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Lessons in Access to Justice from a Confiscated Fork

Reflections on Self-Represented Litigants (SRL) Awareness Day at Osgoode

 

On October 4, 2017, the Osgoode Mediation Clinic (OMC) welcomed eight self-represented litigants (SRLs) to Osgoode for SRL Awareness Day. SRL Awareness Day occurred at several Ontario law schools under the leadership of the National Self-Represented Litigants Project (NSRLP). The NSRLP is funded by the Law Foundation of Ontario and the University of Windsor, Faculty of Law. The NSRLP generates ongoing dialogue and research about the increase in SRLs as well as resources to help SRLs navigate the legal system.

 

The NSRLP arose out of the National Self-Represented Litigants research study conducted by Dr. Julie Macfarlane from 2011-2013. Dr. Macfarlane’s final report recommended several changes in the legal system to meet the needs of SRLs (https://representingyourselfcanada.files.wordpress.com/2014/05/nsrlp-srl-research-study-final-report.pdf). One proposal was shifting from adversarial models of dispute resolution to the problem-solving orientation available through mediation. The free mediation services offered by OMC students coached by professional mediators have great potential to support SRLs. For this reason, OMC students sponsored SRL Awareness Day and spoke with SRLs about their needs.

 

The SRLs were welcomed to Osgoode by Dean Lorne Sossin and Professor Martha Simmons, Director of the OMC and Academic Co-Director of the Winkler Institute of Dispute Resolution. The SRLs attended morning classes at Osgoode to facilitate students connecting with SRLs and to give the SRLs access to the legal world from which they have been marginalized. The day concluded with a panel discussion of SRLs describing their experiences in the legal system and two lawyers discussing their unbundled service models for SRLs.  The SRLs pay for discrete services accessed from the lawyer, rather than hiring the lawyer to handle the entire legal matter. Services accessed by SRLs range from coaching on the best approach to take in their situation to preparation of a single court document.

 

I heard many stories during SRL Awareness Day about the emotional and financial damage inflicted by the legal system and legal profession on SRLs. Many SRLs reported starting their matter with legal representation and becoming self-represented after they ran out of money to pay the lawyer.  Other SRLs described their frustration with legal counsel for the other party continually delaying the litigation process and or refusing to try mediation. Some SRLs reported that their matter was dismissed when they used the wrong form to initiate the matter, forcing them to invest the time and energy to start again by searching out and completing the correct form.

 

Although I thought I was sensitive to the concerns of SRLs, I realized I did not really appreciate the trauma the legal system had inflicted on them until I visited a courthouse and lost my dessert fork. I visited two courthouses recently:  one courthouse to receive an orientation to the Small Claims Court where I would be providing mediation services through the OMC and another courthouse to receive an orientation to a volunteer placement unrelated to my current coursework. I walked into the courthouse for my mediation orientation and went to the floor with the Small Claims Court freely. Conversely, the courthouse I attended for my volunteer orientation had scanners and uniformed officers immediately inside the main door. I emptied my pockets and placed my bags in a scanner as directed before enduring a pat-down to confirm I was not hiding something. I then reached for my possessions with the hope of carrying on with my day without further disruption, but was quickly disappointed.

 

When I picked up my lunch bag, I was told that I had to surrender the metal dessert fork inside the bag. I explained the fork was in the bag so that I could eat my lunch. I was told that what was a fork to me was a weapon to someone else and I had to surrender it. I asked if I could retrieve it when I left the courthouse and was told I had to place it in the container of confiscated items and would never see it again. I also had a metal spoon in my lunch and asked if I could keep it. I was told the spoon could stay but the fork must go.

 

I was tempted to argue with the logic of this edict given that if I really wanted to attack someone with cutlery I could imagine doing as much damage with the opposite end of the spoon as with the tongs on my small dessert fork. However, I decided that I was better off not arguing, since I had probably already received some benefit from being a short white woman in that the officer had actually accepted my explanation that the fork was really about my lunch and not a terror plot masquerading as lunch.  I decided that I did not want to risk being detained as a suspected threat because I didn’t want to give up my fork. I was tempted to leave the courthouse so that I didn’t have to surrender my fork, but then people expecting me would be upset that I did not show up. Accordingly, I surrendered my fork and entered the courthouse to receive my orientation as a volunteer.

 

Later that day when I opened my cutlery drawer at home, I felt a wave of sadness.  The fork I had lost was part of a set I bought when I first moved out of my parents’ home years ago. This cutlery is no longer manufactured, so the cutlery set that has been with me for years will never again be complete. I marveled at how I had never guessed, as I prepared to go to the court that morning, that I would lose my fork. I went to the other court for my mediation orientation with my fork in my lunch bag and nothing happened. No one tackled me to rip open my lunch bag in the hope of obtaining deadly cutlery. Why was this courthouse so different with uniformed officers frisking people at the front door and seizing their utensils, assuming terrible events would ensue from metal forks but not metal spoons?

 

I then thought again of the SRLs who indicated they tried to understand what the legal system expected of them, but every time they thought they had something figured out, they found out about a rule they had violated. I thought about their stories of losing their families, homes, jobs, and health as they devoted time, energy, and money to a litigation process going on for years.  No wonder some of them were so angry and so hurt. If I felt sad over the loss of a fork when I entered the courthouse as a volunteer, how much more deep and profound must the pain be for people who went to a courthouse expecting to have a personal problem resolved and ended up losing much more important things than a fork?

 

I remembered the feeling I experienced of the power those officers had over me, and what they could do to me if I argued with them and tried to keep my fork. I thought of the SRLs and how powerless and frightened they must feel before a judge who holds their whole future in their hands when they are seeking resolution to a family break-up, an employment dispute, or a lawsuit someone has filed against them alleging wrongdoing.

 

I thought about my feeling that I had no choice but to surrender the fork and proceed onward because people were waiting for me inside the courthouse.  Many SRLs talked about wanting mediation but proceeding with litigation because they had no choice. The other party insisted on using the court so they pressed on working with a system they felt was illogical and unfair like a system that confiscated my metal dessert fork forever but let me keep my metal spoon.

 

I really did not understand the impact of the legal system on the SRLs until I felt violated by it in a small way myself. Perhaps all law students not only need to hear the stories of SRLs but need to spend a day in their shoes, entering a courthouse as an ordinary person before they become a member of the legal elite. Once people become lawyers, perhaps they quickly forget the fear, confusion, and vulnerability people feel who are not “insiders.” Maybe we all need an experience as law students that will generate those feelings so that we will know how to talk to the SRLs across the aisle from us in court in the future with humanity.

I plan to keep the feelings with me that I experienced upon the confiscation of my fork as I enter my legal career. These feelings motivate me to build a system in which access to justice is not so difficult and is not reserved for those who know the language and the processes of the court intimately – including which rules must be followed just to be allowed inside the courthouse door to start the journey.