLs are not there because they want to be, but they are forced to be there if they want any justice at all. Unfortunately, Rule 2.1 is stripping SRLs of their constitutional right to be heard, to have a fair trial or A2J.
My case was dismissed at the SCC so I filed a Motion for Reconsideration which is governed by Rule 73 which states in part:
“The Registrar shall refuse to accept a motion for reconsideration that includes an affidavit that does not set out exceedingly rare circumstances.” The affidavit will include, “an explanation of why the issue was not previously raised.”
Continued – I cannot believe that there could be a better reason for setting out the exceedingly rare circumstances when decisions in these Appeal Court cases were diametrically opposed to the reasons given by the COA against me which is what I tried to appeal. These new cases were decided after I submitted my documents to the SCC and that is why they were never mentioned.
Lymer “Was a landmark case for self-reps, addressing the issue of vexatiousness, and just how careful courts should be when deciding to designate a litigant “vexatious”. One reason for using Rule 2.1 is “to prevent a named litigant from commencing or continuing proceedings.”
Decisions in these cases reaffirm that the Court will exercise its authority to dismiss a claim under Rule 2.1 cautiously and sparingly, only in the clearest of cases where the vexatious, abusive nature is apparent on the face of the pleading. They did not do this in my case.
There was bias, a process server’s fraudulent affidavit, we were never served. The case was for a fundamental breach of our contract which was never read. The contract had: 1- A jurisdictional clause, we were sued in the wrong jurisdiction, 2- A limitation of liability clause, the Plaintiff sued for 7 times more and the judge awarded 5 times more. They sued a company that had nothing to do with this case and garnished 4 of their bank accounts, which directly caused the 3 additional cases. We were defamed by the Judge and opposing lawyer despite case law against such practices. This caused every Judge to question my credibility as per the transcripts and 11 judges subsequently ruled against me while the Supreme Court dismissed my case.
Has the Supreme Court of Canada become a protection system for judges as previously written by others?
I want to make a point of thanking Jeff Rose-Martland for his opinion piece, “Whose law is it anyway” published today on The Lawyer’s Daily. The link is https://www.thelawyersdaily.ca/articles/23331.
Thank you Chris, we agree, we’re really excited about Jeff’s great piece. We’re sharing it on our social media today, and will repost it on our blog here in January. Thank you for sharing the link here as well!
no matter what we are called,, out here in BC, if you are “vexatious” you cannot claim to be an indigent, or impoverished person. So, since almost all self represented litigants are eventually declared vexatious, we now cannot ask to access the courts for free. The act has been changed, now, the only thing that comes under the heading of impoverished, are filing fees. If you need papers, too bad, if you get ordered against for costs, also too bad, and you cannot get an order declaring you impoverished or indigent, if you have a case that the courts determine to be “vexatious” That is what is happening in BC. You can get any orders you want helping the self represented, the courts will revert to procedure, And change that to get them back to the same place
i am looking for someonne WITHIN the legal profession to assist me in preparing an appeal of my vexatious designation i do not need them to present it, just help prepare it. Is anyone aware of someone willing to do this?? i am in chilliwack,, BC, however, it can easily be someone anywhere in BC now that we have zoom. even a paralegal with some experience with appeals, and jonnson vs lymer. will do. i know there must be someone willing to do this.