The “Scourge” of Self-Representation?

Earlier this month, Canadian Lawyer magazine published an article (http://www.canadianlawyermag.com/4463/the-scourge-of-unrepresented-litigants.html) under this attention-grabbing headline. Attention-grabbing and to many – including myself, whose work was cited immediately under the headline, giving the impression that it reflected my research findings – offensive.

A “scourge” is a plague, an epidemic of something extremely unpleasant. So many other words could have been used:  the “phenomenon” of self-representation, the “rise” of self-representation, or even “the challenge”. Generalizing self-represented litigants as a “scourge” promotes a blatantly self-serving myth among certain segments of the legal profession – that people who represent themselves are being deeply unreasonable and presumably, like a scourge, need to be eliminated.

Alternatively, since two thirds of the article is actually about about the very particular and idiosyncratic group of self-represented litigants (OPCA’s) described in painstaking detail by Mr Justice John Rooke in his judgment in Meads, the headline could have accurately reflected this. Instead, the headline (as well as parts of the article) conflates the OPCA’s identified by Justice Rooke with all self-represented litigants – something I warned we might see in an earlier blog just after Meads.

This is not simply a matter of semantics, or a minor journalistic slip-up. It is critically important that the magazine of the legal establishment begin to get its facts right. OPCA’s are a tiny fragment of the growing numbers of ordinary, perfectly sane, and increasingly desperate self-represented litigants we see in family and civil court across Canada.

It is time for the legal establishment to spend even a fraction of the time and ink that has been spilled over Meads (important though it is) trying to understand why more and more reasonable and hardworking people wind up self-representing, and the extent of the negative impact on them. Then we might make some real progress towards  “access to justice.” And this mantra may feel less like mere lip service to many self-represented litigants.

Let’s try a metaphor (based on the stories of 270 self-represented litigants whom I have interviewed in the past year). Imagine you are trapped on an island that is sinking into the ocean (OK, you need a good imagination, but work with me here). The mainland is about a mile away, through choppy waters. The only boat available – the “Lee Gal Rep” – turned back halfway because the captain said he needed more money than you could afford to continue the journey. You can’t swim – and the only swim instructor on the island left last week. In any case you heard that the lessons were really expensive, so you couldn’t have afforded them anyway.

Scavenging on the beach, you find an old life jacket and strap yourself in. Faced with no better choice, you plunge into the water. For the next hour you swallow copious amounts of salt water and are several times terrified by the prospect of nearly drowning.

Finally you reach the mainland. You notice that there are many other people lying on the beach in various states of exhaustion. How do you then feel about the nicely dressed person who greets you by asking quizzically and with a exasperated expression – “But why didn’t learn to swim properly before you left the island?”

Comments – and expansions and modifications to the metaphor – are welcome.