Shifting the Burden

It is common, when the question is raised of how to best respond to the influx of self-represented litigants (“SRL”) in court and other legal proceedings, to see the issue described as a challenge or burden upon the profession. Verbs used to describe the response of lawyers or judges to the SRL often include words like “manage” or “survive” and others that carry similar connotations of a problem in need of a solution.

But the SRL is not a problem; self-representing litigants are rather a symptom of a complex bundle of problems in the design and functioning of our legal systems. In many places across Canada, the SRL unfairly bears the burden of that dysfunction and is forced to adapt to a system that struggles to accommodate them.

The SRL has unfortunately become typecast as a disgruntled and, often incorrigible problem to be solved by those within the legal profession. While few reach the extremes identified in the now infamous decision in Meads v. Meads (2012 ABQB 571), discussed by Simon Fodden in Meads v. Meads, The Vexatious Litigants Case, I share the concern raised by Julie MacFarlane in her comment to that post:

My fear is that Justice Rooke’s meticulously researched judgment will be used to conflate OPCA’s with the large number of ordinary, overwhelmed and often traumatized self reps who are struggling to navigate the system.

In my experience, those who represent themselves are more commonly like those described in MacFarlane’s Final Report from the Representing Yourself in a Legal Process project. They are frustrated by the process, often unable to afford to retain or continue to retain counsel, confused by the rules and the procedures, working hard to enforce their rights and tired of being disrespected by those within the system.

When viewed only as a burden on the system, it’s easy to blame the SRL for their contribution to the challenges currently facing courts and legal systems. But when you speak with those who are representing themselves about the challenges and obstacles they face in that process, it soon becomes obvious that the burden needs to shift to the system itself.

Today, I spent time with a group of self-representing women at a community resource centre talking about what they need to know when representing themselves in legal processes. We talked about reasons why they are representing themselves and I provided them with an outline of the limited resources specifically available for SRLs in Manitoba. We talked about what they can expect from courts in Manitoba, based on recent decisions, as well as what they can expect from lawyers and why.

I asked them what message they would have for lawyers and the legal system about what they need as a self-representing litigant. Their responses merit thoughtful consideration and include the following comments:

  • Respect me.
  • Don’t set up a combative atmosphere. Encourage problem-solving win/win solutions
  • You don’t know me or my situation yet you degrade me and my situation on behalf of your client.
  • Do not ask me questions designed to embarrass me during court. It does not work to make me say something stupid – stick to the point – it is more professional.
  • Do not try to recess court time and get a delay – my time is valuable too.
  • My message to lawyers is to show respect to everyone in the room.

These women reminded me that although the law says that fairness is to be the touchstone in dealings with self-represented litigants, more often than not, the self-representing litigant is disappointed by the legal system’s response to their presence in the courtroom. Through their eyes, there is no fairness in a system that appears to them to favour those with the most connections and the most resources.

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Comments

  1. Great post, and a good reminder to everyone working “inside” the system.