Are people coming to court without counsel “self-represented litigants,” or are they “unrepresented litigants”? I shall reveal all below, but frankly, I feel the tendency of the Canadian Bench and Bar to get caught up in assigning separate distinctions to these terms distracts from the important work of understanding the lived realities of these litigants, and working with them to find solutions to our shared and indisputable Access to Justice problem.
All the same, the reason it IS important to address this issue once again is because the language describing those who are in court without a lawyer has been used to demonize, marginalize, and disempower them.
What’s in a name?
The first and obvious point is that language is important because it shapes our perceptions. On this point I totally agree with what my colleague Pam Cross, writing recently in Lawyer’s Daily, has said.
Need an example of the power of language to shape or distort opinions?
- “unwed mother” vs. “single parent”
- “spinster” vs. “single woman”
- “broken home” vs. “two home family”
Which brings us to the so-called distinction between “unrepresented litigants” and “self-represented litigants” that is the focus of Pam’s recent article.
Pick your own name?
Given the misery that representing yourself in court amounts to, there is an argument that a self-represented litigant, or SRL, (the term we use at NSRLP) should be allowed to call themselves whatever the heck they wish.
- Person-trying-to-stand-up-for-themselves/their family
- Person-with-nothing-better-to-do-with-their-time (seems unlikely, but your call)
- Person-who-believes-appearing-alone-in-court-might-be-a-way-to-launch-a-Tik-Tok-career (also unlikely, but whatever)
Language and inter-cultural competence
One of the special skills of lawyers – and indeed anyone seeking to control a narrative – is the ability to convince others that a particular word or name or expression is an absolutely unassailable, 100% convincing designation of an actual thing.
Like “reasonableness.” (Remember those fun law school days?)
Or “family.” Or “property.” Or “ownership.” “Or “vexatious.”
This, despite the fact that of course the nature of language is inherently subjective, fluid, and reflective of culture and context, as are the narratives we use language to create.
One of the reasons that we encourage our kids to learn a language other than the one they are born into is that having more than one word to describe an object develops important conceptual awareness. An understanding that a word is not the singular encapsulation of an object, but that it is always mediated by context and cultural understanding.
For example: there are more than 20 words for “apology” in Japanese (I do not speak Japanese – I read this here). Each one is of course different, with a different nuance and inflection, and different versions are suitable in different contexts (for example, “forgive me,” or “excuse me,” or “I am trying to be polite but I don’t like you”).
We all know this about the nature of language, but admitting it would spoil so much of the fun of legal practice (and the power of lawyers?) when we insist over and over that certain words carry exact, constant unassailable meanings.
Language to describe those without lawyers in court
Having spent much of the last 9 years talking with individuals who fall into this group, here is what I have learned about how they would like what they are doing to be described:
- Most are not doing this out of choice, but because they cannot afford or can no longer afford legal assistance (over half of them began with lawyers).
- If you cannot afford to pay for a lawyer, you are unlikely to want to signal this to a packed courtroom. It is embarrassing for most people to admit this.
- There is no objective standard of “cannot afford.” In 2020 we do not require people to prove that they “cannot afford” a lawyer, or ask them to justify their decision, perhaps, to buy a new car or take a holiday instead of spending that money on a lawyer.
- Many of those coming to court without lawyers feel that describing themselves as “unrepresented” is a form of erasure. It feels like the legal system is saying they are just not there, they cannot see them, they don’t count.
This was one of the conclusions of a 2011 study, which also made the point that “unrepresented” assumes that representation by a lawyer is the norm (no longer a safe assumption).
The vast majority of the thousands I now have worked with and talked with over almost a decade prefer the term “self-represented.” They say that it feels more empowering for them than “unrepresented.” This is the intentional nomenclature that we have come to adopt at the NSRLP – because most SRLs tell us this is what they prefer. Of course, there are some who prefer “unrepresented,” but a quick check in with A2J advocates in other common law countries will tell you that most self-describe as self-represented.
I do not have a dog in this fight – whatever we decide to call people coming to court without lawyers is fine by me, as long as it is respectful, and in accordance with their preferred designation.
What is really important, however, is that we do not fall into the logical lawyer’s trick of ensconcing just one singular meaning for “unrepresented,” and a separate one for “self-represented.”
- Because each litigant is an individual.
- Because each litigant has their own story that led them to not be represented by a lawyer.
- Because a litigant’s choice of nomenclature does not reveal something fixed and unarguable about their motivations.
Wait, how did this become about motivations?
While “unrepresented” and “self-represented” are still often used interchangeably, at NSRLP we have increasingly become aware of the development of a spreading meme: that those who are labelled “unrepresented” are genuinely facing no other choice and are deserving of our sympathy, while those who are labelled “self-represented” are choosing to go it alone because they want to – the often just-below-the-surface implication being that they are bloody minded, arrogant, or looking to cause trouble.
Pam refers in her article to a finding reported by Nick Bala and Rachel Birnbaum who recently asked judges their opinions about the reasons for self-representation (an earlier study is here). They report that 44% of the judges they asked about SRL motivations believe that men are more likely to be “self-representing” because they think that they can do “a better job themselves” than a lawyer, and will not pay for a lawyer “even if they can afford it.”
Look, I’m the last person to suggest that judges are gender-neutral in their assessments, and it is no bad thing for judges to reflect on gender biases in their courtrooms. But why do we think that they are any better able than the rest of us to make a magical, fact-free, possibly interaction-free assessment of someone else’s motivations for coming to court without a lawyer? Is there a new medical test that can detect “impure motives” for representing yourself that we can give to people without lawyers?
Moreover – should we not be concerned that judges hold such gender-specific perceptions without any apparent factual basis? Isn’t the more important question why we permit this anecdotal view to go unchallenged?
More important: how is this helping?
I’m know I am spoiling the objectified-language-generalisations-fun here. But I believe it is irresponsible to give voice to dangerous myths that pervade the legal profession and the Bench, and only increase our intolerance of self-represented litigants, while doing nothing to increase our understanding of them. And these myths are expressed and empowered by the language we use.
I really hope we can put this argument to rest. I’d rather be writing about how we can collectively develop solutions that can assuage litigants’ misery – whatever we call them.