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.