Playing the Game: Reconciling Legal Education with the Challenges of Self-RepresentationNSRLP
In her article “The Reality of Pro Se Representation”, Judge Owens compares the self-represented litigant (SRL) experience to a childhood game. Just like ‘Hide & Seek’ or ‘Hopscotch’, the courtroom consists of specific rules and if a litigant does not follow the rules, they are out of the game. Owens goes on to inquire “If you don’t know the rules to the game, how can you win?”
My name is Erin Chesney and I am a law student at the University of Windsor as well as a research assistant for the NSRLP. Throughout my year and a half of legal education, I have learned many of the rules of the game of law in my various courses. Some of these rules are relatively straightforward, while others are more complex in their application. That being said, after studying a given subject for an entire semester, I have never been able to walk into a final exam and say ‘I think I had a complete grasp on all of the law in this course.” Law is complicated, even when legal education is your full time job.
Now, throw into the mix a career, children, expensive legal resources and many other obstacles that stand in the way of many SRLs being successful at the game we call justice. For me, it’s difficult to fathom self-representing while simultaneously confronting all these challenges. However, one of the most valuable lessons I have learned while being a research assistant for the NSRLP is that many SRL’s are extremely intelligent, incredibly resourceful and have the potential to grasp many of the legal concepts necessary to successfully complete a case. If we, as a society, were to move past the stereotypes and start to listen to their stories, we would begin to realize that ‘the SRL problem’ is not a legal education barrier but rather an overall disconnect between what people need and what the system offers them as access to justice.
This semester I am enrolled in both an evidence and a civil procedure course. In both of these classes, we are taught a given rule and the social policy behind implementing said rule. For example, we were taught that in order for a piece of evidence to be admitted at trial, it must be (1) relevant (2) material and (3) not violate any exclusionary rules. We were then taught the method for proving each of these requirements, all of which seemed relatively logical and comprehensible. For instance, the person seeking to admit the evidence can call a witness to testify regarding the materiality of the evidence. In my opinion, these rules are necessary in a court proceeding to ensure justice is being served. Furthermore, although it might take significant studying to master these rules, it is not an impossible feat.
However, there is a final barrier to evidence being admitted that blurs all the lines. A concept called ‘judicial discretion’ gives the judge the power to make the final decision, even if all the aforementioned requirements have been satisfied. From my limited experience in learning about judicial discretion, it is my understanding that the initial reasoning behind providing judges with this authority is well intentioned.
Judicial discretion in the application of rules arises in all areas of law. In a criminal case, for example, this discretion is essentially the determination of whether the probative value (the strength of the evidence in proving a fact) is higher than its prejudicial effect (the harm it will do to the person the evidence is incriminating). From this test, it is clear that fairness for the accused (in a criminal case), which is a Charter-protected right, is a central concern.
I would never propose that I can truly understand the emotional roller coaster that is self-representation. However, I can imagine that after months preparing for a trial and learning as much as possible about civil or criminal procedure, it must be beyond frustrating that a judge can just rule against you. When a SRL has ensured that every single evidentiary requirement has been properly fulfilled, it must be completely devastating and seemingly unfair to suddenly fail without an understandable explanation.
SRLs believe if they learn the rules and show they can apply them, everything will come right for them. It is telling that in the National SRL Study (2013) we saw that SRLs complained far more about being disadvantaged by procedural rules that they thought they had understood and applied, than about any actual outcomes in their case. SRLs are not usually law students and have not attended extensive lectures about the reasoning behind certain legal concepts, such as judicial discretion. It follows that it is not reasonable to expect an individual outside of the legal sphere to instinctively know the context of legal procedure they have studied and the reasons why it might be an important part of the legal process.
In class we are taught that the purpose of rules such as these is to maintain the administration of justice and preserve the rights of those involved. However, to me, the lack of education and support that the legal system provides to SRLs does not seem to be promoting these objectives. This is not one person’s fault, but rather a systemic problem – that disconnect again.
Returning to Judge Owen’s metaphor of a game, it seems to me that a legal case is a game with very specific rules. However, being self-represented in Canada currently is like learning all the rules of the game, only to be tripped while it’s your turn. While it is not impossible to win the game, it is very difficult and emotionally draining. As a result, many SRLs leave court extremely frustrated and even angry, which only continues to perpetuate the stereotypes of self-representation.
SRLs are the new players in the legal game and they aren’t going away. For this reason we need to change the way the game is played if justice has any chance of winning.
 Judge Denise S Owens, “The Reality of Pro Se Representation,” (2013) 82 Supra 147