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.
John-Paul Boyd is the executive director of the Canadian Research Institute for Law and the Family; Allie Wright is the Institute’s coordinator of Alberta-based research projects. The Institute is a federally-incorporated charity established in 1987 and is affiliated with the University of Calgary.