Working With, Not Against the Public: A New Year Manifesto for the NSRLPNSRLP
As 2016 drew to a close, we heard a lot of angst and analysis about the seismic events of the year. And yes – this was going on in my household too.
I had looked on in disbelief as my home country voted in June to leave the European Union – falling prey to deeply rooted fears of immigrants and apparent nostalgia for the days of Empire. Then in November we watched as the U.S. – where I have family, and a home – elected Donald Trump as President in a roar of “anti-elitism”.
I have been thinking a lot about what the various analyses of these developments may mean for our work at NSRLP as we try to bring forward the voices of the public in Access to Justice reform.
“Anti-elitism” and the work of the NSRLP
Much has been made of the pushback among those who used their vote for Brexit and Trump as a vote against “elitism”, characterised as those with power, education and privilege.
The premise of “anti-elitism” seems to be twofold: that those with special knowledge and experience are unable to communicate meaningfully with the public; and that the public is averse to much reading, has a vocabulary of 100 words or less, an attention span of seconds for any “policy” or “plan”, and is interested only in being entertained, in politics as theatre, and not in making informed decisions.
Certainly many self-represented litigants feel that they are pushing back against elitism – specifically against the many cultural barriers erected by those used to being “in charge” in these spaces, and operating without the unwelcome intrusion of the public. And while we are seeing more and more effective – often technology-aided – work on meaningful public legal education, there is an enormous amount of work still to be done to make the legal system welcoming and accessible instead of hostile and exclusionary.
But the other part of the “anti-elitism” analysis is simply irreconcilable with what we have learned at NSRLP for the last four years from working with thousands of self-represented litigants. We know that members of the public who find themselves representing themselves care a great deal about educating themselves on how to use the legal system, are in many cases very capable learners, and are driven by a lot more than the “entertainment” of self-representation. This is not a game for them – it is serious.
Its extraordinarily hard to navigate a complex and arcane legal system, especially when your own vested interests are at stake – but ordinary people from a range of educational backgrounds do it every day. They do so by excavating all the information, knowledge and experience they possibly can from every available source.
So I don’t accept the infantilization of the public or the anti-intellectualism that the “revolution against elitism” explanation trots out. Public voices are so much more intelligent, motivated and deserving of respect than this. Our NSRLP Resources for SRLs are aimed at an intelligent, resilient, resourceful population.
When people are left with no alternative but to take care of themselves, they are far more capable than we dare imagine. I have learned this over and over at NSRLP, and it has given me so much respect for those who don a cloak of disadvantage (no legal training) and wear it with pride.
Looking Forward: 2017 at NSRLP
An issue that has come to the fore at NSRLP over the past few months is the pushback against self-represented litigants – whose real struggles are now more widely recognized than ever before. This pushback comes from parts of a legal establishment who still desperately hope that everything is going to “go back to normal”.
This is evident in the fixation of some of our court and provincial rules committees on how to penalize self-represented litigants and limit their participation in the courts – by imposing punitive costs awards against them, making appeals more difficult (for example, Rule 1.2 (2) introduced in 2014 in Alberta);
written summary judgment procedures to dismiss their cases (Ontario Rules of Civil Procedure, RRO 1990, Reg 194, rule 2.1); and a tranche of new procedures to remove them from the courts by characterising them as “vexatious litigants” (for example, “Federal judges take steps to curb nuisance lawsuits”).
At NSRLP we have and shall continue to acknowledge over and over that yes, a few litigants are mischievously misusing the court process. But the analysis that SRLs should be “beaten back” by a defensive legal establishment contains three major errors that require recognition and correction. We shall be working on addressing these this coming year, via a number of research and awareness projects.
- The numbers. A focus on bizarre groups like the “freeman on the land” (a US originated phenomenon) distorts the real picture. Litigants whose goal it is to sow chaos and challenge the legitimacy and authority of the courts are a tiny fraction of those who come as SRLs (even in Alberta, where they are most evident). While their adventures make the best tabloid fodder as ‘celebrity SRLs” (for example, “Vexatious litigant continues to have her days in court”), their antics distort the real picture. There is a continuing problem of conflation between genuinely marginal SRLs and ordinary people stumbling through the courts.
- The assumption of intentionality. Again and again, we encounter the assumption that SRLs are intentionally abusing the court system. But intentionality implies control – and SRLs rarely feel in control. A SRL who names multiple defendants is frequently regarded by system insiders as vengeful and out-of-control – but some SRLs just believe (perhaps having watched too many TV dramas) that this is simply the best thing to do to protect their interests in an uneven contest. Similarly, self-represented parties who file long and (to a legal eye) rambling and repetitive briefs are not deliberately trying to waste court time – the explanation is far simpler. They are looking up as many different arguments as they can amass from a range of sources online.
- Insider evaluations of the behaviour of self-represented litigants are usually made through the prism of expertise. The reasonable justification of ensuring the efficiency of the courts (the Hyrniak  1 S.C.R. 87 principle) can be used to explain almost any rule or action that reduces the visibility of SRLs. The risk here is that imposing an efficiency model developed without public input will find almost every SRL wanting. It’s not that efficiency is a bad principle, of course – the problem is how we understand and implement it. If the required “efficiency” it is only attainable in practice by an elite with extensive education in law and procedure, that is a problem.
The combined effect of these forces is to create a sort of “welfare queen” model of SRLs, in which the very worst characteristics of the most marginal are conflated with ordinary SRLs trying to navigate the system as best they can without affordable legal assistance (another of our major projects this year will focus on developing a mainstream model of affordable legal coaching, with the formidable Nikki Gershbain at the helm).
Over the last four years, NSRLP has made some progress in exposing the inaccuracy of the old, tired stereotype of SRLs as crazy wannabe lawyers. A major goal for 2017 is to highlight – through case law research, case studies, and an upcoming podcast series – the real stories of SRLs. These demonstrate the continuing misperceptions and errors about intentionally bad SRL behaviour that are consuming time and energy needed for real Access to Justice reforms.