The Great Equalizer: Why Both Represented & Self-Represented Litigants are Asking the Same Questions about the A2J Crisis

The Great Equalizer: Why Both Represented & Self-Represented Litigants are Asking the Same Questions about the A2J Crisis

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

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Comments (4)

  • Colleen Nicholls Reply

    I’m a great believer in explaining “why” – I always want to know “why”. However, I have found that not everyone does – and it confuses a lot of people. If you are not well educated, or if English is not your first language, then it is hard enough to grasp the “what” – understanding the “why” is just too much.
    When we first started developing SRL materials, we put the “why” in the materials along with the steps to follow to make a court application. The instruction books were 20 – 30 pages long – and many, many people were so intimidated by the size, they wouldn’t even open them. Since then, I have realized that it is best to stick to “just the facts” in the written materials. If someone wants to ask me “why”, I’m happy to elaborate.

    March 18, 2014 at 3:08 pm
  • Guy Groulx Reply

    The problem with the justice system is not so much the lawyers but the judges who fail to follow the rules of the court and add an element of unpredictability to an already complex process. It is perfectly reasonable that the lawyer will not/can not reasonably predict an outcome if the judge trying the case does not follow the established rules of the court. I am involved in a civil action and for four years the Defendant contractor has steadfastly refused to disclose documents and I have had to submit motions five times and have received three court orders (2011, 2012, 2013) for production of basic records (tax returns, financial statements, etc..) which have yet to be respected. I have motioned four times that the statement of defence be struck in accordance with the rules of the court and the process continues…

    As long as judges continue to ignore the rules of the court, the justice system will continue to operate in crisis mode for both lawyers and self represented litigants. In my experience, albeit limited, the necessary first step is to establish clear court rules that must be respected with clear timelines for key steps in the legal process. Deviation from the rules and the timelines contained therein should be the exception requiring a motion with a valid reason for the deviation. This will go a long way to simplifying the court process and return some much needed stability to the legal process.

    May 19, 2014 at 12:38 am
  • Rob Harvie Reply

    As a 28 year family litigation lawyer, I more than appreciate and empathize with the frustration of SRL’s… and it’s no small secret that most family lawyers share many of the same frustrations. However to provide at least a modest response:

    1. “Explanations” – there are times when lawyers (including myself) are less than patient and do not fully explain the process to clients. No excuse, but there it is. However, at least as often, I have explained to have a client say, a week or two later, “why didn’t you tell me…” Clients often are so over-loaded by info and jargon that explanations do not necessarily get understood or recalled. My advice? As for things you want information on in writing (but do understand that the more in depth the explanation, the more your bill will be) there is not an easy balance for lawyer or client – we want to economize, but also what to be listened to and have questions answered – it’s a bit of catch-22. Also sometimes there is no simple answer – such as evidence must be under oath and cannot generally be based upon hearsay (third party told you) – except for several exceptions to that rule and except when a Judge accepts it (see discretion to not follow rules).

    2. “Listening” – failure for a lawyer to listen is unforgivable. Being curious and interested in a client’s situation is integral to serve their interests. What I THINK you want or need could be very different from what your priorities are. Beyond that, getting good instructions sometimes requires a lawyer to understand their client’s motivation even if it has nothing to do with the law – even if the response is “I’m sorry, but the Judge can’t make your ex be a good parent” – providing a touchstone of reality to a client may assist them in understanding the limitations of your ability to solve their issues – and may focus their instruction reducing the chances of later complaints about failure to deliver on their expectations. Beyond that – we’re all human beings, a little empathy and compassion isn’t too much to ask for from your lawyer.

    3. “Explaining Arbitrary Application of Rules” – I share your frustration in this regard – my best explanation, trying to be empathetic to the Judiciary – they are human beings trying to provide the perfect decision – and when it appears that a rule or precedent may impair them trying to make what they consider to be the “right” decision – they may bend or ignore precedent or rules – especially in family law. I personally understand but do not agree with that approach – but, again, there it is. IMHO better that the rules and laws are followed – even if unfair outcomes result – than for court to be seen as arbitrary or capricious – but when you are on the other side of that coin – well, YOU may be the one saying how wrong it is to lose your case based upon a “technicality”. You see, again, the Catch-22.

    Anyway – just a few thoughts – if nothing else, know that there are many many lawyers who would love to be able to more easily predict outcomes, costs, and timeframes – and we are working on trying to improve that- but the law is a large slow animal that does not change direction quickly – for reasons good and bad.

    October 23, 2014 at 11:56 pm
  • Rob Harvie Reply

    (I apologize for typos.. drafting on an IPad does have its limitations.. i.e. “hearsay” “good parent”.. lol.)

    October 24, 2014 at 2:00 pm

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