Time to Shatter the Stereotype of Self-Represented Litigants

Vol. 20 No. 1

By

“I have no choice – I am unrepresented, not self-represented. It’s not that I think I can do this better than a lawyer. I have no choice. I don't have $350 an hour to pay a lawyer.”
“Do these people imagine that I am enjoying this? I am here because I have no other option.”

Dispute resolution professionals who work regularly with self-represented litigants (SRLs) in mediation or settlement programs have probably heard comments like these, which are taken from interviews I conducted with self-represented litigants for an empirical study of SRLs in family and civil courts in three Canadian provinces. In fact, more than 90% of SRLs interviewed in the study expressed similar sentiments.[1]

This research makes it clear beyond doubt that the most significant reason for joining the ranks of the pro se litigants, who now constitute the majority in some family courts, is the high cost of legal services. More than half the 259 study respondents had previously retained counsel but had run out of funds – or in some cases, eligibility for public funding (13%).

This finding is also consistent with other studies in the United States, Canada, and the United Kingdom,[2] showing that many struggle without an adviser or lawyer and may feel vulnerable to a more experienced opponent, yet are unable to afford expert assistance. Both dispute resolution practitioners and lawyers who regularly advise SRLs in pro bono services understand that many feel disengaged from – and even abandoned by – the legal system because they cannot afford an agent to help them navigate its shoals.

My recent study shows that most SRLs are extremely anxious, overwhelmed by the court process, and desperate to do as good a job as they can in the face of skepticism from many lawyers and judges. Most are SRLs because they see no other option, and not out of choice. As one study participant said, “I was scared out of my mind. But I had a hard choice – either learning to do this for myself or letting my daughter go forever. I didn't know that even if I learned how to do this, anyone would believe me. But I could not give up without trying.”

However, outside a small committed group of justice system professionals working to improve the SRL experience, a pervasive negative stereotype still drives much of our thinking about SRLs. SRLs are widely regarded – not only by many lawyers and judges but also in the wider public culture – as unreasonable, angry lawyer-wannabes, out of touch with their own limitations. Many think SRLs are gaming the system or milking it for sympathy and using to their advantage the courtroom chaos they sometimes create.[3]

The Study

When I opened my study in December 2011 using a combination of traditional solicitations (such as flyers and posters in courthouses) and social media (a dedicated website and a Facebook page), I was overwhelmed by a deluge of people who I quickly discovered did not fit the unreasonable/crazy/angry stereotype. They were “ordinary folks,” struggling to do their very best in a system they found mostly unfathomable and frequently hostile. Sixty percent were litigants in family courts, where the numbers of SRLs now reach almost 80% in some urban centers (in smaller court centers, SLRs commonly outnumber represented parties).[4] These figures are mirrored, by the way, in US courts.

Many of the formerly represented SRLs had expended up to $20,000 on legal costs, and some had spent more than $75,000. Many of these respondents were disillusioned by the poor “value-for-money” that they felt their significant investment represented. Many had searched fruitlessly for a lawyer to assist them on a task-by-task basis (using what we would call a limited-scope retainer or LCR, also called unbundled services), typically going through the yellow pages and calling every local law office in an attempt to find a lawyer who would review court paperwork before submission, look over documents from the court or the other side, or even come to court for a day. Other professionals provide some services on a piecemeal basis, and these respondents could not understand lawyers’ reluctance to provide this type of affordable assistance. (Just 12 of 259 SRL respondents were successful in finding a lawyer willing to “unbundle” for them.)

There is a crisis of affordability in legal services. The conditions producing this crisis – declining public assistance for litigants, the now-common cost of legal services at upwards of $250 an hour, and the pervasiveness of traditional billing arrangements (a retainer and the billable hour) – are the same in the United States and Canada.

If I had a dollar for every lawyer who has cited to me the old adage “he who represents himself has a fool for a client” since I began this study, I would be a wealthy person. The self-represented aren’t fools. But many told me that they feel overwhelmed and disempowered. Many SRLs spoke of their struggles with a justice process that, in the words of one, “is a system designed to make smart people feel stupid” (50% of respondents had a university degree). In particular, they singled out court forms and procedures that are complex and arcane; a dearth of information on proper courtroom behavior, procedural etiquette, and cultural “know how” when they appear before a judge (usually after many hours of anxious preparation); unreliable and sometimes inconsistent (or incomplete) information online, replete with legalese, that does not meet the promise of “access to justice”; and waiting in interminable lines at the court counter, only to be told by a beleaguered clerk that he or she cannot give “legal advice” (a default definition that seems to have expanded to include almost every kind of guidance to a SRL, short of handing out a form). Each of these complaints was remarkably consistent across courts (both family and civil) and jurisdictions (three provinces participated in the study).

The most common and significant complaint among SRLs is a lack of kindness and at worst, hostility of many lawyers, judges, and sometimes court staff, although the latter group generally scores significantly higher with SRLs for overall helpfulness and empathy. SRLs described numerous and consistent instances of being treated with incivility and even contempt by some judges and lawyers. These reports suggest that this attitude is frequently driven by the stereotype of the SRL as an angry lawyer-wannabe. SRLs certainly present many dilemmas for counsel representing the opposing party in ensuring that their own client is not disadvantaged – but it is possible -- and important -- for opposing counsel to conduct themselves professionally.[5] The negative stereotype unhelpfully assumes that lawyers are the victims and SRLs are the aggressors.

This experience is most vividly captured by a subset of lawyer SRLs in my sample who said they could not afford themselves or a similarly qualified lawyer. For example, one study participant stated:

“I wouldn’t have believed it could happen. I have seen it with my own clients, but I didn’t think it would happen to me. The lawyers strategize to marginalize you because you are a SRL, … painting you as the angry stereotype SRL …. (T)he judge allows herself to be corrupted by this SRL stereotype.”

While it is understandable that the patience of members of the bench and the bar is sometimes tested by hapless SRLs, the assumption that SRLs are deliberately creating difficulties is a classic insider-bias attribution error – assuming intentionality in the face of simple confusion. The SRLs in my study put in long hours at night, after working all day, to prepare for the next day’s court appearance, and they wanted desperately to succeed – but often found themselves overwhelmed. As one respondent put it, “It’s like going into a gun fight armed only with a knife.”

There is also a danger of conflation between the small number of mentally unstable people who come to the courts, sometimes declaring bizarre pseudo-legal arguments, and the majority of SRLs. Of course there are people with mental health problems in the family courts – these include not only litigants, but also some professionals. There are also many distressed and traumatized people in family courts, represented or not. But these realities suggest that we should be doing a better job of taking care of them, not demonizing them.

Dialogue

A recent Dialogue Event at the University of Windsor brought together 45 justice system actors – judges, lawyers, regulators, court services and legal aid board managers, and policymakers – with 15 SRLs to discuss my research findings. One of the goals of the event was to challenge the stereotype of SRLs held by many justice system players by including self-represented litigants in the dialogue – and the equally rigid image of judges and lawyers held by some SRLs (that none of them “care”). In this respect, the event was a resounding success. In the words of one SRL delegate:

“From the moment I stepped off the plane, … I encountered an experience which I now consider to be the exact opposite of my interactions with the legal system. The chaos was replaced with order, indignities with respect and cruelty with kindness.”

And from a justice system professional:

“The courage of the SRLs who presented and spoke at the dialogue was inspiring. It is now incumbent upon the participants to ensure that their voices are heard…. [This] was a great opportunity for those of us in the justice system to see how we look to outsiders.”

The Dialogue Event,[6] along with my recently released Research Report, make a number of practical recommendations addressed to court services, the judiciary, community agencies, and policymakers as well as the legal profession. Reflecting the study data, they point to a crisis of faith in the justice system that is in part the result of the crisis of affordability of legal services.

Recommendations

What can legal and dispute resolution professionals do to be prepared for the rising numbers of SRLs?

The first challenge is to see the exponential rise in family SRLs as the responsibility of all members of the profession, including those with viable practices and plenty of high-end clients. The public reputation and legitimacy of the legal profession are hurt if the profession represents (literally) only a tiny fraction of the population, primarily corporations.

Knowing that users of court services perceive the courts as distant, unaccountable, and chronically adversarial, the legal profession needs to be willing to listen to criticism and embrace the challenge of considering new ways to provide services to family clients (note that fully 86% of study respondents reported that they had sought and/or continued to seek legal advice after they started to represent themselves, but could not find pro bono or unbundled services).

Recalibrating their role in relation to the SRL phenomenon requires lawyers to share the territory. Some legal services can be affordably and competently delivered by a paralegal or other specialist (such as a conflict coach, mediator, or counselor). What skills and expertise are needed to competently carry out the tasks that make up family legal services? Is the particular expertise of a family lawyer critical to legal problem diagnosis? To courtroom advocacy? Probably yes. To form completion? Financial calculations? Client updates? Maybe, maybe no. Coaching on stress management and self-care? Probably no.

Whatever conclusions we draw from thinking through these ideas, (and they may be case-dependent), this is an opportunity to consider what ways a lawyer brings unique value to her client and to re-evaluate the terms of that relationship. Relying exclusively on ”knowing more” is no longer enough in the Internet age – the age of professional deference is over, and we have to show our value to clients in ways other than as the gatekeepers to information. Respondents in this study wanted their lawyers to help them understand and appraise their options, raise and manage settlement ideas, explain what the lawyers were doing (and why it cost so much), and allow clients the option of doing some of the work where this would save them money – rather than simply telling them what is “best” for them. Many clients and SRLs alike expect an alternative relationship with their lawyer to the “lawyer-in-charge”[7] model.

Mediation and other settlement processes continue to hold promise for family litigants, but respondents reported a disappointingly low level of awareness of mediation, despite the fact that each of the participating provinces offered it. Simply offering mediation is not enough – some SRLs expressed reluctance to go into a mediation or settlement conference unrepresented when the other side had an experienced lawyer. Court personnel, members of the legal profession, and proponents of mediation need to think about how we prepare SRLs, as well as represented clients, to use mediation and other settlement processes effectively. Who should do this? Is this a role for lawyers or some other paralegal professional?

For lawyers willing to rise to this challenge, new models of client service and practice are emerging, including coaching, specializations in negotiation and mediation, and collaborations with other critical specialists including financial planners, child welfare specialists, mental health professionals, and paralegals. The SRL population is vast and growing, and many of these individuals would willingly pay for the services of a lawyer – they just cannot afford to do so using the present retainer/billable hours model. My study shows what some lawyers have suspected – there is an enormous, untapped market of clients who will pay for unbundled legal services.

Looking Beyond the Stereotype

As lawyers and dispute resolution professionals, we must look beyond the stereotype and understand who most SLRs are: well-intentioned, often overwhelmed people who want – and are willing to pay for – affordable expert help. We need to acknowledge how great their numbers are and why. Only then will we see this crisis for what it really is: an opportunity that we should welcome.

The justice system is paid for by the public, and its users are entitled to receive value through innovations that reflect their needs. We can and must rise to the challenge.

Julie Macfarlane is a Professor at the Faculty of Law at the University of Windsor and at the Kroc Institute for International Peace Studies at the University of Notre Dame. She is continuing her work on and with SRLs for the next 12 months. She can be reached at julie.macfarlane@uwindsor.ca. The work of the National Self-Represented Litigants project continues: see www.representing-yourself.com.


[1] Julie Macfarlane, The National Self-Represented Litigants Research Project: Identifying and Meeting the Needs of Self-Represented Litigants (2013), available at http://www.representing-yourself.com/PDF/reportM15.pdf

[2] See Rachel Birnbaum, Nicholas Bala & Lorne Bertrand, The Rise of Self-Representation in Canada’s Family Courts: The Complex Picture Revealed in Surveys of Judges, Lawyers and Litigants, 91 Canadian Bar Rev. 67 (2013); Bonnie Hough, Self-Represented Litigants in Family Law: The Response of California’s Courts, 1 Calif. L. Rev. Circuit 15 (2010); Office of the State Court Administrator, Report to the Florida Legislature on Family Court Self-Help Programs (1999); Department for Constitutional Affairs, Litigants In Person: Unrepresented Litigants in First Instance Proceedings, 2005-2 (U.K.).

[3] This framing is evident in many discussions with lawyers and regularly appears in the legal press. See Georgina Carson & Michael Stangarone, Self-Represented Litigants in the Family Courts: Is Self-Representation an Unfair Tactic? MacDonald & Partners LLP, available at http://www.macdonaldpartners.com/article_files/selfrepresentedlitigantsinthefamilycourts.pdf.

[4] Lynne Cohen writing in Canadian Lawyer 25:8 (August 2001). See also Judicial Council of California, Statewide Action Plan for Serving Self-Represented Litigants (2004), available at http://www.courts.ca.gov/documents/selfreplitsrept.pdf.

[5] In Kent v. Waldock, the appeal judge commented that it was not appropriate for opposing counsel to call the self-represented plaintiff “a cowardly thug.” 2000 BCCA 357, para. 46 (Can.).

[6] Julie MacFarlane, Dialogue Event Report, The National Self-Represented Litigants Project (May 11, 2013), http://www.representing-yourself.com/dialogueevent.html.

[7] See also Julie Macfarlane, The New Lawyer: How Settlement is Transforming the Practice of Law 165 (2008).

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