The Loneliness of the Self-Represented Litigant

When her case was called, Maria (not her real name) walked towards the front table in the courtroom and, anxiously shifting her papers, asked the judge if she could have her sister sit with her during the hearing. She explained that she could not take notes and listen to what was being said at the same time, and her sister could help her by taking notes for her. Maria said that she had become so overwhelmed the last time she appeared in court that she had started to cry, and felt humiliated getting so upset in public, in front of the people watching in the courtroom. If her sister could sit beside her, it would help her to stay calm and centred.

The judge said no. You have to make your own case, or go and get a lawyer.

But my sister would not speak, she would just take notes, Maria tried to explain.

The judge told her to stop talking and sit down.

*                                  *                                  *                                  *

Sahar (not her real name) attended a pre-hearing at the Licensing Appeal Tribunal. A pre-hearing is designed to define and narrow the disagreement and resolve issues before the hearing. Sahar faced two sets of counsel – the lawyers for the builder who built her home (which she alleged has defects) and a lawyer for the Tarion Warranty Corporation, the Ontario government agency responsible for developer accountability. Both had articling students with them taking notes. In addition, the builder was present, as was a field representative from Tarion. This meant that Sahar was facing six (trained and experienced) people. She was alone.

Sahar asked the adjudicator if someone could accompany her at the pre-hearing, just for moral support – they would not speak on her behalf. She said that she felt anxious and alone going up against trained legal experts in a complex matter that involved her life savings. The adjudicator said no. Sahar asked again, please, just for moral support – the adjudicator turned to counsel for the builder and asked if s/he agreed to this request. Counsel said no. The adjudicator told Sahar that she was not permitted to bring someone in with her because this was a pre-hearing and all the parties must agree to the procedure. Without the agreement of the other side, only “legal representatives” were allowed into the room. Sahar could not afford a lawyer.

Loneliness is a problem that we can do something about                                        

Self-represented litigants face many challenges.

So do the justice system professionals who work beside the self-represented every day in our courts and tribunals.

But one challenge that justice system professionals do not face is loneliness.

Since the beginning of my research 5 years ago, I have heard continuously from SRLs about their feelings of isolation and loneliness. The irony is that there are so many of them – but each one feels alone. That feeling is heightened when they face an array of professionals who are trained and experienced in the law.

Most SRLs need and want assistance with their cases, whether it is procedural, substantive or strategic. Most often they don’t receive it. Either they cannot afford legal assistance, or they don’t qualify for subsidized assistance, or that assistance is insufficient for their needs. Figuring out how to provide the expert assistance SRLs need and want is a complex challenge, implicating a variety of potential solutions, which this blog often discusses. At NSRLP we never pretend that this is a straightforward problem-and-solution.

But loneliness is a different matter.

All SRLs need a person to whom they can turn for emotional support. This support helps to reduce the loneliness.

A simple antidote to loneliness

Usually SRLs choose a friend or a family member to help support them – at least until they wear them out. This doesn’t usually cost them anything, but offers them a great deal (something mediators call a “cost-cutting solution”).

We know from the National Study that the point in the legal process where SRLs feel most lonely – and anxious, intimidated and fearful – is in hearings. This is the place that they most need – both psychologically and functionally – the support of another (albeit silent) person beside them.

Because remember, we are talking here about accompaniment by a person who does not address the court or participate in any way in the proceedings, whose role is to sit quietly, perhaps take notes, maybe keep the SRL’s books and notes in order, and perhaps occasionally pat them encouragingly on the forearm.

The two stories above – often repeated, and very typical – reflect the need for emotional support – perhaps with a little simple logistical assistance (note-taking, aides-mémoire debriefing after a hearing) thrown in. Yet it seems that we cannot even provide this in any consistent, principled, and humane way to SRLs.

What is the status quo regarding accompaniment by a friend?

At present, a variety of approaches and practices are used in Canadian courts and tribunals. There is no assumption or default to permitting a SRL to bring a friend with them to the front of the hearing room. Indeed, some rules make it difficult to permit a SRL to bring a friend (for example by requiring the consent of the opposing party). In most cases, there are no rules or guidelines at all – it is simply at the discretion of the presiding justice or master.

I am not questioning the importance of judicial control over the courtroom. But I do wonder why the general principle of allowing the accompaniment of a friend – much as physicians would do in an important meeting over a medical matter, for very similar reasons – is inconsistent with this prerogative.

Judicial control over the courtroom could be maintained with discretion to refuse, perhaps related to guidelines that would help the public to understand why, and when. Judicial control would continue of course throughout the hearing, meaning that permission could be rescinded if (for example) the friend was disruptive or tried to speak.

What then are the various objections to a SRL bringing a friend to sit with them, and how is each justified?

The Hard Line

• Only legal representatives (licensed by the Law Society) should be permitted to accompany individuals to hearings.

Justification: Anyone else will not obey the restrictions (not to participate) and could cause chaos in the courtroom. Or, judges only want to engage with lawyers and not with the public.

The Special Exceptions

• Friends and family should be permitted to accompany individuals only with the permission of the judge (but not as a default).

Justification: Since the judge should control who does what in the courtroom, any assumption of accompaniment, or guidelines or practice directions, would constrain that discretion.

• Friends and family should be permitted to accompany individuals only with the permission of the judge and the acquiescence of the other side.

Justification: Because allowing a person who is neither a party nor a legal representative to sit at the front table is “exceptional”, the other side must be asked to agree to this (rather than make an objection based on specified criteria such as the identity of the friend or relative).

• Only unpaid friends or family should be permitted to accompany individuals to hearings.

Justification: Anyone who is paid a fee (Has their parking reimbursed? Has their babysitter been paid for by the SRL? Is paid $60 an hour?) and who is not a lawyer or licensed paralegal is providing competitive services that are not accountable to the public (in the way that lawyers and paralegals are via formal codes of conduct).

Interrogating the objections and their justifications

Quite honestly – I really struggled to articulate a few of these justifications. Maybe I am missing something, but some of them seem a bit, well, feeble.

Especially when we balance them alongside the benefits and the simplicity of the solution here. We need to ask ourselves:

• Which, if any, of these objections and justifications override the need to offer – in all but exceptional circumstances – a humane alternative to a SRL sitting alone at the front of the court?

• Which of these objections and justifications are necessary (and when) in order to ensure or maintain the integrity of the justice system?

• Do any of these arguments outweigh the need for greater procedural certainty and consistency for SRLs as they prepare for a court hearing?

• And finally, are these objections and justifications based on the need to protect the courts from the presence of friends at the front table (however defined), or are they simply professional protectionism and/or convenient for legal professionals?

The impact of loneliness

We do not need to be trained psychologists to know what the experience of loneliness and isolation does to people.

• Loneliness affects our ability to think logically and rationally, and our accuracy of memory and recall (Ybarra, 2008)
• Loneliness lowers our levels of empathy (Cacioppo, 2009), which is related to our willingness to negotiate and compromise
• Loneliness can lead to hypertension and poor sleeping patterns (Cacioppo & Hawkley, 2003)
• Loneliness is associated with raised levels of stress (Cacioppo), which may be manifested as increased

A relatively simple reform that would make a big difference

There are many, many, complex, difficult and contentious aspects to justice reform in the 21^st century. Allowing a SRL to bring a person who is not a legal representative to sit beside them in the courtroom should not be one of them.

It would be a relatively simple reform to permit a friend or a family member to sit silently at the front table with a SRL in all but exceptional circumstances, subject to judicial discretion. And it would allow the justice system to show that it cares about SRLs and understands the stress they are under.

Innumerable SRLs with whom I have talked over the last 5 years describe an experience like the two stories at the start of this blog as a turning point in their faith in the legal system, and the start of their descent into mistrust, resentment and indignation at the system. Given our widely acknowledged Access to Justice crisis, we cannot afford to be squandering opportunities to enable individuals to feel that the system is at least trying to be fair – and humane – in its treatment of them.

Of course, allowing a SRL to bring a friend into the courtroom with them is not a panacea for the loneliness of the self-represented litigant – but it would be a simple and symbolic start.

• It would recognize the undeniable reality that ratcheting up isolation and stress for SRLs in hearings is counter-productive for everyone involved.
• It would be an acknowledgment that new norms and rules are needed for a new era in the courts.
• It would show that we really care about the users of the justice system.

Look for NSRLP’s new resource for SRLs on Choosing and Presenting a McKenzie Friend, coming soon.