Self-Represented Litigants Are Not Things

There was a minor kerfuffle a few months ago over a new course offering at UBC Law. LAW 481C.002 – Access to Justice and the Future of the Legal Profession drew its three listed faculty members from the Vancouver office of an old-guard national law firm with ample apparent concern for the future of the legal profession, but little discernible track record of proactivity, innovation or anxiety around the access to justice issue. Most notably, the course faculty included a former BC Attorney General who had orchestrated a 40 percent cut in legal aid funding a decade prior, and who had been censured by the Law Society of BC for his successful efforts.

The Tyee—an independent online magazine—published a long article on the obvious irony of LAW 481C.002. Most of the criticism there and elsewhere focused on the lack of balanced perspective that the politically connected faculty brought to the self-appointed task of “empowering class participants to develop bold and practical advice to the legal profession, and in particular the Law Society of British Columbia.” It canvassed the varying reactions of the law school Dean, the Law Society President, and a local poverty law practitioner.

As politically blinkered as LAW 481C.002 appeared to be, the course approached the central question of how to improve access to justice in the same well-meaning way as countless endeavours before it—the legal community talking to itself. The pattern of crisis management is familiar at this point; cries of concern over the state of access to justice are finally echoed by high-ranking officials like the Chief Justice and the Governor-General, the mainstream media takes note, and very smart lawyers eventually busy themselves with the task of reforming the same broken system that many of them helped to build and that, in turn, helped all of them to prosper.

While rooted in the very best of intentions, this standard approach to justice reform fails to consider the opinions and suggestions of the only people who can speak fully to the severity of the access to justice crisis—the people who sought to resolve their legal problems through the justice system and who failed somewhere along the way. They do not typically present themselves to the downtown offices of a national law firm or to the Benchers of the Law Society. Nor do they typically present themselves to the institutions of government. Sometimes they engage with community advocates and front-line social service (but not always legal service) organizations. More often, they become self-represented litigants (SRLs) or choose to avoid or ignore their legal predicament altogether.

There have been good studies regarding the profile and plight of SRLs in Canada, but precious few studies on people who have turned away from our justice system because of its complexity and cost. And the studies that do exist tend to dwell paternally on the legal needs of SRLs and would-be SRLs, rather than treat them as uniquely situated to offer good ideas for improving the structures and processes of the justice system. Reform initiatives too often seek to increase access to justice by redirecting the flows of litigants— opening new doors and closing old ones— when they could do more by listening carefully to the experiences and insights of litigants (particularly SRLs) and then adapting systems to them. They could learn from Temple Grandin in this way.

In other words, reform initiatives could benefit hugely from greater and more sensitive public consultation. They could learn from Finland where the government has approved crowd-sourcing technology behind a new “Open Ministry” platform which will enable registered voters to propose new laws for adoption by parliament. Or they could learn from Iceland where the government is posting draft clauses of the country’s constitution on its website, on Facebook and on Twitter, and then actually incorporating people’s comments into the document. These initiatives recognize the real and democratic value of treating end-users as unique advisors rather than as things.

If such heavy reliance on social media is too much too soon for our justice system reformers, they could simply set up suggestion boxes (literally or metaphorically) in courthouses throughout the country. Or they could engage focus groups. However they do it, they need to spend less time listening to the echoes inside the box, and more time listening to the voices outside the box. Those are the voices that truly matter.