Our Collective Responsibility for Judicial Rudeness: Time to Press ResetNSRLP
As a finale to our month of focus on “Listening to SRLs and including them as stakeholders”, I want to explore a legal culture that enables and tolerates judges treating SRLs rudely and discourteously.
I do not mean to suggest that all judges behave this way. There are honorable exceptions and I hope they will take some support from this blog post.
For example, I did not notice any Supreme Court justices sniggering behind their hands at Elizabeth Bernard when she presented her arguments to them last December (the first SRL in the SCC for 7 years, she was awesome). Maybe other judges could take some hints on polite behavior from them.
The problem is – they are presently the exceptions that prove the rule. If you are in any doubt about this, please read the stories in the chapter on “Judicial interactions with SRLs” in the Report of the National Self-Represented Litigants Project.
Enabling and Tolerating
The present culture permits and offers impunity for incivility and, on occasion, expressions of direct hostility by judges towards SRLs. This is a direct consequence of the way in which the presence of SRLs in the courtroom is framed (“Why can’t they just get a lawyer and stop being such a nuisance?”).
In this framing, “helping” a SRL apparently includes the following:
• Giving them any information or assistance at all that is at all different to the way that a judge might address a qualified lawyer – that is, an individual with three years of legal training and at least a year of professional experience (and lawyers need to stop bleating about judges “helping” SRLs when they offer them any small tidbit of assistance to navigate the proceedings);
• Mockery and ridicule, eye-rolling, exasperated signs, and other histrionic behavior where at some other point in the case the judge has been minimally civil (this is the “in totality” approach advanced by the Ontario Court of Appeal this week in Martin v. Sansome, 2014 ONCA 1, where the court heard that the trial judge had called the SRL “an idiot”).
Moreover, judicial bad behavior is constantly excused by reference to their “frustrations” at having to deal with SRLs. I have said on record many times that I appreciate that the new reality – dealing with large and growing SRLs – was not the gig that many of our present judiciary signed up for and were expecting. But this cannot excuse the inexcusable. Neither should this be normalized and subsumed into a definition of “fairness” (for example, “[i]solated expressions of impatience or annoyance by a trial judge as a result of frustrations … do not of themselves create unfairness” (Chippewas of Mnjikaning First Nation v. Chiefs of Ontario, 2010 ONCA 47 at 243)).
It is comparatively rare for a judge to accept the presence of a SRL in their courtroom without chastising them for being there without a lawyer. This stems from the same framing – that SRLs are just doing this to annoy the judges and mess up the system. SRLs have told us over and over again that they do not understand why judges do not “get it” – the cost of legal services and the diminishment of Legal Aid mean that a vast number of people are now unable to afford legal services and ineligible for public assistance.
Telling SRLs repeatedly that they “should” hire a lawyer and acting offended when they show up without one is completely ludicrous and counter-productive – and is bringing the legal system into disrepute.
The core problem – the unaffordability of legal services – is a problem that needs the commitment and efforts of many people in the justice community. Next month, when our focus turns to Action Step #3 “Making Private Legal Services Responsive to SRLs”, I shall be blogging about ideas for change here.
What We Can Do Right Now
In the meantime there is something that everyone who works in the legal system can do immediately about judicial rudeness and obdurance in the face of SRLs. A lawyer who rarely goes to court and who participated in a workshop I ran on SRLs last week in Vancouver told a story about going to court one day and watching as a judge in family court called up and upbraided one SRL after another at the beginning of court that morning. She whispered to a colleague “What is going on here?” The reply “Oh, he’s always like this.” We are accepting this type of behavior from the Bench towards parties representing themselves as “the new normal”.
The next time you see a judge treating a SRL in a rude, hostile or mocking way, you need to say so – to a colleague, to the court clerk, to the judge him or herself. We need to stop tolerating this and stand up for a system that even in a time of change and strain and tension can still treat people fairly and with civility.
Pressing the Reset Button
Our focus needs to turn away from obsessing about whether or not we can construct a legal fiction of “fairness” – which appears from Martin v Samsone to amount to not being treated horribly for the entire time you are in the courtroom – that cloaks judges with impunity when they treat people badly. Of course we understand that judicial independence is important – but our notion of what this means is distorted by the culture that tolerates this behavior and rests on the erroneous assumption that SRLs are just behaving badly, rather than foundering hopelessly, in the courtroom.
Whatever happened to the judicial “duty to assist”? A few judges are working hard at figuring out how to manage their courtrooms in a way that enables SRLs to participate functionally and fully. These judges understand that if they are to do their job well, they need to use their considerable experience and intelligence to adjust their approach to conducting a hearing or a trial, rather than to stubbornly continue to behave as if everyone they address is a lawyer and berate them if they are not.
We need to press the reset button on how we think about fairness and judicial independence if we are going to bring court proceedings involving SRLs – more than half of family cases now – back into the real-world where the general public makes some fairly consistent assumptions about proper standards of courteous behavior. This does not include calling someone an idiot, eye-rolling or ridicule, or raising one’s voice and upbraiding someone as if they are a disobedient child.