Originally published on The Lawyer’s Daily on December 21, 2020, today’s post is written by Jeff Rose-Martland, a self-represented litigant, citizen advocate and member of the Advisory Board of the National Self-Represented Litigants Project.
In her article “Self-Represented or unrepresented?” (The Lawyer’s Daily), lawyer Pamela Cross takes on the issue of people-without-lawyers in the justice system.
Before proceeding further, I acknowledge that I’m going to be speaking in broad terms about the legal system. I am fully aware of — and thankful for — the broad range of judges, lawyers, paralegals, academics, clerks and registrars, and other professionals who are working hard to assist us self-reps. I am clearly not intending to lump you in with the rest but speaking to the big picture requires generalizations. Besides, Cross started it.
Cross is right in saying no one asked us how we wish to be referenced. The label “self-represented litigant” is industry jargon. By the time we absorb what a “litigant” is, we’ve already been one for a while and have more pressing concerns.
Self-represented litigant is just another legal term we’ve had to absorb, along with “plaintiff,” “respondent,” “interlocutory application,” and the rest. Self-represented litigant is the least offensive on a list of mostly dismissive or contemptuous terms, including “unlearned friend.”
Cross goes to some lengths to divide us up. One group, Cross maintains, are men who go lawyer-less to further abuse their partners. Given the steep learning curve that any self-represented litigant faces, I find it doubtful that any lay individual could master the legal system enough to bend the law into a scourge and wield it effectively.
I won’t debate that point further, except to say that basing any conclusions upon the impressions of one group of people as to the motivations of another group of people is inherently unsound — even if they are judges.
Cross identifies two kinds of SRLs: those who cannot get a lawyer, and those who choose not to get a lawyer. She correctly identifies that operating pro se presents an access to justice issue. However, Cross clearly feels that one group is facing an issue of justice, while the other presents an access issue, in that those who choose to go it alone should perhaps be denied access, period. After all, those people are abusing and draining the legal system.
But whatever is to be done, Cross is clear that it is the lawyers and judges who must decide, preferably before self-reps even begin: “To ensure that our possible solutions are the right ones, we must name the problem correctly. For me, that starts with distinguishing in our language between litigants who self-represent and those who are unrepresented.”
And there’s that word. The word that sums up how self-represented litigants are treated by the legal system: problem.
People without lawyers are a problem to be addressed. Something to overcome. An obstacle, a hindrance, an inconvenience. A challenge to the legal system. A predicament for the courts. A humongous green dilemma, with a rack big enough for children to climb. Something to be hunted by the servants of Justitia and brought down before the Blind Lady takes notice. After all, She shouldn’t be disturbed by such a beast as an unlearned, unaccompanied, and above all, unworthy individual.
Cross’ clarion call to her colleagues reveals the legal profession’s true motive: control. Self-represented litigants must be identified, quantified, categorized and dispensed with; the only permissible access to justice is through the bar. People can’t be permitted to just wander in off the streets and demand justice; that would be chaos and anarchy. Only the official gatekeepers in the legal system can decide who gets access to justice and how.
Cross is echoing the message self-reps receive over and over: only lawyers belong before the court. Anyone else is a problem. If we cannot obtain counsel, something must be done to get us counsel. If we choose not to have a lawyer, then we are abusing the system and draining resources.
People-without-lawyers are told, over and over, that we should get one. Even when we’ve explained why we don’t have a lawyer, we are told to get one. Even when obtaining counsel is impossible, we are still told to get one. Judges, opposing lawyers, duty counsel, registrars, clerks… all repeat that message: you shouldn’t be here unaccompanied. You don’t belong.
It doesn’t matter that Cross empathizes with people who cannot get representation. Nor that she really wants to improve circumstances for self-reps. Nor that she sees the massive injustice that arises for most of us. Does she feel for us? Yes. But a condescending hand up is just as bad as the contemptuous kick down. Her feelings don’t change the fact that Cross is calling upon her fellow Star-Bellied Sneetches to decide who is worthy of strolling the beaches (from The Sneetches & Other Stories by Dr. Seuss (Theodor Seuss Geisel), 1961).
That’s the real problem here. It’s not un-lawyers in the halls. It is a legal industry that has lost the purpose of the law. A legal industry so far removed from its roots, so insular and elitist, that it labels any outsider a problem.
From there, it is a very quick hop to using the arcane and often impenetrable rules of court to dispose of we-without-counsel, to unfairly branding self-reps as vexatious, to granting summary judgments against the unlawyered to dispense matters unheard. All things that have occurred, spawning many appeals. Who’s hampering justice there?
Some of you may remember this fact from first-year law. I remember it from high school. It appears in every summary description of common law. It has been at the foundation of the legal system for hundreds of years: the right of every individual to appear at court, present their case and obtain justice.
Every individual.
Not just those who can afford lawyers.
Not only lawyers.
Every. Single. Person.
The people seeking justice are not the problem. It is those blocking them from obtaining it that are the problem. People are not outsiders to the law, we are its foundation. Remove us and the structure collapses. It is not for the legal profession to determine what role we have in the justice system. Our right to participate is both inherent and supported by centuries of law.
The law was not created so that lawyers can have prestigious, well-paying jobs. It isn’t a fraternal organization where one has to be initiated to even enter the building. It isn’t an exclusive sport for rich folk. The legal profession exists to facilitate justice by serving people. It is a service industry.
But if lawyers refuse work by making themselves unaffordable and unavailable, then it becomes self-serve. If lawyers continue pricing themselves out of the market, they may very well wind up alongside gas jockeys, bag boys, elevator operators and other obsolete service positions.
Presented with a choice between Do-It-Yourself Lawyering or Do-Without-Justice, I chose to champion myself. That is the challenge every self-rep has taken up. We don’t really have a choice but to dive in; our matters are personal. We all accept that we may lose, but giving up isn’t an option.
I don’t really care what Cross wants to call me. I know what I am. I am not an abuser, manipulating the courts to my own evil ends. I am not a vexatious time waster draining away resources. I am not a barrier to job satisfaction, an obstacle to climb or a gulf to span. I am not sand in the gears of the wheels of justice. I am not incidental to the legal process, a side effect, an irrelevancy, or a punchline.
I am a patron of justice.
So well said! I have passed through the mirage of being self represented to now being unrepresented. I finally realize I don’t have what it takes to overcome being a minor inconvenience to the court system. With a few simple sharp decisions I am steam rollered over by the entire system that effectively denies me access. I am stamped out for daring to ask for equality. But worse, money buys justice. And I don’t have it.
So the bad guys win and an archaic system lives on to oppress the very people it was meant to champion.
I won’t go away. They are stuck with me until I get access. My best to all unrepresented who dare to keep going.
Great article. Wow.
IN MY CASE, MY OPPOSITION WAS REPRESENTED. And their claim was i was pursuing him for child support because i was abusing him. and abusing the law etc etc. I was self represented. I have found a communication in my stack of papers, that said,, “she is so desperate to prove he is her daughters father, that she will send samples in claiming them to be her or her daughter, when it is a lie. ” No one said this to my face,, i would simply have brought in the chain of custody, or had it done again,, with one, no,, i am not desperate to prove that. I am desperate to obtain justice. And since i know this man to be my childs father, that will be justice. I know we have been in a time, where if someone of position told you what you should believe, think , accept as real etc etc. we are supposed to abandon our own knowledge,, and accept theirs However, I actually rely on my own eyes, my own ears, and my brain. which contains all of my own memories. I do not rely on anyone else’s brain, eyes or ears. So,, if you tell me something that i know is not true. good luck trying to get me to swallow it. This back stabbing slander used against me, was accepted by almost everyone. It is a practice called GASLIGHTING. It attempts to make you believe whatever you are told,, not what you know. It is abuse. That is how our courts are operating these days, by gaslighting abusive behavior, that apparently, you HAD BETTER FALL IN LINE WITH!!! or you will be ordered out of court, termed vexatious and banned from ever coming back. How is that for abuse.
We keep leaving out the “insiders” who are unworthy, untrustworthy, unfit for the public office, outright dishonest, outright incompetent and all these are those who find case law inconvenient. They make OUR (not theirs) again OUR courtrooms SCAM ROOMS and our court houses SCAM HOUSES. Most frighteningly they operate as one wolf pack who have life time appointments that they abuse. How doe deal with them? How do we remove them? They are putting justice and our justice system in DISREPUTE and we are help less getting them removed from the privilege we give tot hem that the treat as divine right
Fellow SRLs I am ready to form our group so our voice can be heard. Simply let me know who is interested to come into group of SRLS to give us a voice NOT a group to over throw anything or anybody and not to form a political party. Just a group to voice our concerns and force government to hear us and protect our rights to access to justice even for those whose experience lets them not trust insiders
I’m in! But I’m exhausted. Not sure how I could help.
i am in too,, i have PTSD from all of this,, but i am in!
That is so well put that I’m hesitant to disturb it with a comment.
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I’d even recommend that every SRL from now on should present that statement to any adjudicator they are facing.
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I will add something though. Over the course of more than ten years I appeared a number of times as an SRL at the Vancouver Courthouse before Supreme Court and Court of Appeal judges. I also appeared twice as an SRL in front of Provincial Court judges. I’ve tried to assist other people and have heard from a considerable number of people who’ve pursued similar legal issues (meaning either labour law or challenging government entities).
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Biases are deeply entrenched in the system and not being acknowledged. Interestingly, given that Mr. Rose-Martland’s piece was first featured in The Lawyer’s Daily, I note another piece published there yesterday written by a lawyer who describes herself as a member of the defence bar. In the article found at this link – https://www.thelawyersdaily.ca/articles/23854 – she has some interesting things to say about Crown Counsel and privilege. In December she had contributed the article found at https://www.thelawyersdaily.ca/articles/22964 on a similar theme. In my two appearances before Provincial Court judges and one of those before a B.C. Supreme Court justice I was contending with Crown Counsel – because I wanted to see charges laid against certain government lawyers. What those experiences suggested to me was that the process of what they call “private informations” is accessible in theory only. To say that I wasn’t favourably impressed by the conduct of the judges or crown counsel in those instances would be an understatement.
i note that you are here in BC as well. I need to present new evidence to the supreme court of BC,, out in chilliwack. i have tried again to hire a lawyer, she again, took my money and walked. I would appreciate some information on what form to use, and what level of court to submit it to. It has to do with dna testing and its evidence standards not being followed at all. Since i cannot get someone to do it, it looks like again,,, it is up to me. If you have any information on how to go about doing this,, please let me know.
thank you
sandra
i need to appeal my vexatious designation. I need help preparing the documents to do so. I can present them myself. I do however need help preparing them, if there is anyone you know of, with experience with the appeal court, and knows how to use jonnson vs lymer, it would be helpful if you passed my name on to them,, or vice versa. I am in chilliwack BC, but as the advent of zoom has made distance not an issue, anyone anywhere in BC, would be helpful. Thank you
I cannot present arguments with the level of eloquence displayed by Mr. Rose-Martland, but I have an idea that I think deserves to be presented with that kind of clarity.
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My guess is that at least some of the members of the legal establishment have some understanding of certain fundamental reasons for the lack of access to justice that never get discussed. We tend to acquiesce to the experts’ determination of what can be discussed, what ideas can be proposed.
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One of those fundamental problems – and it might be THE key one – is what I’m now calling “Court Capture”. I didn’t coin that term. It is the title of a Boston College Law Review article published in 2018. The link is – https://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=3683&context=bclr . Yesterday I contributed a comment about it to a post at slaw.ca. That link is – http://www.slaw.ca/2021/02/04/understanding-the-need-for-more-evidence-based-decision-making-in-the-legal-sector-and-how-we-get-there/ .
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I hope some other SRLs and some members of the Canadian legal establishment take the time to read that law journal article. There may well be more to glean from it than I have found so far. It doesn’t seem that the author had in mind the wide application of the concept of “court capture” that I have in mind. I had done some reading previously on the subject of “regulatory capture” and I am of the view that I am encountering that problem (which might also be called “institutional capture”) with virtually every agency I approach, including most recently the B.C. office of the Ombudsperson. It isn’t a hard concept to get one’s mind around. I’d even suggest that the simplicity of the idea has tended to discourage its wider take-up.
Regulatory / court / institutional capture is what I so often see other SRLs complain about in their specific experiences, but the literature on regulatory capture provides a basis for understanding it and then presenting it as an argument in litigation. If anyone feels some reluctance to present it as an argument before an adjudicator, I’d say just think about that. That would mean you are afraid that a suggestion of inherent bias will elicit a hostile response.
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We need to see some tribunal and court decisions that respond to that argument. What is there so far? There’s little or no history of even academic discussion of “court capture”, but there is quite an extensive record of academic discussion of “regulatory capture” (which I now suspect is circumscribed). Checking on CanLII I found that the term appears in 48 documents in CanLIIDocs, but in only two decisions, one issued in 2011 by the Quebec Court of Appeal and the other one issued last September by Ontario’s Health Professions Appeal and Review Board – https://www.canlii.org/en/on/onhparb/doc/2020/2020canlii63301/2020canlii63301.html . It would appear then that no one has made a serious attempt to argue regulatory (or court) capture. Or if someone has, it isn’t reflected in any decisions.
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I certainly would have presented the argument when I was in court, if I’d had the vocabulary, the understanding that I now have. But I’m not anticipating being in court again. I hope some other people will see what I see and decide to put the argument on the record in a tribunal or court case.
it seems i am going to have to file a leave to appeal,, a notice of appeal and supporting affidavit and evidence, myself, i will be appealing my vexatious ruling, and introducing new evidence that was not available at the time of the hearing, suggesting that the dna evidence in my case was wrong, Actually,, it says it. I really could use some help if anyone has any free time to do that. I was told by this lawyer who just was relieved of her job, that i could not appeal for many reasons, first of all, jonsson vs lymer does not apply at all,, no reason was given, And that the court does not care if the evidence was wrong, they only care about my being vexatious. i abused the court,… so never come back. Has any one else ever been told anything like this?? oh,, also,, no appeal is ever allowed for any reason after 30 days, no matter what, how about that|?? anyone else ever hear that?