Dr. Julie MacFarlane, who recently completed a study of the experiences of the self-represented in the Canadian courts, has posted a fascinating blog on the reactions from the legal profession to the study. It is uncomfortable, but important, reading.
Efforts to discuss the study’s findings in both formal professional and informal social settings have been regularly met with one or both of the following responses from lawyers (1) “the SRL’s in your study were all crazy, angry people” (a wholly inaccurate characterization of the research sample) and / or (2) ”you’re just lawyer-bashing”. This defensiveness casts lawyers as the victims of SRL’s, and SRL’s as the aggressors. This is a (re)framing by the (relatively) powerful that we should be familiar with from other social issues.
I know that the legal profession and the judiciary includes many amazing people who are committed to enhancing their services. Some members of the legal profession – and in particular, some important leaders – are looking carefully at the research and considering how the profession should respond. Many of these individuals – and their colleagues on the Bench – would agree that lawyers must be part of change. But they face the resistance of those who are so defensiveness about public criticism.
Discounting or rubbishing the research – and all research has its flaws – is neither an adequate nor a responsible response to the crisis of public confidence in the justice system. Efforts to stifle legitimate public concerns about legal services with cries of lawyer-bashing, or disparaging the struggles of ordinary people facing the justice system without counsel, will be completely counter-productive. It serves only to reinforce the critique – that parts of the legal profession do not care about ordinary people and are largely unaccountabie to the public.
It should be noted that the overall perspective that she brings is highly nuanced, and thus provides no justification for these criticisms. As she puts it:
My own view – stated publicly many times now – is that the experiences of SRL’s are reflections of a system problem, rather than the “fault” of any particular justice system actors – judges, lawyers, court staff, or the SRL’s themselves. The real problem is that we have a legal system that assumes that people will be represented by lawyers. Declines in family and civil legal aid have left litigants with the choice of hiring a lawyer at $350 an hour, and many cannot afford to do so. Or they run out of funds before the end of their case (over half my sample) and find themselves alone in the courtroom.
On first blush it makes me feel good that we have really not experienced anything like this in the States — except, of course, for some rather special situations. I would like to think that this is because our bar has made a major commitment to access to justice, and is able to face up to the realities of the system.
But before we blow our own horns, we must acknowledge that while some of the US states have gathered input into court planning, and others have conducted focus groups and talked to the self-represented, we have never done anything as systematic at Dr. MacFarlane’s study. Maybe if we did, it might elicit some of the same reactions.
Of this however I am confident: the more we bring the bar into the research, analysis, planning and innovation process for access, the more successful we will be, not only at avoiding the kind of reaction reported by Dr. MacFarlane, but more critically, in solving the underlying access issue.
I particularly look forward to hearing how the debate moves forward — knowing as I do from recent participation at an excellent session organized by the Canadian Bar Association that there is indeed very strong interest in access in the Bar, and a lot of creativity and commitment.
Lets hope that what Dr. MacFarlane is reporting is coming only from a small minority.