The Great Equalizer: Why Both Represented & Self-Represented Litigants are Asking the Same Questions about the A2J CrisisNSRLP
We know that the experience of self-representation in our justice system is remarkably consistent.
It takes enormous work and effort.
It is a frustrating, stressful and often an interminably long experience.
There are some good days – and many bad days.
And even those few whose good days outnumber their bad days acknowledge the very same work, effort, frustration and stress.
Self-representation is a great Equalizer
Our study data demonstrated that this experience is consistent across courts and provinces. Being a SRL is a great equalizer. No matter the nature of your conflict, your life skills, your formal education – and study respondents included many university graduates as well as some with Grade 12 education – or even – as those earning over $100,000 a year in our study will attest – the size of your bank account, many dimensions of your experience will be the same.
Some of these variables may help in certain ways. For example, without life skills like self-confidence and resilience there is even more pain. Those with some disposable income may afford some legal services, while those living on or just above the poverty line can never dream of paying for a lawyer, even for a few hours.
But nothing guarantees that you will escape the same frustration, stress and unrewarded effort of representing yourself in a complex and arcane system.
One SRL who has been speaking publicly about her experience and meeting other SRLs spoke to me the other day about the natural bond that immediately springs up between SRLs. They recognize their own experience in the other, over and over again.
Represented clients: the echo chamber
The Equalizing Effect of the A2J crisis is not limited to those navigating the court system without lawyers.
Some of what SRLs are telling us about their experience resonates with those who retain a lawyer. Represented parties also experience much of the same impact – financial, social, physical and emotional – described by SRLs.
Before this project, I spent 15 years interviewing lawyers and their clients, and much of what SRLs now tell me echoes the questions and concerns I heard from clients in those earlier studies.
What clients grumbled about to me was also remarkably consistent. Their concerns may be summarized as follows:
- Am I really being listened to and are my concerns being taken seriously?
- Can you explain why we have to follow these procedures/ rules/ timelines (including why they take so much of your time and cost me so much) in a way that I can properly understand?
- Can you help me to understand why you cannot guarantee me anything, not even (sic) fairness and justice?
Take me seriously
The same three themes jump out from our 600 plus pages of interviews with SRLs and our continuing conversations with them.
- “Am I really being listening to and are my concerns being taken seriously?”
SRLs are not just talking about (someone else’s) lawyer taking them seriously – they are talking about the justice system taking them seriously.
There is a pervasive sense of exclusion among SRLs as they describe their experiences in the justice system. They talk constantly about wanting to be treated as a real participant in the justice system, and not just as a nuisance who is getting in the way of the professionals doing their jobs.
SRLs know that they are not part of the “club”. As one put it, “(Representing yourself) is like going as agnostic to a religious court.”
For some, already vulnerable and financially marginalized, this is a familiar feeling. For others, it is not. They are accustomed to being treated as peers by other professionals. Now they find that they are not. This realization was especially profound for the lawyer/SRLs in the study sample. “I totally get it now. The lawyers strategize to marginalize you because you are a SRL. I am shocked at the success of this stereotyping and how negative it is.”
Why does the rule have to be that way?
- “Can you explain why we have to follow these procedures/ rules/ timelines in a way that I can properly understand?”
Both represented and self-represented parties need to know “why”, just as much as they want to understand “how”. That is the 21st century way. We no longer blindly accept rules and procedures for which reasonable explanations are not forthcoming.
There are many examples of this theme in our SRL transcripts. SRLs are constantly searching for the rationale or purpose behind a given requirement (especially when that requirement seems burdensome and unfair). Their questions about “why?” include filing procedures, rules of evidence, witness examination, waiting for judgment, how to enforce a judgment – in fact any rule that is presented with as a fait accompli that does not make intuitive sense to a layperson. They ask for explanations to help them understand and accept these rules from counter staff, court clerks, duty counsel, and indeed anyone else who will help them.
(Of course, many rules of procedure make little intuitive sense to lawyers either: as one lawyer-SRL put it to me ““Even the lawyers can’t figure out the system unless they have been there, know the staff, and have a means to get answers.”)
Heather Hui-Litwin, a lawyer participating in one of our legal coaching pilots (http://drjuliemacfarlane.wordpress.com/2014/01/21/were-getting-started-are-you-coming-with-us-a-first-legal-coaching-experiment/ ) and herself a former SRL, recently made the following observation which perfectly encapsulates this theme.
“SRL’s have an innate sense of justice, which they mistakenly believe will serve
them well in their court case. They do not understand the importance
(and consequences) of following the rules and the impact of precedents….
An SRL who has no legal training may also have difficulty accepting the rules, or
following the rules, when they have no understanding of their purpose. No one
wants to obey arbitrary rules! If a lawyer-coach explains why the rules are there,
it is more likely that the SRL will accept and engage with the rules.”
Explaining and justifying the discretionary application of rules
And of course, a further problem is the distance between a rule and its application. Back to a question constantly floated by represented parties.
- “Can you help me to understand why you cannot guarantee me anything, not even (sic) fairness and justice?”
Represented and self-represented system users alike have a hard time understanding – and therefore accepting – why every rule is obviated by “discretion”.
Those of us who have legal training see this as “obvious” – but it is anything but for SRLs and for others who enter the legal system as clients.
The death of deference to professional authority (“just trust me” no longer works very well) and the precipitous rise in self-representation mean that our “inside secret” that pretty much everything comes back to judicial discretion (or the “length of the chancellor’s foot”) is no longer, well, a secret at all. It is exposed to full public scrutiny. And the public do not “get” it.
I have suggested in a recent blog – https://representingyourselfcanada.com/2014/03/03/new-york-state-introduces-srl-navigators-can-we-narrow-judicial-discretion-on-allowing-mckenzie-friends-into-canadian-courtrooms/ – that the normative basis of a discretionary approach to rules is mysterious at best (and murky at worst) to many SRLs.
It makes little sense to system users who have spent a great deal of time and effort trying to figure out just how to follow those rules to now be told, “well, it all depends…”
Same experiences, same questions – what are our answers?
We are witnessing a convergence of interests and challenges from both represented and self-represented parties using the courts. How do we address their (reasonable, politely Canadian, but insistent) questions?
How far can any of us go in offering:
- Genuine reassurance? (we really are listening)
- Plausible explanations? (this is why the rule has to be this way)
- Convincing justifications? (this is why a discretionary system is still fair)
Join the discussion. More later this week in the A2J Water Cooler blog