Column

Memoirs of an Unwitting SRL

NSRLP
Author: Jeff Rose-Martland, NSRLP Advisory Board, NSRLP

[Jeff Rose-Martland is a writer and SRL from St. John’s, Newfoundland, and member of NSRLP’s Advisory Board.]

Envision a self-represented litigant. Did you get a picture of someone in court, poorly dressed, who doesn’t know what they are doing? I see that, and I am an SRL. The more-accurate mental image of a person at their dining table struggling with legal documents until the wee hours rarely comes to mind. Possibly because it’s draining to even consider, let alone do. In point of fact, a courtroom may not even be involved; there are a variety of circumstances that will turn one into self-rep.

If asked when I became an SRL, I respond with my most recent matters. But recent discussions have caused me to realize that I’ve actually been doing this for most of my adult life. Because we focus on the Self-Rep-In-The-Courtroom, we forget all the other circumstances where DIY-lawyering happens. All those boards, tribunals, appeals boards, and the lesser, limited jurisdiction, courts, where supposedly lawyers aren’t used: small claims, traffic, bylaw/ticket offences, etc. I certainly forgot all of that. When I stopped to consider those situations, I discovered I’ve actually been a self-represented litigant for about 30 years.

My first go was in criminal court. It wasn’t anything serious: I was facing Possession of Alcohol by a Minor. I’d been 18 rather than the required 19. I didn’t even speak to a lawyer, let alone retain one. I didn’t see the point: I’d been carrying a half-case of beer. No point in dragging that experience out. I plead guilty, accepted my fine, and got on with life. It was an eye-blink of time, decades ago, and so trivial that I didn’t even think about it making me an SRL.

Sometimes government can make you represent yourself. That happened when I appealed a student loan decision back-when; I was told I wasn’t permitted to have a lawyer when I appeared at the tribunal. Which implies a less formal, more easygoing affair. Except that the tribunal consisted of a panel of a dozen or so government lawyers. This unfairness was further magnified by the board demanding to know the legal grounds for my appeal, legislation and precedent. What??? My half-complete electronics program hardly prepared me for that. For that matter, I’m pretty sure I couldn’t have even tracked down the legislation, as the government of the time tended to refuse to hand out information to private individuals. Obviously, the board ruled there were no grounds for any appeal and I was contemptuously dismissed. Arrogant glares chased me from the room.

Traffic Court is intended to be mostly lawyerless. After all, the fines and charges are generally small. I’d successfully challenged several traffic and parking tickets, getting them dropped through a pre-trial conversation with Crown counsel. But one time, the Crown wouldn’t speak with me, and I found myself suddenly in front of the Court, with no preparation. But I was certain of my case, that logically I had the right to block my own driveway, especially as I had been loading my vehicle. The judge dismissed my opening statement for being an argument and not in compliance with The Rules. The Crown called its witness, the traffic enforcement officer, who confirmed the ticket. I attempted to question him, and the Crown immediately objected, “Your honour, clearly the Defendant has no familiarity with Court procedure or etiquette, and the Crown requests that the Defendant be barred from further wasting the Courts time.”  Objection sustained, case immediately decided against me. Yes, the Crown was correct, I didn’t know what to do in a courtroom. Still, I felt hard done by. I hadn’t had any opportunity to present my side, and I’d been treated pretty offensively. Once again, I felt the sting of my lack of a law degree, and the contempt of those who do.

I need to point out that both of these circumstances were decades ago, and, compared to then, the legal profession has improved its attitude as regards we-without-lawyers. What still triggers my outrage, however, is that I feel I lost, not on facts or law, but simply because I didn’t have a lawyer, when I’d understood that I couldn’t have one and didn’t need one.

Not all my experiences have been so humiliating, nor did I always lose.

There’s the Employment Insurance Appeal Board. As with the student loan appeal, I’d been told I couldn’t have a lawyer. The board was two lawyers and a civil servant. I successfully appealed an EI decision, even though I openly admitted that I had no grounds under the Act. Logic on my part, and compassion on theirs, carried me through. Looking back as an SRL, it wasn’t just my success that was important. I was treated like an equal, like I mattered, and that made a huge difference.

It’s interesting to note that even when lawyers are barred from a process, they can still be snuck in. A couple decades ago, I filed a complaint with the Labour Board over being terminated when I tried to return from sick leave. After preliminaries, a settlement conference was arranged with a Labour Board mediator. Both sides were told, in no uncertain terms, that this was for the parties only, and counsel was not permitted.

Imagine then my surprise when my former employer turned up with a lawyer, complete with business card listing the correct post-nominals. I informed the chair that I’d never met this guy during my employment and that he was a lawyer. He declared he’d never passed the bar; he was a labour relations consultant on contract. He may have a law degree and training, but he wasn’t a lawyer. He also wasn’t counsel because, under terms of his contract, he was an employee, a HR manager. The Chair wasn’t impressed, but couldn’t eject him. The conference continued and I had to cope with this guy; my former bosses didn’t say a word. That’s completely contrary to the Labour Board process, which is intended to get employer and employee to work things out informally. Naturally, we failed to reach agreement.

I moved for arbitration. I tried to get a lawyer, but no one was interested in taking my case on a cost-recovery basis. Having read the documents I’d already filed, two lawyers told me I seemed quite capable of representing myself and encouraged me to do so. I had become more confident, and legislation was now available online, so I took up my own cause.

I arrived a bit early for the hearing. So had the arbitrator, a retired judge. He was quite friendly and he took the time to explain that the process was less formal than court, and that he’d make sure both sides were heard. We chatted a bit more about nothing much until the other party arrived: my boss, my manager, and their lawyer.

The lawyer was dragging a wheeled case with an encyclopedia’s worth of dead trees piled on top. It took him four arm-loads to get it all on the table. I looked at the arbitrator, who was frowning and glaring at the lawyer. As the stack of paper grew thumpingly on the table, the arbitrator spoke, “You should know better! This isn’t court and I’m not required, nor inclined, to read all that.”  The lawyer shrugged and defiantly responded, “I guess we’ll see.” The lawyer then moved for dismissal of the case and started reaching for documents. The arbitrator said he was deferring judgement on the motion. The lawyer objected. The judge reminded him that this wasn’t court, and he’d consider it later. The lawyer started to complain more and the judge suggested the lawyer hold his tongue, with a look that strongly hinted that he could lose the case right then. I was trying hard not to giggle. It felt good to know there are people who could put lawyers in their place.

The arbitrator let me have plenty of leeway with my questions, and asked me questions to flesh out my position. He was patient and generous… with me. Every time the other party got to speak, the lawyer re-stated his call for dismissal. After a while, even his clients were getting annoyed with this. The arbitrator repeatedly said the hearing would proceed, regardless, and he would decide that part after the fact.

For specific legislative issues, and because my employer had lots of experience pulling shell games to dismiss with impunity, the call for dismissal did succeed and I lost the case. But I didn’t feel bad about it then, and still don’t. That’s down to the way I was treated by the arbitrator: I was heard, I got to state my position, I was permitted to question my former employer at length. Not being a lawyer wasn’t held against me. Even though the arbitrator decided against me, I still respect the way he treated me: with respect.

That was also the situation in Family Court.

As with other jurisdictions, increasing numbers of people are appearing unrepresented in Newfoundland & Labrador Family Court. The system was forced to adapt. Provincial Rules have been updated, forms made clear and accessible, and even the culture has shifted towards a service model. Judges are active in proceedings, explaining procedures and tests, and asking probing questions, so they can get the information needed to make decisions. Myself and the other party were both self-representing, and were equally treated with respect. That system has adjusted to fit us; something many other systems are trying to avoid.

Until very recently, I wouldn’t even have said what I was doing was DIY lawyering. Not until my recent, ongoing, legal problems. I didn’t have a term to describe what I was doing until I came across the National Self-Represented Litigants Project. My involvement with the NSRLP since 2016, and more generally with access to justice issues, has made me realize how wide-ranging self-reps are. SRLs don’t come from hearings or decisions or even initial filings. You become a self-rep when you wind up defending you rights, especially the right to be heard.

I never set out to be my own lawyer. There was never a point where I decided to explore the legal world for my own edification, to have a go at have-a-go-lawyering, to try hammering down the doors of justice armed only with attitude and a foam bat. Every time I have been my own counsel, I was compelled by circumstance. Sometimes I was a Respondent-Defendant. Other times, I was just trying to get fair treatment. In all these cases, getting a lawyer wasn’t possible. Self-representation was the only viable option, poor though it is.

Looking back now, I’ve been at this for a very long time – three decades. There’s probably many, many people out there who have likewise been unwitting self-reps. If you’ve ever used any of the quasi-judicial systems of boards and appeals; appeared before Traffic, Small Claims, Tax or other lower courts; participated in a settlement conferences or arbitration – even where lawyers are not permitted – then you, too, have been a Self-Rep – check your closet for the t-shirt.

Comments

  1. Perhaps public school system policy makers and program designers could take social-science classes to a more practical level than “warm-fuzzy-cold-prickly” pseudo psychology tutorials and instead provide Pubic Legal Education (PLE) to high-schoolers BEFORE they graduate into the age-of-majority.

    The “Government” might consider the cost-benefit to teaching students to READ and UNDERSTAND CONTRACTS and that it is OK to ASK QUESTIONS and not be ashamed or bullied by more senior family or others saying “just sign it”.

    Provide PLE early in the game so that there are less chances for future-us finding ourselves in such positions as Jeff mentions.

    As much as we desperately need to provide resources and the democratization of information to those finding themselves self-representing on a legal matter, up to 80% of the population facing a legal proceeding – I repeat, up to 80 PERCENT -perhaps the Government would be so inclined to also consider heading-off-at-the-pass, the high public expense of court proceedings, and instead teach law to teenagers and young adults before they graduate from grade 12.

    Practical law…such as reading and understanding the Constitution; the power of one’s signature; that contract clauses CAN be negotiated rather than accepted as boiler-plate; what to do if one get served legal documents; how to deal with sharp-practice and bully-counsel and court; how to “pre”-pare and organize documents from the get go and so on and so on.

    Teach law and basic legal proceedings upfront. If the public only understood what it is costing to throw band aids on the back-end of an incredibly overly complex system.

  2. ps. and to acknowledge Jeff’s reference to being heard and respected despite a negative outcome; I fully concur.

    One particular Justice in the Superior Court of Ontario left me feeling very much that they had taken me seriously and respected my efforts as a self-represented party, particularly after I had taken the time to read the practice directions and quoted them into record.

    I left the courtroom that day saying to myself that, even if this Judge decided against me, I could accept a negative decision from them knowing and feeling they knew I had made every effort as best I could as a SRL and that they respected me as an individual doing my best.

    That Judge gave me hope in our adversarial system. Why are we not changing “adversarial” to “healthy”?

    A complex adversarial court system is a public health matter.

  3. Jeff Rose-Martland

    Slaw response

    I did Canadian Law in grade 11, decades ago. We covered Charter Rights, civil vs code law, the legislative process, how to read Acts… A really good introduction and foundation course, taught by a very good teacher. Unfortunately, little of that makes any difference in the courtroom.

    I agree that these things should be taught throughout school, particularly Charter Rights and the UN Declaration on the Rights of a Child. Such things should start in Grade 1. However, as SRLs know too well, knowledge required in the courts is about procedure, Rules, and intricate and alternate word meanings. Even lawyers mostly learn that on the job, not in law school. I did a number of free online courses from law schools – most of the big law schools offer some – and while they were useful, they still didn’t prepare me for the reality of the legal system.

    It’s like doing a bunch of education about balls – what a ball is, what they are made from, how big, what colours, the history of balls and ball-games, the use of balls in entertainment and warfare – then being put on an international cricket squad. All that other information doesn’t mean anything because you don’t know the game. Everyone around you knows the game, the umpire expects you to know the game, the crowd knows the game and has suggestions in what you should do, but you don’t have a clue. Except for being able to identify the ball.

    The rules and procedures of Court have evolved over hundreds of years, as the law profession has become more specialized and insular. The processes are designed to keep the system running smoothly. Except, in order for that to work, everyone needs to know, or be able to understand, what the process is.

    Then along come SRLs. We may have read the relevant legislation, know our rights, checked out some cases. We may be highly literate and able to write. We may have high educations, as high or higher than an LLB. It still doesn’t matter, because we don’t know the rules and the words don’t mean what we think they do. That smooth and speedy judicial process is going to slam into us like highway traffic on wildlife.

    And just like roadkill, it’s not really anyone’s fault. Sure, we SRLs deserve to be treated decently, and the System needs to remember why it exists, but it’s unfair to blame the System for its evolution. Besides, finger-waving won’t fix the fundamental problem: that people have legal issues and lawyers aren’t readily available.

    Something needs to change in there. One route is to redesign the processes based on a no-lawyer standard (as NL Family Court has). Another is some sort of publically funded legal-care scheme, where everyone gets a lawyer for free (like medicare, only law). There’s the public education route, preparing everyone for representing themselves; or a free-private education scheme, where law schools offer courses to self-reps. Or any combination of those, or entirely new approaches.

    What should be clear to everyone is that the current situation is not sustainable. SRLs aren’t going away. Legal costs aren’t going down. The courts are slowing down, of necessity, to accommodate those without legal training. As those conditions continue, or worsen, we face a future where there is no justice for anyone.

    There’s a case to be made that we are already at that point.

  4. “…we are already at that point.”

    You were fortunate to have had a high-school law teacher and one that taught you basic fundamentals such as Charter rights. Not everyone receives that in their educational experience.

    From my experience, I have learned how utterly important it is to quote the Charter, caselaw, Rules and Practice Directions into court record. I learned this by noticing the response of those in the system when I did provide on the record quotes and when I even had to quote specific cases to counter staff so that they would accept my materials and not reject them. First words they would say, “are you a lawyer?” my response, “No. I’m a self-rep who quotes caselaw, though, and has learned my rights.”

    I had also been recommended a marvelous little book called Procedural Strategies for Litigators by James Morton by another self-rep. This book, although I am told no further editions will be published, provided me a wonderful complimentary easy to read resource to plain language resource on how to stick-handle sharp-practicing lawyers and intimidation from the bench and offered hacks on some procedures.

    The SRL said that they felt if there were the Rule book then there might be a Playbook…and he found it. It is a shame no further editions are anticipated.

    If the Magna Carta came into being over 800 yrs ago, it seems it may take that much longer to restructure the justice system.

    My present concern is observing caselaw publications that seem to read as if they were not really actual cases. I would like to know who polices and verifies caselaw publications to ensure they are not created and published for ulterior purposes. Is there such a thing as caselaw security?

  5. If my comments read disjointed please know that some of us SRLs have cognitive disabilities. Given the justice system requires masterful concentration, organization, administration skills and a 4 year degree in how-to-write-think-and-communicate-clearly as an able-minded person, the justice system is next to impossible to experience justice for those with cognitive disabilities, let alone comment on a legal blog post.

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