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Name-Calling Aside: The Problem With the “Unrepresented” vs. “Self-Represented” Distinction

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.

For example:

  • Person-trying-to-stand-up-for-themselves/their family
  • Person-hoping-to-win
  • 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)
  • Person-desperately-wishing-to-be-represented-but-unable-to-afford-representation-because-of-the-fees-charged-for-representation

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.”

Why not?

  • 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.

Comments

  1. According to The Canadian Superior Courts Judges Association website the role of the judge consists of “control[ing] how hearings and trials unfold in their courtrooms”. As such is the role of the judge, would it not then be helpful at the outset of a proceeding where a party appears without a lawyer to address such by asking that party, why?

    Among the qualities required of a judge as outlined on the CSCJA site is “They should be good listeners but should be able, when required, to ask questions that get to the heart of the issue before the court.” Perhaps, asking why a party is without a lawyer may or may not be relevant to the issue at hand, of course relevance couldn’t be determined until the question is asked and the party given an opportunity to answer.

    “[T]o 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” is a miscarriage of justice.

  2. Great point Verna. Of course some of the best do this already and have created some great practices – but it is still not widespread, and not as far as I can see something that is directly addressed in judicial training. I would love to see that happen. Judges are so important to the experience of SRLs and many attest to this. We can address many of the myths by simply asking questions, as you say.

  3. Jeff Rose-Martland

    Verna, that would be a good idea if it wasn’t such a loaded question. It overlooks the hostility we encounter from security to the Bench. It is slyly hinted, sarcastically noted, or openly stated, that we have no business in the building, never mind before the bench. Not everyone treats us this way, but that’s still the majority.

    There’s no way for a self-rep to answer that question without further fuelling attacks by such people. Can’t afford a lawyer? Well why not, where are you spending your money, surely you can borrow, or legal aid could help, there muat be someway for you to pay! No lawyer will take your case? ?? Clearly you haven’t asked enough! Conflict of interest? Go tell them I said to confirm that with the law society!
    And, of course..
    So you think YOU can do a better job, do you??? What do you know about your case?!?

  4. Thank you, Mr. Rose-Martland.

  5. Thank you for this insightful article.

    It is a terrifying thing to be lost in the machinery of the legal system and to find yourself trying to cling to the ragged and abused hope that such things as “justice” and “truth” might still exist and actually matter in some hidden corner of the system somewhere.

    It seems that those words have become embarrassing anachronisms to the majority of the cogs in the machine.

  6. I can confirm Jeff Rose has hit the nail on the head – there is often open hostility towards SRLs when they enter a court-of-law building. How does a SRL overcome and survive inequity of this magnitude? Not well is the short answer.

    The former Chief Justice of the Supreme Court of Canada, the Right Honourable Beverley McLachlin, a decade ago, wrote about unconscious bias on the bench and in the legal community as very difficult to crack.

    Recognizing and reconciling unconscious bias like gender bias especially is tough to dismantle because for centuries the rule of law was an exclusive realm for patriarchal supremacy designed and constructed by them and for them.

    The court was never conceived for SRLs so we are a huge inconvenience for the courts; SRLs have disrupted this exclusive elite law industry. No wonder SRLs are mistreated and miserably suspect as to why they are in their (judges’) courtrooms. We collectively are a major threat to the legal community.

    The language of legalese and the culture of the legal community in which it is used against SRLs goes unchallenged for the most part. For those SRLs experiencing terminating effects, this use of language against them is demoralizing and it works – SRLs are assailed voiceless and powerless. This is a psychological wrong by today’s 21st standards of decency and dignity as a human right.

    The challenge to the legal community is to address these status quo inequities for authentic change. The new reality would definitely “spoil the fun of legal practice and the power of lawyers”. i.e. “adversarial practice” would be considered unethical, unprofessional and unjust and therefore prohibited . . . Imagine . . .

    And why not? Abandoning adversarial practice and adopting accommodation of difference as a mind-set is open and inclusive and the right thing to do.

    “Accommodation of difference” in the full sense of its meaning is not understood or practiced by the legal community. Its inability to accommodate difference is grounded in their unconscious bias status quo practices. These biases are entrenched – it is what lawyers know and can do.

    Educators / teachers on the other hand, know how to “accommodate differences “. Teachers are guided by the Principles of Learning, which they apply to different contexts and different people within the setting. The outcome for individuals within the group is to succeed with dignity. It stands to reason that SRLs should be accommodated similarly to the way in which master teachers do it for their students.

    The legal community has the responsibility to study and apply changes necessary in order to meet 21st century societal realities. The adoption of the Principles of Learning by the legal community with respect to “accommodation of difference” is required. This solution will undoubtedly relieve litigants’ misery. It will also put an end to the inequities of exclusive policies and practices within the legal community itself – a good thing for humanity.

  7. There is a book entitled, “The Medieval Origins of the Legal Profession”. I still haven’t read it, though I first came across the title years ago. I must get the library to order a copy. It says the profession can trace its origins to roughly the beginning of the 13th century. It has been building its procedures and institutions for 800 years. Like the mother church that largely spawned it, it doesn’t adapt to the needs of a changing society. Rather society must acquiesce to the demands of the legal establishment.

    Compare that to say the profession of engineering, which I suggest is considerably younger. Do the builders of bridges and other physical infrastructure have to deal with the untrained demanding the right to participation in what they do? But then few people would disagree with the contention that all areas of engineering are rapidly evolving. It is well understood why and how.

    Are the practice of law and the justice system evolving? If so, how? And driven by what?

    A bridge whose design is obsolete can be replaced. The old bridge is demolished. Maybe that’s a prospect the legal profession is facing.

  8. Jeff Rose-Martland

    Chris – Actually formal engineering goes back at least as far as Summeria, so thousands of years. That’s an interesting analogy, though: when something no longer works, engineers find a new solution. There are plenty of ‘self-represented’ engineers: they are called handymen. You don’t drag in a professional engineer to build a deck; you either DIY or hire a contractor at a reasonable rate. Engineers, however, set the standards and code requirements so that the deck is safe.

    To extend that further: I have no problem with legal professionals doing what engineers do: specialised professionals who expand the understanding of their field and/or take on the big jobs. But where we are now, there is only a tiny space for contractors [paralegals] and practically no room for DIY. You wouldn’t force someone to have an engineering degree, work experience, and professional qualifications so they could put up a deck. That person only needs to know what the minimum standards are [easily found online] and how to use hand tools. Where self-reps are, we’re trying to assemble a 6″ high platform, but no one will tell us the code requirements, and every time we get the stakes and strings to mark it out, someone comes by, shouts “That’s wrong!” and, often, makes off with the hammer!

    If that’s not stretching the analogy link silly putty.

  9. Thanks Jeff,

    We might have the kernel of an interesting discussion there, but I’ll need a nights sleep before giving that further thought.

    On another note though, I’ve just spotted something that I see as yet another illustration of the legal profession’s dedication to deluding itself. I’m not a member of twitter and don’t frequently go there, but at this access to justice thread – https://twitter.com/a2jbc?lang=en – I spotted a post promoting a book, The Justice Crisis, edited by Trevor Farrow and Lesley Jacobs.

    My first thought was why do they still insist on calling it a crisis. But on finding the publisher’s page for the book – https://www.ubcpress.ca/the-justice-crisis – something else struck me. The subtitle is The Cost and Value of Accessing Law. I don’t know about the value of this book but I note the cost is $89.95 for anyone who wants the hardcover. I’ve read enough material like that to be almost certain that it would offer me no value, so I wonder who actually buys these books.

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