Two Improvements Our Courts Can Implement for Self-Represented Litigants

Recently Chief Justice Wagner announced that the Supreme Court will modernize its headnotes by adding a summary written for regular folks. This summary will be posted on the Court’s website and its Facebook page. This change is a response to the way people are getting information. Today people learn about information from social media and websites in addition to traditional news broadcasts.

Justice Wagner’s initiative should be followed by our lower courts. Many self-represented litigants read cases arising from trials or motions. These cases can be hard to understand, even for lawyers. Our courts should be supplementing these dense decisions with a summary aimed at non-lawyers.

Additionally our courts should be considering alternative mediums for providing these summaries. We should be questioning the delivery of reasons. Why do we restrict ourselves to written reasons when we have new forms of media available to us? Is there a good reason to only produce written reasons or oral decisions from the bench? Should some significant cases from each level of court be accessible through different mediums?

A quick two-minute video explaining a written decision by a judge or a court spokesperson may be of use. Assuming that everyone can comprehend written reasons or a written summary is exclusionary. The courts in theory are to be open to everyone. They are not to be like the “Ritz Hotel”. Delivering decisions in one medium, when we now have other mediums available to us, may be unjustifiable in 2018. We have individuals with a myriad of abilities using our court system. This includes self-represented litigants with learning disabilities. Some of these individuals cannot afford a lawyer or a paralegal. However, they are still expected and entitled to understand the law and to be understood by our courts. Having a judge explain his/her thought process behind a leading case in a quick video may be helpful to some people.

The second initiative our courts can consider is Kiosks. For example, the Tennessee Administrative Office of the Courts will be providing grants to 10 Tennessee counties to launch court kiosks in 2018.

“Many people with questions turn to the court clerks and court staff for answers at the courthouse,” said Marcy Eason, chair of the Access to Justice Commission. “The innovative kiosk project will assist court staff to help people by providing timely information on local legal resources in a user-friendly way.”

Court clerks will be able to direct self-represented litigants to an on-site computer (Kiosk) where the user can access legal information and connect with local legal resources, including local legal aid offices, local pro-bono projects and clinics, court approved forms, and other resourcesThe kiosks will be customized for each court. In my opinion, the Kiosks could only be effective with trained employees assisting litigants. The Kiosks would have to be supplementary to guidance from individuals.

 

(Views are my own and do not reflect the views of any organization.)

 

Comments

  1. What the UK Supreme Court is doing is instructive. It produces a blurb in layman’s terms describing the result. As well, and quite helpfully, it provides links to to the oral hearing.

  2. Laudable. One question though: if we truly can adequately summarize reasons for judgment in lay terms, why are the judgments not already written in lay terms? Is there not also the risk that “headnotes for the layperson” might actually mislead the lay litigant though a lack of nuance or precision?

  3. As an experienced self-represented litigant who still finds legal language a challenge I agree that this initiative promised by the new Chief Justice is encouraging.

    Early in my train of litigation a key language issue arose. As debated by the B.C. legislature in 1992 the Labour Code provision whose application I ended up challenging in court relied crucially – in two successive lines – on the term “prima facie case”. When I got around to examining the Hansard record of the debate – http://www.uncharted.ca/images/users/ssigurdur/hansard_on_sect_13_2.pdf – it was evident to me that the MLA’s really didn’t understand what the term meant. So there, I suggest, is one place where the problem of proprietary legal language starts. Our legislators are not doing a good enough job of ensuring that legislation is decipherable.

    So I started reading the literature about the language of the law. In due course I also started learning about the legislative process. That interest was triggered by my discovery that somehow, after that provision relying on “prima facie case” had been enacted, the two instances of the term had been removed from the provision, though it had never been revisited by the legislature.

    And yet some years later when I went to court to challenge the application of that provision – initially with a measure of success – the term “prima facie case” was cited in both of the superior court decisions:

    https://www.canlii.org/en/bc/bcsc/doc/2003/2003bcsc119/2003bcsc119.html

    https://www.canlii.org/en/bc/bcca/doc/2003/2003bcca605/2003bcca605.html

    This single instance of proprietary legal language – “prima facie case” – remains, in my view, highly problematic. I don’t believe it is found today in any federal or provincial statute, but it’s still relied upon in litigation and is being cited in judgments. E.G., CanLII finds five SCC judgments in 2017 alone.

    There’s another key proprietary term that I think is highly problematic. It is common in judicial review judgments to see attempts at explaining “patently unreasonable” by invoking the synonymous term “clearly irrational” (see e.g. the two judgments cited above). Some people have characterized these terms as tautologies.

    If the SCC is going to set an example by starting to offer summaries of judgments in plain English, then I look forward to seeing how they are going to translate “prima facie case” and “clearly irrational”, especially where they appear in the same judgment. And if they decide to avoid explaining them then that will amount to a claim that they are plain English, which clearly they are not.

  4. Here here! As a sometime SRL with a brain injury, this is a great idea.

    The idea that CanLii is “accessable” to the public, is misleading. Even IF you could find what you don’t even know you should be looking for, good luck sorting out whose even who in the story, let alone what actually happened or if it might save you right now.

    The years spent trying to find, let alone hope I properly read and understood complex information (often full of double negatives, requiring prior knowledge of legal concepts and complex mental gymnastis that I do not possess) is the hardest thing I ever failed at. More than once, I couldn’t be sure if I had in fact, just made the defenses case for them.

    The most understandable information I ever found, was by accident, written in lawyers blogs commenting on a case. That said, even when I read what was written about my own cases, I didn’t recognize it as my lived experience and was left wanting to say, wait that’s NOT what happened. But that’s an opportunity that never comes and like every other blow you take, you have to learn to live with.

    I hope the Legal system follows through on this critical acomodation that in some small way attempts to level the playing field of a very lopsided, and as such, unjust public system that is failing to serve the citizens or make the world a safer place for all people to live in. As always, I am afraid to hit “send” and that in itself, is telling.

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