Self-Represented Litigants’ Response to “the Rights and Responsibilities of Self-Represented Litigants”

In my 28 August 2015 post, “The Rights and Responsibilities of Self-represented Litigants,” I reproduced a document intended to sketch out, like the name suggests, the reasonable expectations that litigants without counsel should have as they make their way through the legal system, and their concurrent obligation to attempt to acquire a reasonable understanding of legal processes. This caught the eye of Julie Macfarlane, professor at the University of Windsor and director of the National Self-Represented Litigants Project, who arranged for the document to be reviewed and commented open by a number of the self-represented individuals who have been involved in the NSRLP in the past.

This post presents Allie Wright‘s analysis of the responses provided to Julie. Allie is the Coordinator of Alberta-Based Research Projects at the Canadian Research Institute for Law and the Family, the organization that I presently direct. I appreciate the time Allie has spent reviewing these responses and am grateful to be able to present her conclusions. Thanks also to Julie and to Sue Rice of the NSRLP.


 

Self-Represented Litigants’ Response to “The Rights and Responsibilities of Self-Represented Litigants”

by Alysia Wright, MSW

John-Paul Boyd wrote The Rights and Responsibilities of Self-Represented Litigants in order to educate self-represented litigants about what they should be able to expect from the judges, court staff and lawyers they will encounter during the litigation process. “Self-represented” means that a person involved in a court proceeding is not represented by a lawyer; self-represented litigants (SRLs) have a responsibility to themselves and to the court to be prepared and knowledgeable knowledgeable about their case, the law and court processes.

In the summer of 2015, the National Self-Represented Litigants Project distributed Boyd’s guide to a number of SLRs previously involved in its work. The SRLs were asked to answer three questions:

  • What do you especially like about the Rights & Responsibilities guide?
  • What do you not like?
  • What do you think is missing?

Four SRLs provided their feedback to the National Self-Represented Litigants Project. The following is a brief discussion of the feedback provided, and recommendations for future iterations of the document.

All of the SRLs who reviewed the document agreed that it was helpful and insightful. Two respondents recognized that it is important to define self-representation at the onset of the document, including why self-representation is a right. Respondents said that document was easy to read and had helpful definitions of legal terms, such as the difference between legal advice and legal information. While respondents said that the language of the document was clear, they also wanted more definitions of legal words and phrases, such as the terms “advice” and “information,” and a clearer understanding of the role of court staff.

Some respondents said that this document seemed like the missing piece of the puzzle for SRLs, primarily because it helps to set realistic expectations. There was also consensus among respondents that SRLs are often unprepared to navigate the legal system and may attempt to get help from the wrong places, like asking court staff or even opposing counsel for guidance or clarification. SRLs said that having something written down gave them a sense of control over the process.

Three SRLs said that the document is a good guide but it is unenforceable. Consequently, they questioned the weight that it would actually carry in the court system. One respondent went on to say the document was theoretical and does not accurately reflect the attitudes of most judges and lawyers. Other respondents shared this view, and said that SRLs should be cautious about implicitly trusting that judges and lawyers will always give good information to SRLs. Respondents’ answers reflected general distrust in the legal system and the professionals within it, which undermines the ability of SRLs to operate equally within the legal system. In fact, Boyd suggests that the legal system should be navigable by the litigants within it and not just legal professionals; the attitudes reflected in the responses is suggestive of a lack of control over their own case and a healthy cynicism towards trusting the information provided by judges and lawyers.

Another point made by respondents is that SRLs are expected to handle their case without the assistance of counsel, meaning that they should not be interacting with opposing counsel, such as requesting advice or information from them. One respondent noted that it could be incredibly frustrating for a represented client to have their lawyer spending billable time giving information or advice to the SRL, especially because the represented client is saddled with the final bill. As pointed out in the Boyd’s guide, SRLs should be encouraged and supported by legal clinics or private consultation with a lawyer should they have a challenge they cannot meet on their own.

These concerns speak to a larger issue of the relative inaccessibility of the court system. The fact that SRLs require assistance indicates that the complex nature of the legal system has become restrictive and does not ideally allow for self-representation. Despite this challenge, SRLs agreed that it is important to understand that they have the obligation to prepare their case and that they will not get favorable treatment because of their lack of counsel. This includes being prepared to provide admissible evidence and being knowledgeable about the rules of the court. They cannot just “present their story to the judge,” as one respondent points out. SRLs have a responsibility to be informed and proceed appropriately, a fact some respondents wanted made clearer.

When asked what was missing, all respondents said that they wanted the document to talk about the reality of the court system and what practical situations a SRL may find themselves in and how to address it. A glossary of legal terms would also be quite helpful. Two respondents suggested that a directory of court staff and judicial officers would also help SRLs identify whom to approach for different types of help. Another respondent suggested that a streamlined concerns and complaints forum would help SRLs’ voices heard in the court system; one person said that it seemed like their complaint went nowhere and that there was no way for him or her to follow-up.

Overall, respondent SRLs found that having a guide about what to expect during the court process was helpful. Some respondents suggested that a more formal approach about regulating the rights and responsibilities of SRLs may positively influence the SRL experience. Despite critical comments around the enforceability of this document, most respondents were satisfied that it was brief, concise and provided a comprehensive overview of the representation process. While all respondents had suggestions for improvement, the general consensus among respondents was that SRLs need resources such as this in order to be better prepared for their legal proceedings and that Boyd’s guide may also assist potential SRLs in their decision to self-represent.

Comments

  1. Having given all this a bit of thought since it was posted, I’ve concluded that something that might also help everyone in an SRL situation – judges, opposing lawyers, and SRLs themselves – is to make a list of what responsibilities an SRL does not have relative to a lawyer. Officer of the Court status and professional ethics put a certain set of expectations on lawyers, but SRLs are not officers of the court. So there must be things that lawyers have to do that an SRL does not, or maybe there are things an SRL can do that lawyers cannot. Sometimes resolving conflict is just a matter of clarifying expectations.

  2. Karen, I think it would be more helpful if the requirements we have are actually enforced. It has been my experience that SRLs are rarely held to any standards whatsoever (and only then when they have had more than their fair number of chances to obey), but counsel are held to even tighter standards then when they are facing other counsel.

    In short, yet another damnèd rulebook when only one side is held to the rules doesn’t serve any purpose. Indeed, as counsel I can guarantee you that I would dislike and resent yet another set of burdens placed on my client(s) and I, and my clients would loathe to pay for yet even more of my time and effort. You have no idea about how much it destroys an honest (represented) person’s faith in the judicial system when they see that they have to obey court orders but their SRL opponent doesn’t, that they have to pay court costs, but their SRL opponent doesn’t, that they have to be ready for court on an appointed day, but their SRL opponent doesn’t, that their counsel will be held to the smallest technicalities and the strictest reading of the rules but none of even the most important Rules are applied to the SRL.

    Any lawyer opposite SRLs has experienced this. I have listened to the voice of one of the calmest counsel I have ever known vibrate with anger when it was recently discussed. I believe that the Bench is either unaware of or not paying attention to just how angry the Bar and their clients are getting about this double standard. Moreover, when the Bench does notice the systemic problems it tends to focus only on what counsel can do about it: CJC McLachlin’s recent speech to the CBA is an excellent example of that “the system has lots of problems, and it’s the joint problem and fault of the Bench, Bar, and Court Administration … but let’s JUST talk about the lawyers” mindset.

  3. David, your comment prompted me to wonder what kind of litigation you do. I assumed it would be mostly family law. What I see online says it is “small business law, wills and estates, commercial tenancies, and landlord-side residential tenancy”.

    I can easily imagine that in such litigation – wills and estates, and tenancy for example – you face SRL’s who do receive consideration from the bench beyond what is reasonable, or certainly what you would see as reasonable.

    Assuming that your complaint is legitimate, I would suggest that it is not incompatible with my complaint: which is largely about the treatment SRL’s endure when they have a meritorious case and are facing overwhelming odds in parties that have effectively unlimited budgets (governments, for example) and connections to, among others, the judicial community.

    That is a reality that no one in the legal profession wants to talk about.

    So, if your complaint and mine are both reasonable, what does that say? It says the system is fundamentally broken. That the basic principals that everyone claims underlie it are not there at all.

    Is there a way forward? I maintain that there is, but no one in the legal establishment is ready to talk about it yet. That day will come. Hopefully while I’m still alive.

  4. My “Rights and Responsibilities of Self-Represented Litigants,” the document that was the subject of the evaluation described in this post, was primarily intended to give litigants without counsel a bit of a reality check by describing the expectations such litigants should have of the court staff, lawyers and judges they’ll be dealing with, and also by describing litigants’ responsibility to inform themselves of the laws and rules of process and procedure applicable to their cases. It was intended to empower litigants as much as it was intended to remind litigants of their obligations as participants in the justice system.

    The document described only the existing responsibilities of lawyers and purported to impose no additional burdens beyond those to which we are already subject under the various codes of conduct. I wrote that:

    1. You should expect to be treated with respect and courtesy by the other party’s lawyer.

    2. You should expect to have your emails, letters and telephone calls to the other party’s lawyer returned reasonably promptly.

    3. You should expect the lawyer to keep his or her word.

    With the greatest of respect to the views of other commentators, I cannot see how any of these responsibilities are controversial or could be characterized as imposing a burden on either counsel or client. They are nothing more than the fundamentals of professional courtesy.

    On the responsibilities of judges, the document described only the duties and obligations discussed in the case law. I wrote that:

    1. You should expect the judge to treat you with respect and courtesy.

    2. You should expect the judge to give you basic information about court procedures when you need it.

    3. You should expect the judge to follow the rules of court and the law.

    4. You should expect the judge to give you a fair hearing.

    With the greatest of respect again to the views of other commentators, #1 is a matter of basic civility and #3 and #4 are bedrock obligations underpinning due process and fundamental justice.

    Although #2 doubtless provokes frustration on occasion, it extends to litigants the same assistance we would expect the court to provide to articled students and junior counsel and is limited in any event by judge’s duty to remain impartial and apply the law equally to both parties. In my humble and likely mistaken view, modern disclosure and production requirements combine with the open publication of case law and the rules of court to make litigation a game in which all the cards are on the table and neither side has any advantage over the other save those offered by the law and the facts of the case, the availability of funding and the experience and knowledge of counsel. “Basic information about court procedures” is a shared resource to which all litigants are entitled, represented by counsel or not.

  5. Mr. Budgell’s own use of the legal process could be a case study in the difficulties the legal system faces in accommodating self-represented litigants.

    The termination of Mr. Budgell’s short-lived employment in 1999 has led to over 13 years of legal proceedings instigated by Mr. Budgell, including allegations of bias against members of the BC Labour Relations Board (which were noted as being without merit), a Statement of Claim against the BC Attorney General (and others) which was dismissed as an abuse of process, and the attempted swearing of two informations against a vice chair of the BC LRB (which the court found there was no evidence to support).

    13 years of legal proceedings arising from a grievance arbitration – meant to be a forum for the expedited and cost-effective resolution of labour relations disputes.

    http://www.canlii.org/en/bc/bcsc/doc/2012/2012bcsc1302/2012bcsc1302.html

  6. I’ve only just now found the previous comment by “Evan”, someone – no doubt a lawyer – who is equipped with the all too common prejudice against SRL’s – at least the ones who won’t quit. I have indeed brought allegations against adjudicators – judicial and quasi-judicial – and other individuals and agencies. And I am continuing to pursue every one of the issues I’ve identified.

    I don’t expect I will ever be put on one of those lists of “vexatious litigants” that are a mechanism for a general denial of access to the courts. That’s because it is evident to anyone prepared to thoroughly review the record that the characterization cannot be made to fit me. Earlier this month I initiated yet another formal action, not in the courts but with an agency that is empowered by statute to conduct inquiries. This agency has a backlog of “complaints” such that it won’t likely look at the one I’ve submitted for about another two months, and then there will be some preliminary three-way communications before a decision will be made to conduct an inquiry. The respondent is the BC Labour Relations Board. I’ve been to this other agency once before and did not get from the inquiry what I was seeking. This time I expect I will. Perhaps some people will be interested in what I am leveraging this time: the FOI regime.

  7. Mr. Budgell,
    I liked very much your balanced and unemotional description of your legal problems/struggles as a SRL. It is very nice seeing some lawyers or law professors in this forum who show their sympathy and understanding of the SRLs’ problems, especially when it is also followed by an offer to help.

    However, that is not enough, as the SRLs are isolated. The lawyers have their bars supporting them. Isolated SRLs have the same need, and more so, not only dealing with their law cases, but at the same time learning often from scratch the basic legal rules.

    When help is offered for SRLs, that should include helping them to contact each other. Let for example people having family cases, labour issues with powerful employers, confronting discriminating/abusing them police officers etc. have a chance to contact other SRLs with the same problems. that would be important for the exchange of legal experience, but also for moral support.

    I liked very much your persistence, Mr. Budgell, and seeing/talking/writing with such people can help others, and – I hope – vice versa. For such reasons and with only this general intention I would appreciate very much even the shortest email sent from you Mr. Budgell as from others using this forum.

Leave a Reply

(Your email address will not be published or distributed)