Self-Represented Litigants (and Law Students) Are Not the Enemy

Sometimes the discourse about SRLs that emanates from some of our embattled members of the Bench – who are presently experiencing a seismic shift in the ground on which they stand as they face more and more people without counsel in their courtrooms – has been reminding me of another, earlier discourse.

This was one I heard 20 or more years ago when I first came to Canada and worked at the now-defunct Canadian Law Teaching Clinic, offering teacher coaching and support to law professors.

I was struck at that time by a pervasive culture that characterized law students as “the enemy”. Some faculty appeared to see students “only” as the people who got in the way of them doing what they really wanted to be doing (working on research, writing). Others were defensive about the (at that time relatively recent) introduction of instructor evaluations. Some of those who were the most scared and defensive about student evaluations were – understandably – new faculty and particularly women faculty (in the early 1990’s, this was the first wave of significant recruitment of female law professors).

On a micro level, I could understood and even sympathize with some of these reactions (and especially the fear among untenured women faculty about giving students the power to evaluate a professor). I also understand and sympathize with judges who mourn the disruption of “business as usual” in their courtrooms as SRLs flounder about, and the seemingly bottomless reserves of patience and empathy they must draw on to respond to these newcomers.

But in both cases, there is a problem with a discourse that frames “the other” as “the enemy”.

• “The other” in both instances is actually the subject of our service and
• An “us and them” attitude jeopardizes efforts at critical collaboration between system users and system providers.

Parallels between the two discourses

In the meantime, I am beginning to see, hear, and feel many parallels between these two discourses.

Framing the problem

Some of the most telling signs are the use of humor to frame the nature of the challenge. For example, it seems quite acceptable – expected even – in some professional gatherings to snigger at the inept behavior of SRLs. There is an eerie familiarity about this that takes me back to rooms full of law professors telling hilarious stories about stumbling student stupidity.

I am also struck by a parallel in the framing of the issues that receive the greatest attention/ take up the most airtime. In an “us and them” framing, these are the negative, sexy, but marginal issues. So when law professors characterize law students as the enemy, the need for constant reinforcement and justification of this perspective focuses conversation on students who are a problem, who resist particular forms and topics of instruction, or who otherwise are seen as challenging professorial authority.  Of course this group exists, but it hardly represents a revolution – far more significant are students who struggle with material and require extra help.

Similarly I grieve at how sometimes the Canadian legal community chooses to focus its conversations about SRLs on “Hall of Famers” such as the bizarre Freemen on the Land (a tiny percentage of SRLs) or how to define and then control the behavior of “vexatious litigants” (see https://representingyourselfcanada.com/2012/10/06/avoiding-conflation-opcas-and-self-represented-litigants).  Again a more appropriate framing might be how to assist the vast majority of SRLs who wish to be more functional in the courtroom, rather than to focus on those who have no interest in being functional at all.

Normative responses to the problem

There is a further parallel in expectations of a normative response to the challenge. Law professors 20 years ago assumed that their privilege could be used to demean law students and to exercise their authority and autonomy. I recall reading a response from a professor to a student who had written to a student newspaper complaining of lack of clarity in this professor’s assessment process. To which the professor replied: “I make the rules, you follow them.”

I believe that attitudes among our judiciary are changing rapidly and that few would address a SRL in such a presumptive and entitled way. But we know that a few still do –and that their behavior is rarely called by their colleagues (https://representingyourselfcanada.com/2014/04/01/our-collective-responsibility-for-judicial-rudeness-time-to-press-reset). There are some on the Bench who remain feel confident of their “right” to put down SRLs and untroubled about pronouncing a definitive analysis on whether they are stupid, or not trying hard enough, or intentionally being disruptive. Just imagine their reaction if we now proposed that that judges should be subject to litigant evaluations of their handling of the courtroom?

Appropriating victimhood

Finally, there is a ”poor us” element in both discourses that handily frames law professors – and now judges – as the victims of, respectively,law students and SRLs. At the same time there is a minimization of the impact of the powerlessness on the “other”. So law students are whiners (of course a few are) and SRLs are a pain (of course a few are) – but the generalizations are lacking compassion and acknowledgement (https://representingyourselfcanada.com/2014/01/28/querulous-litigants-or-distressed-citizens-who-are-we-to-judge)

When judges with final decision-making power, or professors with the power to pass/fail, paint themselves as victims in their relationship with a less powerful other – we need to step back and do a reality check. Naturally there are all sorts of ways in which their power is mitigated by circumstance – women law professors in a male dominated academy, junior judges who get assigned the grunt work in their courthouse – but they are still essentially powerful players compared to those who stand on the other side of the professional divide. Claiming victimhood in this narrative is itself a power play – because it allows for change or different points of view to be batted away, and it enables excuse-making (and bad jokes).

Fast forward to culture change

On a systemic level, the culture of expectations surrounding the student/ professor relationship has changed quite a bit in the last 20 years. There is still grumbling, of course, but it is no longer quite so entitled. No one laughs any more at the suggestion that students are “consumers”. I am left wondering if a similar cultural shift is necessary – and there are signs that it is beginning – in judicial discourse regarding the SRL challenge.

So let’s fast forward. To a culture where judges assume the role of leaders who use their power to make the system they work in better. To a culture in which this use of power – as moral and pragmatic leadership – is normative, expected, and assumed, both by those inside the legal community and by the public. Of course there will still be SRLs who tax the patience and some who are very, very hard to help – just as every law professor will tell you that occasionally they come across a law student who makes them shake their head with exasperation. But this is just part of the job. It does not make them the enemy.

Because SRLs are not the enemy. They are not even “the other”. They are the public. And in fact they are also – big breath – “consumers”.