An Open Letter to the Canadian Judiciary: a First Step towards a Dialogue between Reasonable People?
One of the projects we have been working on at NSRLP for this month’s Action Step focus – Judges and SRLs – is an “Open Letter”, written by a group of self-represented litigants, addressed to the Canadian Judiciary.
The “Open Letter” – which is reproduced below – is the result of discussions and debate between myself and a group of ten SRLs whom I approached earlier this summer and asked “If you had their ear, what would you say to the Canadian judiciary to help them to better understand and relate to SRLs?”
The result is a pointed, concrete, insightful and pithy set of insights aimed at increasing the awareness and understanding of judges who deal on a daily basis with people without counsel in their courtrooms.
The Open Letter sets out some important misconceptions that need to be challenged – beginning with, we are not here because we thought this would be fun. In fact, self-representation is extremely stressful and difficult – for most, a final recourse not a preferred choice – and made harder still by a pervasive sense that SRLs are often not listened to or taken seriously by the judges before whom they must appear.
Building on our proposal for a “meeting point” between “reasonable people” (http://representingyourselfcanada.com/2014/09/04/judges-and-srls-moving-the-conversation-out-of-the-courtroom-and-into-a-meeting-place-for-reasonable-people) we hope that the Open Letter can be a first step in a dialogue between judges – who are trying to adjust to the biggest change in their job description in the last 150 years – and SRLs – who consistently complain of poor and unfair treatment in the courtroom.
Surely, we are asking, we can all do better than this?
Later this month we are hoping to publish the results of a second project, in which NSRLP is facilitating discussions among a small working group of judges from across Canada. These judges are concerned about how they can effectively respond to the SRL phenomenon, and are sharing their practice – new and evolving – to integrate SRLs into their courtrooms and enable access to justice for the unrepresented.
We invite you to add a comment to the NSRLP blog to get the conversation started.
AN OPEN LETTER TO THE CANADIAN JUDICIARY
FROM SELF-REPRESENTED LITIGANTS
We are a cross-section of individuals who have represented themselves in court over the past several years. We have different stories to tell – some of us have been family SRLs and others have been civil litigants – but our experiences are very similar in many critical respects.
One common understanding of our own experiences in interacting with the judges in our cases is that many judges regard us as annoying obstacles unworthy of compassion and understanding. Although some of us have experienced welcome assistance and empathetic treatment from a particular judge, in large measure we have found our interactions with members of the Bench to be negative, and sometimes downright distressing.
This Open Letter is written to our Canadian judges to present to you three, widely shared aspects of our experience that you have within your power to change, in your courtroom.
We are not naïve enough to imagine that any one part of the legal system can “fix” all the problems associated with the high costs of legal services and the rising number of self-represented litigants. But we do believe that as judges you can make a difference, and to this end appeal to you to consider our three requests.
- When you meet us, please do not assume that we are enjoying ourselves – we are not. Please do not assume that we have chosen to represent ourselves because we believe that we can be brilliant trial lawyers.
The most important (and simple) reason that we are representing ourselves is that we cannot afford – or can no longer afford – the cost of legal services. This makes self-representation a necessity, not a whim or an adventure. If we could afford to pay for competent and effective legal representation by someone who was competent to assist us – believe us, we would do so.
By the time you meet some of us we have become battle-weary in the litigation game. We may react irritably to the constant suggestion that we should go and hire a lawyer since we do not have the means to retain counsel. This may be desirable, but it is entirely unrealistic. To make matters worse, many lawyers are leery of taking on the unknowns of a formerly self-represented case, and few offer unbundled or hourly assistance.
We are here because all other choices have been removed. Self-representation is a poor choice – it is incredibly exhausting, stressful and difficult. Over the course of months or even years the cost of legal services has forced us to become our own advocates – and now, for better or for worse, we are the experts on our case to whom you must relate. Please, be mindful of this reality when you talk to us.
- Treat us with respect, talk to us like fellow citizens
SRLs learn in a few short months to become their own lawyers. This is a difficult and stressful crash-course education. Most SRLs work very hard to “get it right” for you. Given the complexity of the system that we are learning from the ground up, it is not surprising that we sometimes fail.
More than half the family litigants, and more than a quarter of civil litigants that appear before you are without counsel. This is the new reality of the courts in Canada. Your commitment to communicate clearly with us, avoiding excessive legalese, and taking the time to explain complex legal terms and procedure will help us to participate meaningfully and productively. Please do not talk “past” us or “over” us – for example to counsel for the other side or to duty counsel. We are not children, but fully enfranchised participants, but we don’t always have the tools we need to take advantage of this.
SRLs are already at a disadvantage – and while we understand that the judiciary cannot fully redress that imbalance you can take steps to avoid making it worse. We may not be legally trained but we are intelligent people – please treat us as peers and allow us to learn.
Think of us as visitors from another land with very different cultural traditions, who have just been swept up on your shores – and show us the courtesy of an open-minded welcome.
We also need to see that the rules that we strive to master – including how to comply with procedural requirements and how to present evidence – are applied to everyone in your courtroom in the same way. We understand that you exercise judicial discretion, but are concerned when we see this being exercised in a way that is prejudicial to SRLs.
We need your clear and respectful explanations and your fair exercise of discretion to avoid turning the courtroom into a playground for experts where amateurs are eaten alive – giving the impression that justice is a commodity that is bought and sold, rather than a universal good belonging to us all.
- Recognize that we are probably not at our “best” when we are invested in self-representation
Another way in which SRLs are disadvantaged is that we often appear before you in a state of emotional distress. Often a great deal – for example future relationships with our children, significant monetary compensation – is riding on our appearance, and we are concerned about whether our performance will provide us with justice.
Inevitably we have a strong emotional investment in our case. That investment – and our determination to succeed – is often deepened by the obstacles we face in representing ourselves and navigating the legal system. We believe that if you were in our shoes, speaking to your own matter, you would probably feel the same way, even as an expert in the system. Bearing both the burden of justice and of advocacy for something intensely personal was probably not anticipated by our systems of justice – but it is the present-day reality for many of us.
Of course, our presence makes your job harder. But if you could accept and acknowledge our reality – in your demeanor, in how you speak to us, in how you encourage our participation, and in the time you take to offer some procedural explanations – it would help a great deal. Taking this approach from the Bench would enable us to feel calmer, and probably more functional in the courtroom.
If as part of the matter that you are trying you are assessing our character – as a parent, as a spouse, as a creditor, as a former employee – please recognize that you are not seeing us at our best. It is hard to present one’s very best self in what feels like a hostile environment in which we need to retain mental alertness, fend off challenges, and demonstrate the integrity of our character. You may enhance your courtroom climate, put us a little more at ease, and get better results by not assuming the worst about us.
In conclusion: As SRLs, we believe that we should expect to be treated with respect, listened to, and included as much as possible in the hearings in which we must represent ourselves. Sadly, too many of us have had too many experiences in which we did not receive this type of basic courtesy or enjoy what felt like “due process”.
We write this letter not to lay blame, but to try to explain the widespread experience of SRLs in our legal system and to solicit your support in bringing about small, meaningful changes in the climate of the courtroom to make it a friendlier and more inclusive arena for some of life’s most challenging contests.
Making us feel like we belong and as welcome as any other of the professionals in the system would go a long way to helping us see that the system belongs to us, serves us and includes us. We are ready to take your input – SRLs are always learning! – regarding what we can do to ease the difficulty of a situation in which lay people rather than lawyers are regularly before you. Our goal here is for a productive dialogue, between reasonable people.
Some of us who have ongoing matters did not feel comfortable putting our names to this letter. The remainder of us are, respectfully:
Desmond Collins, North Bay
Wanda Cummings, Halifax
Andrew McGinn, Toronto
Gillian Leigh, Halifax
Jennifer Muller, Vancouver
Tim Summers, Edmonton