Querulous Litigants or Distressed Citizens: Who Are We To Judge?NSRLP
Beginning February, NSRLP will be promoting one of our Ten Action Steps for Change each month. The first of these, and the focus for February, is How We Think About Change.
Our hope is to raise the level of debate about what change means for the justice system and the legal profession in the face of the huge increase in the number of SRLs and the crisis in access to justice. On the heels of the National Action Committee Colloquium in Toronto this week, we want to extend the debate to include the system users, and break down institutional and professional resistance to the discussion of user-oriented solutions.
The first Action Step urges us to confront the urgency of the situation; recognize that this is a system problem rather than the “fault” of any one group, inside or outside the justice system; work on reducing our own defensiveness about change; and embrace innovation. A “threshold” requirement for How We Think About Change is that we bring a more nuanced approach to a debate that is often characterized by simple and inaccurate stereotypes.
Two Groups of SRLs
It’s nearly February, so I am going to get started. My target today for How We Think About Change is the emerging assumption in progressive academic writing that there are now two groups of SRLs.
I say “progressive”, because until fairly recently, much of this writing assumed that there was just one group, usually described as vexatious litigants. At NSRLP we have been trying to challenge that stereotype by showing through research that “by far the most consistently cited reason for self-representation was the inability to afford to retain, or to continue to retain, legal counsel” (from the Final Report of the National SRL Study).
This reality-check has begun to move the debate over the SRL phenomenon to a more complex level. New thinking now proposes two groups of SRLs – those who cannot afford counsel and are forced to represent themselves and another that are vexatious – or “querulous”, as Professor Hazel Genn describes them in a recent article (see (2013) Civil Justice Quarterly 32(4)). Professor Genn just gave the keynote address at the NAC Colloquium and has a long history of scholarship on civil justice and access to justice.
I have been observing the gradual emergence of the “two-group analysis” for some months now as efforts to re-cast self-representation as a financial necessity rather than a choice have begun to have an impact. But this may be a case of “be careful what you wish for”. Because despite Professor Genn’s explicit recognition – and the understanding of many others – of the porous line between these two categories, this is in danger of turning into a “two-group solution”.
The first group is beginning to be seen as deserving of our sympathy, while the second is widely regarded as a pain in the *** who need to be constrained or, ideally, eliminated.
Focusing on the Vexatious
The first problem with this bifurcated approach is that inherent in every dualism is the danger that one side will be seen as a lot more interesting than the other. In this particular dualism, the sexy-newsprint- attractive group – the SRL celebs if you will – are the vexatious aka querulous litigants.
This preoccupation is evident in the focus of agendas at professional conferences that have adopted self-representation as this year’s “theme”. Perhaps this is because focusing on vexatious or querulous litigants allows for more dramatic storytelling. Perhaps it is because this focus allows those of us with legal training to indulge our fetish for creating rules and constraints (which assumes that penalties and punishments will actually work to moderate the behavior of the truly vexatious, also worth questioning as part of How We Think About Change).
False Dichotomies and Porous Dualisms
The second problem is that despite Professor Genn’s caveat, our thinking about SRLs is inevitably constrained by such a dualism.
We understand much of the world via dualisms (good and bad, rich and poor, smart and stupid) which limit and distort our thinking by entrenching false dichotomies. They also constrain How We Think About Change.
It’s a Spectrum, not a Dualism
This is not a dualism of course, but a series of spectra. Every SRL – indeed each participant in civil and family litigation – places somewhere along a spectrum of impact from those who maintain their center throughout, to those experiencing situational mental health issues (stress, shirt-term depression), to those with long-term mental health disorders (personality disorders, bi-polar, psychosis, etc).
Where SRLs end up on the spectrum of mental and emotional impact – which may be a very different place from where they began – will depend on a variety of factors including their personal vulnerabilities, their past experiences and reactions, how the system treats them, and so on.
We also found in the course of our research that financial considerations pan out along a spectrum. Many SRLa have literally no resources, or no resources left after paying for a lawyer for 6 months or more; others have to decide whether to go further into debt; and yet others whether to reallocate a pot of savings for their kids college fees, or to stop helping out an elderly relative.
In making these choices that locate them along a second, financial, spectrum, potential SRLs need much more evidence to persuade them that legal services are worth their hard-earned cash – but that is another blog. Here I want to concentrate on the mental and emotional consequences of being a SRL.
It’s Official: Being a SRL Makes You Nuts
Many of the SRLs in my study, and other SRLs whom I encounter and talk to every week, speak about the impact on their sense of self and reality of engaging in litigation. They begin to doubt their own sanity, many tell me. They feel as if they are falling into an abyss of obsession, compulsion and despair.
Some former SRLs look back now on their intransigence, their conviction that the system was conspiring against them, their overwhelming sense of grievance, their obsession with what they now see as trivial details, with a sense of wonder and unreality Typical is the comment “that is not who really am – I really was completely mad for a while.”
As well as research showing that individuals with long-term mental health issues are more likely than others to find themselves involved in a legal conflict, we have equally compelling research that shows that the correlation goes in the other direction – that many people who are engaged in litigation suffer mental health consequences. One SRL – a mild-mannered, soft-spoken college lecturer – who has spoken publicly on behalf of the Project many times, describes engaging in family litigation as “a recipe for psychopathy”. He made this comment in relation to his initial experience while he was still represented by a lawyer. The additional stress of representing oneself is incalculable.
The clinical symptoms of the “querulous” litigant described by psychiatry professors Paul Mullen and Grant Lester in a recent paper (Behav. Sci. Law 24: 333–349 (2006) – unusually persistent complaints, a conviction of victimization, and resistance to making a deal – do not, they acknowledge, require any “pre-existing mental disorder” although there may be individuals who are more “vulnerable” to these symptoms. Such vulnerability, they posit, could include those without good social supports or intimacy (for example, the end of a failed marriage).
Some of the ordinary and completely sane men and women forced to represent themselves will “cross-over” into the “querulous” group. Expert affidavits by psychologists and psychiatrists are beginning to attest to this impact in cases all across Canada.
From “Deserving of Our Sympathy” to “Querulous”
A third and compounding problem with a simple dualism of SRLs – the financially strapped and the crazy – is that one group appears to be deserving of our sympathy, aid and support while the other does not. But the spectra described above means that there can be no clear bright lines between those who deserve our assistance and empathy, and those who do not.
We can say with certainty that a clear majority of SRLs did not enter the justice system with a pre-existing mental health condition. These are ordinary, hard-working men and women who are trying to figure how to move forward with their lives after a devastating personal blow – the failure of a marriage, the loss of employment. They often begin by hiring a lawyer to help them and then realize that their pockets are not deep enough to continue to retain this assistance.
Having plunged into the icy cold waters of self-representation, stress and anxiety levels rise with the complexity of pursuing their own case.
Are they then fairly labeled as “querulous”? While they may exhibit some of the characteristics of “querulousness”, are they not more accurately understood as “distressed”? And does the fact that they are distressed mean that they are undeserving, dangerous even?
There But for the Grace of the Universe
I am convinced that any one of us facing the degree of personal disappointment and disruption faced with regularity by SRLs, especially those in family court, could find ourselves similarly displaced from our usual cognitive and emotional patterns.
It is important to develop grounded clinical theory about the impact of litigation in general, and self-representation in particular. But as we do so, we must not forget to relate the clinical symptoms to cause and to the experiences of real individuals.
And remind ourselves – as we think about How We Think About Change – that there but for the grace of the Universe, go we.