Self-Represented Litigants, Judges, and the NSRLP McKenzie Friend Guide

Guest blog by Judith M. DaSilva

Just over a year ago, I approached Julie Macfarlane for supervision for my LLM. I had read her book “The New Lawyer” and loved how she thought about negotiation, and re-defining roles for lawyers and teaching methods for law students. Normally, she would have declined my request for supervision, given her schedule. My magical strategy – I suggested that perhaps I could do a piece of research for the NSRLP. The McKenzie Friend: Bringing a support person with you to court is the result.

A McKenzie Friend is someone, usually a friend, family member, or other trusted person, who sits beside a self-represented litigant in court and can help with any or all of the following: moral and emotional support, practical support like reaching for and organizing documents and taking notes, occasional quiet and unobtrusive suggestions or communications through notes or whispers, and possibly offering feedback before and/or after a court appearance. This person cannot give legal advice or address the court. A self-represented litigant needs to ask for the court’s permission to have a McKenzie Friend, and permission is granted at the discretion of the judge.

The name McKenzie Friend comes from a case in the UK in 1970 called McKenzIe v. McKenzie, where Mr. McKenzie appealed the decision of a judge who disallowed his having a friend sit beside him in a previous trial. The court of appeal ruled that the judge should not have refused, citing a case from 1831, Collier v Hicks: ‘Any person, whether he be a professional man or not, may attend as a friend of either party, may take notes, may quietly make suggestions, and give advice … ‘ (Collier v Hicks (1831) 2 B & Ad 663).

In Canada, where the numbers of self-represented litigants are rising alarmingly, SRLs are looking for more and better ways to get help and support for courtroom appearances. Asking for help from a friend or family member seems an obvious first choice, but most SRLs don’t know that they

can ask the court for permission to bring a support person or McKenzie Friend into court with them.

Based on my interviews with judges, such permission is often asked for, and often given. However, there is no consistent judicial approach for granting permission.

When someone walks into a courtroom and asks for a friend, or even specifies a McKenzie Friend, how is that request understood by a judge? This is a question that I hoped to answer via my research interviews.

And how can individual SRLs – who often have limited experience with and unclear expectations about the legal process – choose the “right” person to help them?

The view from the city wall

While I was doing this research, I felt as if I were walking on the top of a wall encircling a medieval town. My image is the walled city of Óbidos, Portugal, just outside of Lisbon. One can walk around the whole city looking down on it, oddly intimate, peering down and feeling like you are in the backyards of the people who live against the wall.

One can see equally clearly out beyond the wall with an amazing panoramic of the entire landscape surrounding the city (for an image, click here).

It occurred to me that this image might be helpful for going through a legal process as a self-represented litigant. Follow me around the wall…

• When you’re walking around the city on the wall, you are neither in it, nor out of it, but a little of both.

• You are technically in the city, but the way you look down on it gives you a feeling like you are outside of it, but not quite, you are still intimately connected to the city

Going through a legal process can feel like you are trapped behind walls, outside the rest of the world, and part of a legal landscape that is difficult to fully understand or to see. It may be difficult to prevent your emotions, fear, or anxiety impede your ability to problem-solve your case, to know what to do or say next or what the next step should be, or to think clearly in a courtroom.

What if instead of feeling trapped in your fear and anxiety you could climb up onto that wall and look around at that panoramic perspective? If you had a lawyer, it would be their job to give you that perspective. What if you are alone?

If this describes your situation, someone you know, or that of a client who is now primarily self-representing, please read on.

Developing the McKenzie Friend guide

My process of interviewing judges and talking to lawyers about the McKenzie Friend concept was very much like this walk around the wall. I am not a legal professional – a judge or a lawyer–but I am doing a Masters of Laws, and I have friends and acquaintances who are lawyers and judges.

As well, while I have not represented myself in a courtroom, I am a self-represented litigant in a complex and painful negotiation, a process which may or may not end up in a courtroom. In these respects, I don’t fit within any category: I’m not in, but I’m not out.   I’m walking around the wall myself – far enough away to be able to see all sides, but close enough to feel connected to all of them as well.

The result was I found myself listening, pausing, taking in and reflecting on other’s experiences with more patience than usual. I found it easier to step into another person’s shoes and reality, really take in all the perspectives. It became about understanding in a measured way all the variables that connect a courtroom process, and reflecting on how a support person for a SRL could most effectively fit into that system.

Finding a wider perspective with a McKenzie Friend

In this new NSRLP guide, we are inviting SRLs to try to walk on the wall. It is impossible to be fully outside your situation, but it is possible while in it to get to a place where you get perspective and observe yourself: as you write your letters, fill out your forms, or stand in a courtroom. And this is where a support person, a McKenzie Friend, can help. Choosing a good McKenzie Friend- or perhaps several good ones – can make a great difference.

A McKenzie Friend can walk around that wall with you, and help you get the perspective you need. A McKenzie Friend can give you valuable feedback when you are in danger of losing your objectivity or balance, and be the steadying force that can help you be your own outside eye.

A view from the wall, not a fall from the cliff

I think that in a courtroom, the image of walking around a city wall is a more helpful and supportive analogy than a more commonly heard description: that being alone in court is like walking along the edge of a cliff. The fear, anxiety, and sense of aloneness that is often part of representing yourself may feel like you are standing on the edge of a dangerous precipice —while you may be on stable land (like the wall was there to protect medieval towns, the court process is theoretically there to protect you), you can feel like you are standing on a cliff edge – one wrong step, and you are over the side and done for.

I invite you to replace this image with the walk on the city wall.

As you walk around that wall, or go into that courtroom, what keeps you from falling is being able to pause, listen, take in and then patiently take the next step, or in other words, respond in the courtroom. If you need a friend to do that, I hope this guide will help.

Just as Professor Macfarlane invites us to think differently about law schools and legal practice as a step toward solving access to justice issues, so too I think it is wise for a SRL, despite emotional turmoil, to do what they can to see their process in a context. A McKenzie Friend can help.