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Whose law is it anyway? | Jeff Rose-Martland

Monday, December 21, 2020 @ 1:04 PM | By Jeff Rose-Martland

Jeff Rose-Martland %>
Jeff Rose-Martland
In her article “Self-Represented or unrepresented?” (The Lawyer’s Daily), lawyer Pamela Cross takes on the issue of people-without-lawyers in the justice system.

Before proceeding further, I acknowledge that I’m going to be speaking in broad terms about the legal system. I am fully aware of — and thankful for — the broad range of judges, lawyers, paralegals, academics, clerks and registrars, and other professionals who are working hard to assist us self-reps. I am clearly not intending to lump you in with the rest but speaking to the big picture requires generalizations. Besides, Cross started it.

Cross is right in saying no one asked us how we wish to be referenced. The label “self-represented litigant” is industry jargon. By the time we absorb what a “litigant” is, we’ve already been one for a while and have more pressing concerns.

Self-represented litigant is just another legal term we’ve had to absorb, along with “plaintiff,” “respondent,” “interlocutory application,” and the rest. Self-represented litigant is the least offensive on a list of mostly dismissive or contemptuous terms, including “unlearned friend.”

Cross goes to some lengths to divide us up. One group, Cross maintains, are men who go lawyer-less to further abuse their partners. Given the steep learning curve that any self-represented litigant faces, I find it doubtful that any lay individual could master the legal system enough to bend the law into a scourge and wield it effectively.

I won’t debate that point further, except to say that basing any conclusions upon the impressions of one group of people as to the motivations of another group of people is inherently unsound — even if they are judges.

Cross identifies two kinds of SRLs: those who cannot get a lawyer, and those who choose not to get a lawyer. She correctly identifies that operating pro se presents an access to justice issue. However, Cross clearly feels that one group is facing an issue of justice, while the other presents an access issue, in that those who choose to go it alone should perhaps be denied access, period. After all, those people are abusing and draining the legal system.

But whatever is to be done, Cross is clear that it is the lawyers and judges who must decide, preferably before self-reps even begin: “To ensure that our possible solutions are the right ones, we must name the problem correctly. For me, that starts with distinguishing in our language between litigants who self-represent and those who are unrepresented.”

And there’s that word. The word that sums up how self-represented litigants are treated by the legal system: problem.

People without lawyers are a problem to be addressed. Something to overcome. An obstacle, a hindrance, an inconvenience. A challenge to the legal system. A predicament for the courts. A humongous green dilemma, with a rack big enough for children to climb. Something to be hunted by the servants of Justitia and brought down before the Blind Lady takes notice. After all, She shouldn’t be disturbed by such a beast as an unlearned, unaccompanied, and above all, unworthy individual.

Cross’ clarion call to her colleagues reveals the legal profession’s true motive: control. Self-represented litigants must be identified, quantified, categorized and dispensed with; the only permissible access to justice is through the bar. People can’t be permitted to just wander in off the streets and demand justice; that would be chaos and anarchy. Only the official gatekeepers in the legal system can decide who gets access to justice and how.

Cross is echoing the message self-reps receive over and over: only lawyers belong before the court. Anyone else is a problem. If we cannot obtain counsel, something must be done to get us counsel. If we choose not to have a lawyer, then we are abusing the system and draining resources.

People-without-lawyers are told, over and over, that we should get one. Even when we’ve explained why we don’t have a lawyer, we are told to get one. Even when obtaining counsel is impossible, we are still told to get one. Judges, opposing lawyers, duty counsel, registrars, clerks… all repeat that message: you shouldn’t be here unaccompanied. You don’t belong.

It doesn’t matter that Cross empathizes with people who cannot get representation. Nor that she really wants to improve circumstances for self-reps. Nor that she sees the massive injustice that arises for most of us. Does she feel for us? Yes. But a condescending hand up is just as bad as the contemptuous kick down. Her feelings don’t change the fact that Cross is calling upon her fellow Star-Bellied Sneetches to decide who is worthy of strolling the beaches (from The Sneetches & Other Stories by Dr. Seuss (Theodor Seuss Geisel), 1961).

That’s the real problem here. It’s not un-lawyers in the halls. It is a legal industry that has lost the purpose of the law. A legal industry so far removed from its roots, so insular and elitist, that it labels any outsider a problem.

From there, it is a very quick hop to using the arcane and often impenetrable rules of court to dispose of we-without-counsel, to unfairly branding self-reps as vexatious, to granting summary judgments against the unlawyered to dispense matters unheard. All things that have occurred, spawning many appeals. Who’s hampering justice there?

Some of you may remember this fact from first-year law. I remember it from high school. It appears in every summary description of common law. It has been at the foundation of the legal system for hundreds of years: the right of every individual to appear at court, present their case and obtain justice.

Every individual.

Not just those who can afford lawyers.

Not only lawyers.

Every. Single. Person.

The people seeking justice are not the problem. It is those blocking them from obtaining it that are the problem. People are not outsiders to the law, we are its foundation. Remove us and the structure collapses. It is not for the legal profession to determine what role we have in the justice system. Our right to participate is both inherent and supported by centuries of law.

The law was not created so that lawyers can have prestigious, well-paying jobs. It isn’t a fraternal organization where one has to be initiated to even enter the building. It isn’t an exclusive sport for rich folk. The legal profession exists to facilitate justice by serving people. It is a service industry.

But if lawyers refuse work by making themselves unaffordable and unavailable, then it becomes self-serve. If lawyers continue pricing themselves out of the market, they may very well wind up alongside gas jockeys, bag boys, elevator operators and other obsolete service positions.

Presented with a choice between Do-It-Yourself Lawyering or Do-Without-Justice, I chose to champion myself. That is the challenge every self-rep has taken up. We don’t really have a choice but to dive in; our matters are personal. We all accept that we may lose, but giving up isn’t an option.

I don’t really care what Cross wants to call me. I know what I am. I am not an abuser, manipulating the courts to my own evil ends. I am not a vexatious time waster draining away resources. I am not a barrier to job satisfaction, an obstacle to climb or a gulf to span. I am not sand in the gears of the wheels of justice. I am not incidental to the legal process, a side effect, an irrelevancy, or a punchline.

I am a patron of justice.

Jeff Rose-Martland is a self-represented litigant, citizen advocate and member of the Advisory Board of the National Self-Represented Litigants Project. Any views expressed are his alone.

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