Lawyers and Self-Represented Litigants

It is disheartening how many lawyers in litigation practices persist in the view that self-representing litigants (“SRLs”) are a problem that needs a solution.

I’ve written about this here before (see Shifting the Burden) and really my views haven’t changed, except in that there is more evidence than ever before that the needs and motivations of those who “choose” to represent themselves in litigation are complex and that this choice is made at their peril and often at significant personal cost.

Why rehash an old story (and indeed it isn’t new)? Because I spent two hours of my day today listening to tips for family lawyers dealing with self-representing litigants and frequently found myself dismayed by some of the attitudes and biases seeming to underlie the advice given.

I know I shouldn’t be surprised that lawyers tend to assume that only they should do the work they do. After all, lawyers do have a monopoly on delivery of most legal services. It naturally follows that this makes lawyers a little edgy about a layperson who is so bold as to attempt to represent themself in a litigation process.

Nor should it surprise me that lawyers are self-protective. Our law societies and insurers have effectively convinced us that we need to be risk averse and protect ourselves against all potential claims and complaints.

It also shouldn’t surprise me when judges take similar stances; after all, they were practicing lawyers at one point too and are currently focused on getting through heavy workloads with a minimum of annoyance while balancing the rights of both represented and self-represented parties to a fair and just hearing. Theirs is a significant challenge, made more so by the growing presence of SRLs in every court across the country.

But what caught my attention today was the extent to which the legal profession views SRLs, more than anything else, as obstacles to overcome in the efficient and effective operation of the justice system. The presenters’ tips were rife with obstacle avoidance techniques – whether through insistence on written communications through snail mail, obtaining transcripts of every court proceeding, avoiding negotiation, blocking persistent emailers or in extreme cases, getting a non-communication order against a threat-making SRL.

While there was prudent advice given (e.g. be respectful, don’t bully, document oral communications in writing), on the whole I left disappointed by the views and attitudes expressed. I can only imagine how much worse it feels when you’re an SRL on the receiving end of this point of view.

And perhaps that is the problem. Few in the legal profession can imagine what it feels like to be a self-representing litigant.

One of today’s presenters noted that dealing with an SRL is very stressful for lawyers. I suggest it is even more stressful for the litigant without a lawyer. SRLs find themselves in the midst of a complex and hard to navigate system, trying to interpret forms and documents often written in what seems to be a foreign language, while dealing with powerful lawyers and judges about often personal and life-altering issues.

The challenges facing the SRL are so much greater than the challenges lawyers face in dealing with them. I’m not sure whether lawyers really recognize that, and if they do, whether they give it adequate weight. There is always a significant power imbalance when a self-representing litigant enters a court proceeding opposite a party represented by counsel. We have all the tools at our disposal while they flounder and do their best with the limited resources available to them.

In this context, lawyers’ fear of SRLs seems a little out of proportion. While there are exceptions (the very few vexatious litigants and assorted serial litigants often the subject of lengthy decisions from the courts), the potential dangers most SRLs present are minimal and can be easily addressed simply through prudent risk management processes.

Until affordable legal services are available to all who want them, lawyers need to accept that SRLs are a fact of the modern justice system and not an aberration or obstacle.

Comments

  1. Thanks for this post. As a lawyer who has litigated cases both opposite SRLs and as an SRL myself, I see why the fear exists and how it can become overblown. Some of the best advocacy I’ve seen came from SRLs, but sadly much of the most unnecessarily protracted litigation I’ve seen has also involved SRLs.

    There may be a significant power imbalance as argued above, but in some cases it’s apparent that the self-represented litigant isn’t in court to vindicate their rights so much as they enjoy going to court and there aren’t sufficient disincentives to litigating (or unreasonably resisting attempts to resolve the “dispute”) for the sake of litigating. I don’t doubt there is an overwhelming majority of SRLs who are SRLs only because they have little or no other choice, but the dangers presented by the few that seem to enjoy dragging out a dispute or treating litigation as a game are real and, in my view, warrant heightened vigilance by lawyers keen to avoid unnecessary costs and delays for their clients.

    The examples provided above of insisting on snail mail, ordering transcripts of every proceeding, and avoiding negotiations all seem like extreme practices to adopt as a matter of course with all SRLs, but may well be prudent if a lawyer determines they’re acting opposite a particularly unreasonable lay litigant.

  2. I have to remind myself when reading what I find on SLAW that this is a forum for lawyers and I need to try to be empathetic, to somehow see the issues from lawyers’ point of view.

    But there are limits to how empathetic I can be. I have a track record as an SRL starting in the year 2000. I’ve gone up through the hierarchy of legal forums all the way from the BC Labour Relations Board to the Canadian Judicial Council, both of which I am still challenging.

    The CJC decided to stonewall me on a complaint I filed in December 2014. I’ve recently referred that matter to our new federal Minister of Justice. The BCLRB will soon have to answer the FOI complaint I filed on March 8 with the BC Office of the Information and Privacy Commissioner. I expect that one to go to an inquiry and it may well end up in judicial review.

    I am perfectly at ease sharing with the public all of the details of everything I have done and uncovered. What I perceive in response from the legal establishment is paranoia. And I think it’s justified. I know what the term “the rule of law” means. I could write an essay about it, but there’s no need to as there is plenty of material I can cite. One of my conclusions is that the Canadian legal establishment uses the term simply as a convenient corporate marketing slogan.

    I no longer fear, nor do I respect, the judiciary, or Canada’s vast quasi-judiciary. But I don’t enjoy going to court. It’s an experience I still find very stressful, in part because I must struggle to contain my anger.

    How many years now have we been hearing about an “access to justice crisis”? What has been done to address it? Nothing!

    Everyone should find and read a copy of Fred Rodell’s “Woe, Unto You Lawyers”. (I note that the one copy I found online seems to contain what I think are typographic errors probably created in the transcription process). It doesn’t end on an upbeat note because Professor Rodell could not foresee any way that the lawyers’ monopoly could ever be challenged. For decades after her wrote that book, the legal system and the monopoly remained unchallenged, even after public expectations began to change with the so-called “Rights Revolution”.

    But no one saw the Internet coming, except the very few who began working on the idea back in the 70’s. The genie is out of the bottle. He’s not going back. Enjoy the ride!

  3. Mr. Budgell’s own use of the legal system suggests that he is an example of the second type. He has turned an arbitration over his termination during the probationary period of his employment in 1999 into a legal battle that apparently continues today, 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).

    http://www.canlii.org/en/#search/text=%22christopher%20budgell%22&id=budgell

  4. Evan, some people may agree that what you have to say about me is fair comment.

    I’m not inviting such comments but I’m also not inclined to complain to the site’s administrators about them. However, I think when you make such comments you should have the courage to identify yourself.

    I am reminded of a former occasion when a group of aggrieved participants on the public forum http://rabble.ca/babble got into an online discussion about the possibility of suing me for libel (over something I had said that was really quite innocuous). There was no point in trying to respond to them, especially as by then they had “banned” me from the site.

    They were all using aliases. If I recall correctly I had identified one of them as a former Vice Chair of the BC Labour Relations Board. He got quite upset when he realized I might reveal to everyone else who he was. So I didn’t. I’ve never sued or been sued for libel, but I couldn’t see how they could hope to even start an action using their aliases.

    I have found that if I really want to know who someone is, it’s generally not very difficult. I’ve easily found several records, including one on LinkedIn, that I’m 99% confident identify you. On graduating from Osgoode you worked for a number of years for a very well known law firm that famously self-destructed, and now you are an in-house lawyer for a major Canadian corporation.

    I’m willing to continue engaging with you, and I’ll even let you keep your anonymity, since there’s no rule against it. But I realized a long time ago that anonymity would simply not work for me.