Friday, February 17, 2012

Reflections of a self-represented litigant as an old man

At my advanced age of 54 I find myself being sued for $1 million for a blog post on a blog (not this blog, another blog) critical of the University of Ottawa. All the blog posts (on the other blog) in the matter are HERE-link. The lawsuit against me is entirely funded by the University of Ottawa -- a public university in Canada's capital -- and the funding was directly approved by university president Allan Rock, who is amply criticized on the (other) blog in question (e.g., LINK).

I would characterize the legal action against me as aggressive, with a heavy use of procedural motions before the court and a less-than-cooperative lead opposing counsel, arguably one of Canada's leading defamation lawyers. It's been called a SLAPP.

I am self-represented and I have never done this before. To say that it is a learning experience is a vast understatement. At "mandatory mediation" I was alone facing five opposing lawyers, including the Plaintiff-on-record who is a law professor at the University of Ottawa. I was not allowed to bring an adviser or an accompanying person.

To date nine motions have been filed and I have appeared before the court six times. I have been cross-examined twice out-of-court on my affidavit evidence for motions. I'm starting to truly understand what Foucault was talking about in his analyses of state institutions. I don't think I could have learned this any other way.

So let me summarize some first observations -- preliminary conclusions, if you like.

(1) The court is balanced in terms of applying the law when the opposing litigants are both of high societal status and of equal societal status; like two corporations, or two billionaires, etc. Otherwise, the asymmetry in status is mapped into an asymmetry of treatment.

(2) The entire court hearing (on a motion or at trial) is a contest of impressions. The judge does not read and only asks to be impressed by the slogans and spin of the parties that resonate with his/her self-image. The competing shots to impress are received or deflected in a self-organized phase transition from initial position to coalesced final opinion. This is followed by a technical step of providing "reasons" for the final opinion.

(3) There is some measure of care with parties who have the means to appeal decisions. Otherwise, it's all purely an exercise of the establishment preserving the established order. It's a class war in most cases, and this is overt in family court with state intervention agencies or with corporate landlord v. tenant disputes.

(4) The lofty principles expounded in Supreme Court decisions are barely perceivable in the every day judicial decisions of establishment maintenance; and are often contradicted without a second thought. The court archives are stuffed with hand-written "endorsements" on the backsheets of motions that are at odds with "established" norms of justice and with any semblance of logic -- pure oozings of coalesced opinion.

(5) The rules of procedure are rationalized in terms of honorable motives but actually provide structural support for establishment maintenance. For example, mandatory mediation is said to provide a desirable mechanism for resolution by mutual consent. Yet it is overtly used as an instrument of intimidation by dominant parties with the full consent of the court.

(6) The rules are only a trap for self-represented litigants because only the lawyers and judges know which rules must be followed and which can be ignored and which rules are superseded by unwritten practice. And the first rule is that the judge can make up the rules "to provide a fair administration of justice".

There is no solution. Only navigation with a changing destination. They are as bad as we let them be.

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