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“Outsiders” and “Insiders” Can Change the Justice System Together

In the last five years, the engagement, skill and experience of individuals representing themselves in the justice system has changed in a number of very important ways. NSRLP has a number of data points to reinforce this observation, including the 2015/16 Intake Report and the 2017 Intake Report which noted:

“Last year we were struck by the growing sophistication and nuance of the tips offered by SRLs to others who face similar circumstances. In 2017, we continue to see very detailed advice offered to other SRLs. Respondents offered personal experiences with preparing court documents, preparing for appearances, how to research, and how to stay strong during the extreme stress and pressures of navigating and engaging the legal system….”

As well, there is a growing movement of effective and sustained A2J advocacy among former SRLs. From the blog:

“We continually meet former SRLs who want to work on Access to Justice issues long after their own case has ended, in order to make the SRL experience less frustrating for others whose circumstances will also require that they self-represent.”

SLAW is experiencing a sharp uptick in the number of comments being posted by those whose experience of the legal system is as members of the public, not members of the legal profession. This is a development to be welcomed, but it is a change that demands further analysis and sober reflection by system insiders. In this post we – an SRL and a law professor – will try to explain what we think are the critical implications of this, based both on our personal experiences and NSRLP data.

First, let us say that the legal community disregards this development at their peril. There is sometimes a feeling at legal conferences, in coffee room chatter, and on social media that the grievances of SRLs can be brushed aside because they “don’t get it”. Lawyers and judges roll their eyes and shrug their shoulders at public complaints of sharp practice (“they don’t understand our adversarial system”), unclear decision-making (“they don’t understand judicial discretion”), consumer-unfriendly billing conventions, and an overall lack of accountability. Each of these and other grievances can be met with: the public doesn’t understand. They are not trained like we are. “We” know better than they.

This line has worked for a long time, but now totters on the very edge of credibility. An increasingly knowledgeable and outraged public understands a thing or two about the legal system. First, it is a closed shop. There are few entry points, all of which involve dues and apprenticing. From legal clerks to law professors to judges, admission to the system is through specialized training and apprenticeship. Of course legal professionals should be trained to do their jobs effectively. But the barriers to entry – including the high cost of law school tuition that excludes would-be lawyers from working and lower-middle class backgrounds, the importance of personal “connections” that reinforce the status quo, and notwithstanding some advances, the continuing prejudice and discrimination exercised against women and people of colour – are inappropriate for a profession that is a 21st century public service. Our continued tolerance of these exclusionary and elitist elements disgraces us. The ridiculous “we-shall-die-on-this-hill” apoplexy that greeted reasonable proposals (in British Columbia and Ontario) to train and equip para-legals to undertake a limited range of family law tasks for a family litigant population is that now more than 50% self-represented is a perfect example of this.

Second, the public is increasingly aware that they are disadvantaged in the legal system when they cannot afford counsel. Data shows that SRLs are systemically unlikely to win in a matter in which they face a represented party. Statistics on outcomes in summary judgment motions, increasingly being brought as a default strategy by a represented party to pre-emptively end a case against an SRL, show a shocking 95% success rate for the moving party. Of course a trained professional is far more likely to prevail than an SRL, but these statistics show an imbalance of horrifying proportions, especially when we know that among SRLs there are some who are extremely well-prepared, intelligent and well-educated. Their failure should not be pre-ordained. We also know that the legal system increasingly deploys punitive measures to discourage SRLs, including substantial and unusual cost awards against SRLs, and a worrisome range of discretion in both formally and informally designating an SRL as “vexatious” (see pages 7-9).

Third, the complaints systems presently offered to those who, at the end of their case, feel that they have been unfairly treated is a throw-back to the old days when there were few SRLs and few members of the public who would consider complaining about a lawyer or a judge. Demands for public accountability falls abysmally short where complaints systems are controlled by those who are the subject of the complaints. In other areas of public concern, we see steps being taken to move public complaints to credible independent bodies (for example, against police, about sexual abuse in the churches). But not the legal profession or the judiciary. They still control investigations of themselves. After all, the narrative goes, they are the only ones who really understand what they are doing.

Not everyone thinks that way, of course. There are insiders who are trying to force open the doors. Judges who are working hard on trying to resolve how to offer procedural fairness to SRLs against the system. Lawyers offering lower-cost flexible services in which they work with their clients, not just taking over. Law students who are volunteering to coach SRLs. Academics and NGOs who are credibly examining and reporting on possible A2J solutions.

Can Outsiders Work for Change Inside the System? Jeff’s story

On the first day of NSRLP’s stakeholder dialogue in October, Nova Scotia Justice Jim Williams said to the attending SRLs, “This is your system as much as mine, or that of anyone else.”

That floored me. From the moment I (Jeff) became entangled in the legal system, I have been treated like mice in the house – unwelcome at best, offensive at worst. Justice Williams’ words were alien to my experience, and profoundly moving.

For my first few encounters as a self-represented litigant, I insisted that I not be treated like I was stupid. I demanded answers. I challenged the responses that I got. I quoted legislation. But after a barrage of oblique replies, arcane explanations, and word re-definitions, I started thinking that maybe I was stupid after all. The more I was kept out, the more I believed there was no place for me in the legal system.

It took Justice Williams to remind me that wasn’t the case.

All the same, there are two ways to interpret his words. Yes, the justice system belongs to us all. But the justice system does not belong to all of us. The system that obtains belongs to those who have been ordained in its hierarchy.

SRLs both need and want expert help. We want the justice we have been told is available to everyone. We want to do whatever is needed to access justice. We want to be able to present our facts, present our version of what those facts mean, and have a decision that is just. Or at least fair, understandable and explainable.

SRLs don’t want to join the system. They do not want to devote our scarce time to performing brain surgery on ourselves, twisting our minds according to the needs of the system. We want the system fixed so that no one else has to endure what we have.

Can Insiders Work for Change Inside the System? Julie’s story

I (Julie) have spent most of my adult life trying to figure out the balance between advocating for change from within, and pressing for change from outside an institution or system. I have spent 35 years teaching in law school, and from the very first day I wanted to radically change how we train lawyers. Much of my work has focused on this.

I still believe that my influence and ability to push for change is enhanced by the status I hold inside the system. But of course that buys into the points that Jeff and I are making here – that the system privileges those with that insider status. It has made me uncomfortable for 35 years. Yet it has also allowed my work to have some impact.

Along with all those law students, lawyers, judges and third-sector workers and advocates who have stepped up to advocate for A2J, I am part of the system. As we assist SRLs, we are imparting the secrets of the arcane, teaching SRLs how to “play the game”, moving them towards initiation, and offering them standing space in the cold, dark corners of the halls of justice. But they are still cold, dark corners. And this is emergency critical care, band-aid solutions. Much better than nothing but not a strategy or a plan for real system change.

A2J advocates need to ask ourselves: am I working towards justice, or just propping up the system? Am I defending elitism or striving to end it? Am I offering “poor SRLs” a paternalistic pat, or are we keeping our eyes fixed on the prize: radical system overhaul?

Respecting one another

Systemic change – to the professional culture, the processes and the social meaning – of the justice system is inevitable. The number of people coming to court without lawyers has grown to astonishing proportions. More than half of family litigants across the country and a third of civil and appellate litigants are self-representing because they cannot afford, or continue to afford, legal assistance. SRLs see online information as giving them entry to a previously well-guarded system.

The profession is going to have to deal with its twin preoccupations of exclusivity and profit-making. They make difficult bedfellows, especially when “public interest” is added to the equation. SRLs accept they may lose, but they won’t just go away. Courts are being forced to deal with SRLs, and some of the recent jurisprudence highlights the battlegrounds: do we offer the public procedural fairness, or do we punish them for daring to imagine that they could do without lawyers?

It is too late now for insiders to shout all-hands-to-the-barricades; the bastion is already infiltrated. Those stubbornly defending the old ways may hold out for a while, but they will go down, as those who refuse to adapt always do. Change offers opportunity for those who seize it. There is room for both insiders and outsiders, respecting one another’s perspectives and experiences, to argue for change and bring justice back to the justice system.

Comments

  1. The self Rep problem is most obvious in Family Court. I wonder why this is true?

  2. The adversarial courts are no place to resolve family law matters. Placing those matters in an adversarial system is fundamentally wrong to begin with. Lawyers’ perverse incentives (not to settle, all the better to grind) compound the harm by orders of magnitude. Family law needs a different system, geared to (1) protecting children and (2) supporting full financial disclosure – as in government help to make sure these things are done and done quickly and correctly.

  3. This is a very measured and forceful statement by Julie and Jeff.

    I agree that family law probably requires its own special solutions, but I and other SRLs can attest to the problems we’ve faced while pursuing other types of legal issues.

    My view is that the legal establishment is pretty well out of time. I was saying last year that in 2019 we were going to see developments like we’d never seen before. The little firestorm in Ottawa centered on the former Justice Minister is one such development. Some people probably see in it the beginning of the end of Canada’s storied “Natural Governing Party”.

    And it’s about The Rule of Law. The media has been citing that term in practically every article.

    Most Canadians still could not offer an answer if asked what it means. My guess is that many of the journalists who have cited it couldn’t offer much of an answer either. And I’ll bet a lot of lawyers wouldn’t fare well if they tried to debate it with me.

    Yet there it sits in the preamble to the precious Charter.

  4. The reaction of the legal community to the rise of SRLs is textbook Ingroup/ Outgroup behaviour. The legal community shows favouritism to their own while SRLs specifically, and the public in general, are treated as if they have little worth.
    .
    The legal community’s preference for their own manifests itself in their negative assessments of the SRLs’ arguments and motives, as well as in the low level of professional and basic civil courtesy extended to SRLs. As SRLs have become more numerous and more knowledgable they have been perceived as a threat to the comfortable established system order and the legal community has responded by taking more active steps to shut SRLs out. The rise in summary judgements, declaring SRLs vexatious litigants, conflating all SRLs with Organised Pseudolegal Commercial Argument litigants and the use of excessive cost awards to punish SRLs are the most visible examples.
    .
    However, resolving ‘problems’ by making the processes more difficult for SRLs/ the public is a pervasive attitude. For example, in 2014 the LSO was not meeting the National Discipline targets for their Complaints system and the problem was getting worse. In 2016-17 the LSO revised their processes and achieved better compliance. How?- by rejecting more complaints outright and providing less information about the ones which were investigated. The 2017 Complaints Resolution Commissioner’s report (presented at Feb 2018 Convocation) states “that between 2015 and 2017 the percentage of files received by the PRD [Professional Regulation Division] that were instructed and transferred to an investigation department dropped dramatically, from over half in 2015 to less than one-quarter in 2017”. The report also states “that the Law Society has moved towards providing complainants with far shorter closing letters. It is my view that the new letter format often results in a product that is short on an analysis of the issues and the reasons supporting the conclusions reached in the investigation.” Hmmm. This is a rather short-sighted response; the LSO don’t seem to see the hand writing on the wall. Australia and the UK have already moved away from self-regulation. A better response would be to engage with the public to implement real changes, rather than achieving ‘improvements’ at the public’s expense.

  5. Let’s not forget the crucial role that Plain Language plays in access to justice. If more legislation, rules of courts and court forms were written in Plain Language, the barriers facing SRLs would be much less formidable.

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