I was at a very special party last Saturday evening, wonderful not only because of the good food and lively company present, but because it was a celebration of the unique justice more likely possible when people represent themselves.
A Good Decision
It all started last September, when Erin and Mia, women I then knew only casually, asked to meet with me about their court case. In rough shape myself from a heart-crushing breakup, I hesitated to take on coaching anyone through a complicated proceeding. That I did has become one of my best decisions. In the months that followed (seven, to be exact) I learned from them not only how dynamic the concept of justice can be but also, had my belief affirmed that committed partners, supported by loving community, can triumph over problems which would test the metal of a saint.
Six years earlier, my clients (and now dear friends) had bought a property in Nanaimo, a house intended to be both their workplace and home. Having relied on statements made by the vendors (both verbally and in writing) about what good shape the place was in, after taking possession of it, they were joined the next morning by legions of moisture ants which swarmed the bedroom downstairs, were flooded the first time one shower was used and found that flooring had been laid over wet carpet. The problems just went on. Designated structurally unsound, Erin sued.
From the moment the trial began, Erin and Mia met with tactics designed to get rid of their case as soon as possible. Day after day I watched them go into that courtroom, steeling themselves to face senior counsel who used every strategic advantage he could muster in an attempt to shut them down. And day after day both left exhausted but undaunted, ready to go home and prepare for whatever he could throw at them during the next round in court.
As it turns out, their nemesis lawyer was an expensive one, and after 20 days in court, the opposition ran out of money to pay him. They informed the judge that having spent $100,000.00 on their lawyer, they too would now be proceeding on their own. The Settlement Hearing which they had rejected while represented by counsel then became an opportunity. It lasted three hours, for most of that a stalemate.
What happened next was a moment of profound justice: In it, Erin’s heart broke open. Her compassion extended to the people sitting beside her who she had pursued tenaciously for just a little compensation. She insisted they settle this matter right then and there because after all, it was really about the house and not about anyone being “bad”. Without their lawyer, everyone got to be people, not a “position” in a case. A settlement which would allow Erin and Mia to pay some bills and let everyone involved get on with their lives was reached.
But here’s what I really want to say: Erin and Mia’s success goes far broader and deeper than being court room champions. It goes to holding to truth over tactics, demonstrating honour in the face of cruelty and ultimately, finding grace under fire.
I may be the one dressed up like a celebrity in the above photo (taken on party night), but by refusing to let go of justice as they defined it, Erin and Mia were the real stars.
With congratulations and gratitude to Erin, Mia, Joan, Colleen (MacKenzie Friend), Dr. Laurel, Jenn, June, Denise and all the others who made up Erin and Mia’s litigation team. You were an inspiration to me, and a model for all Self-Represented Litigants
Finding the law which applies to your case is critical to your success as a Self-Represented Litigant (SRL). And there is so much of it!
If you’ve had a look at Journey to Justice: A Practical Guide to Effectively Representing Yourself in Court you know that it may not be just the legislation, regulations and rules of court you need to get familiar with, but the case law interpreting them can play an equally important part.
Searching for the case law you need can be time consuming and frustrating.
A choice of databases is only available in a law library, and reviewing them may take many hours or even days of the time which as an SRL, you don’t have.
Waymark’s Research Service
Recognizing this need, Waymark has developed a research service geared specifically to people facing the justice system on their own.
We now have available a research specialist with years of experience working as a law librarian and with a special interest in helping SRL’s prepare their cases for court. Whatever province* you live in, we’re available to help with your research needs.
For rates please see the Waymark Services Page.
*Except Quebec, which has a different legal system
I was honoured recently to be part of a 19-mintue documentary on the subject of Self-Represented Litigants (SRLs) which aired on CBC’s The National. My part of it was filmed over three days last June and my clients and I waited patiently to see what award-winning producer Diane Grant did with the footage that was shot.
“The New Litigants” was compelling in that it showed over and over again the hardships various litigants had suffered facing the justice system on their own. One tearful woman displayed a board-room sized table covered in documents she had collected attempting to obtain child support for 10 years (without success), another had become so discouraged she had attempted suicide. Kevin Hope lost a small claims court application on a “technicality” (?), then, overwhelmed by the stress of preparing for an appeal of a related matter, lost his wife to an unknown illness. The Alberta lawyer interviewed refers to the process as “misery” for SRLs and esteemed Professor Julie McFarlane concludes that SRLs are “powerless”
Since 2007, I have been providing coaching and support to SRLs, none of whom have attempted suicide, died or otherwise dissolved into mental disrepair in the course of litigation. Not all of them won their case, not surprising in an adversarial system where someone always loses, or at least loses more than the other litigant. And many (like Caroline Wilson, a coached SRL who also appears in the documentary) do very, very well.
Although all would agree that representing yourself is time-consuming and stressful, the testimonials volunteered by my clients bear witness to two emergent themes: A sense of control over their case not possible when a lawyer is in charge and a feeling of empowerment as a result of their work searching for justice.
I am grateful to Diane for bringing the matter of self-representation into the public eye. Although I wish more time and attention had been paid to the work that is being done to assist SRLs (especially mine!), people need to know that the growing number of litigants without lawyers signal a paradigm shift in a system which can no longer accommodate its purpose: Justice.
Maybe, just maybe, this was the way to get that done.
Thanks to Diane Grant from the CBC for providing the links to her documentary on CBC tonight.
The CBC article can be found here on the CBC website.
The New Litigants
On CBC News The National
New Year’s Eve, Thursday, December 31, 2015
6:00/8:00/9:00/11:00 pm PST
Channel 3 (Nanaimo & Gabriola)
On the last day of the old year, a new way of practicing law will be featured as part of The New Litigants.
Last June, a CBC TV crew under the direction of award-winning (and former Fifth Estate) executive producer Diane Grant spent three days working with the Waymark Team in both Nanaimo and on Gabriola.
As well as filming me both alone and with Waymark clients, their experience as coached Self-Represented Litigants were recorded. Some time was also spent showing the final edits being made to Journey to Justice: A Practical Guide to Representing Yourself in Court just before it was published.
Although it’s hard to know how much of this footage will make it into the 19-minute documentary being shown (it includes interviews with others from Nova Scotia, Ontario and Alberta) I believe the Waymark Model incorporating the principles of Assisted Self-Representation will be presented as a viable new option for those facing the justice system without a lawyer.
I remember little about what I said but “Way of the future” comes to mind!
The timing is awkward: Who wants to sit around the TV on New Year’s Eve?! If you miss it, we will be posting a link to the show so that you can have a look whenever you like.
To all those who have helped make Waymark grow this year (including Diane and Doug from the CBC) many, many thanks.
Happy New Year everyone!
During an aggressive cross-examination, there is an elephant storming around the courtroom which the traditional justice system chooses to ignore.
Cross-examination has a legitimate purpose in a legal proceeding: It allows all parties to test the evidence which has been given and challenge the credibility of witnesses. However, the way in which it is done can have a dramatic impact on the outcome of a case that has nothing to do with justice.
Although the Rules of Evidence are in some ways designed to “protect” the witness under cross-examination (e.g. witnesses are not supposed to be badgered, or asked the same question more than once), the reality is that the person on the stand can be subjected to a barrage of questions with a ruthlessness and contempt many find intolerable, and meant not so much elicit the truth as to engender confusion and fear in the witness.
Equally nefarious is the “catch more flies with honey” approach in which the witness is beguiled into thinking the cross-examiner is their “friend”.
In either case the outcome is the same – a witness who has been manipulated into unintentionally saying or doing things which are then used against them.
Isn’t this bullying?
We hear almost daily about the horrors of cyber-bullying, and the emotional damage caused by it on the playgrounds and halls of our schools.
So why do we not only tolerate it in the court room, but think that when a distraught witness dissolves into tears on the stand or has been humiliated by a “friendly” litigator, the cross-examination has been “successful”?
More importantly, when as a society we purport to have zero-tolerance for bullying, why is this elephant allowed to continue leaving it footprints all over the courtroom?
“The more litigants understand about the trial process, the closer we come to access to justice.”
Chief Justice Beverley McLachlin, P.C., in a letter to Denice Barrie,
My book, Journey to Justice: A Practical Guide to Effectively Representing Yourself in Court was an answer to the call for action made by the Chief Justice of Canada, Beverley McLachlin. At a conference held in Vancouver several years ago, she said “(i)f we are serious about preserving the rule of law, we must find long term solutions to the access problem.”
The Waymark model (guidebook, workshops and one-on-one coaching) sprung from these words.
Chief Justice McLachlin received a copy of my book after it was published and I’m happy to be able to share a letter from Chief Justice congratulating me on this accomplishment.
This article was featured in Bartalk, the magazine of the British Columbia Branch of the Canadian Bar Association.
Self-representation has its benefits
Common myth has it that being a Self-Represented Litigant (SRL) in the justice system doesn’t work for anyone.
From a lawyer’s perspective, SRLs are even more difficult than the usual opposing party. For starters, they are not required to adhere to the same standards of conduct, nor are they accountable to an organization which governs their behaviour. And being unfamiliar with both substantive and procedural law they are prone to misunderstanding it or, just as annoying, asking opposing counsel to explain it to them. Many seem to have simply never heard of the concept of chronology in preparing pleadings, and when it comes to evidence, rather than entering what’s relevant, the “kitchen sink” approach frequently prevails. Over and over again SRLs make it clear that in almost every respect, they do not speak the language of the law.
Proof of the increasing pressure SRLs create goes beyond the anecdotes of frustrated counsel. Based on feedback she received from 49 Supreme Court Justices and 7 Masters, in 2013 Madam Justice Victoria Grey reported that the mistakes SRLs make with their evidence “cost the court system money, delay decisions, cost opposing litigants time and money, and cost Justices and Masters time.”
SRLs, on the other hand, largely appear to experience the justice system quite differently. Dr. Julie Macfarlane found that many report feeling like an “outsider” – shut out by unfamiliar courtroom customs and procedures and a language they don’t understand. Often they do not believe they were taken seriously by the judge, who preferred to talk with a lawyer and viewed them as a nuisance and irritation.
This confluence of dissatisfaction has the potential to create a perfect storm for the administration of justice in Canada. On the flip side, with the number of SRLs growing at an exponential rate, it also presents new possibilities for lawyers willing to consider practising in a different way.
Since 2007, I have provided coaching and support to SRLs. I refer to this service as Assisted Self-Representation (ASR) because it goes beyond simply unbundling or acting on a Limited Scope Retainer: At its heart is a translation function for those who find themselves facing the justice system without a lawyer, and must of necessity become conversant with its language and procedures. I have found that with strategic professional assistance, SRLs can achieve good outcomes and benefit in other ways as well from representing themselves. Some recent feedback perhaps captures this best:
I went from scared of the legal system, my Ex’s lawyer and my Ex, to empowered. I have won many legal victories in the past year and many personal victories as well.
Although not everyone may fare quite as well, this client’s story echoes that of many who have benefitted not just professionally, but also personally from the coaching and support they received from a lawyer.
Some people will always be able to afford the services of counsel, while others will continue to qualify for legal aid. But for the growing “sandwich class,” ASR provides a viable alternative. It frees up access to a system which SRLs might otherwise find overwhelming, and for the supporting lawyer, is gratifying to watch from the wings.
Much as we may not want to admit it, SRLs are here to stay. Acknowledging the legitimacy of their presence creates new opportunities for lawyers and is the first step in helping litigants without lawyers achieve a better quality of justice.