[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.