Friday, January 4, 2013

David W. Scott on self-represented litigants

Here in the capital city Ottawa of the advanced nation that is Canada, a Co-Chair of the national law firm BLG, and an officer of the Order of Canada, Mr. David W. Scott, was quoted in the following way in the city's Ottawa Citizen newspaper, on the topic of self-represented litigants in Canadian courts [1]:

The jaundiced judicial attitude is a holdover from an earlier era, when many of those who appeared in court without a lawyer were mentally disturbed, says David Scott, a prominent Ottawa lawyer.

“That’s changed completely,” says Scott. Now, “the unrepresented litigant is frequently smarter than the represented litigant and his lawyer combined. The idea that all these people are deranged is over.”

Within the legal profession, what to do with self-represented litigants “is now the hottest topic on the street,” says Scott. “This is a huge management job for the courts, and we’re just beginning to deal with it.”

Well there you have it. Is there a cultural bias against self-represented litigants in the legal profession? Do elephants have big ears?

Which "earlier era" is that Dave? Would this be based on a comparative study published in a law journal? Or would this be anecdotal? Did some Ontario judges make findings in their judgements that the self-represented litigants before them were "mentally disturbed", or, well ... what is your source there Dave? And who made the psychiatric evaluations in question Dave? Are lawyers and judges qualified to do that?

Also, Dave, could you specify: When did the "idea that all these people are deranged" become "over"? What year was that in your career? How did judges administer justice before it was "over"?

I ask because, my own research on self-represented litigants of an "earlier era" suggests that they were quite not mentally disturbed, but rather worked with a "mentally disturbed" or at least "disturbed" court. Two famous examples that come to mind are Fidel Castro [2] and Mary Mother Jones [3].

So... Dave is helping in the "huge management job" that "we're just beginning to deal with". I feel better already. These boys are going to "manage" self-represented litigants. Meanwhile, one lone researcher is interviewing the non-lawyered litigants to figure out what is actually going on [1].

Another research method, I would suggest, is to observe in the actual courtroom. That's where a lot of the "managing" is occurring, for anyone who cares to witness it.


[1] Butler, Don, "Self-represented litigants ‘treated with contempt’ by many judges, study finds", Ottawa Citizen, January 1, 2013.

[2] Castro, Fidel, "History Will Absolve Me", 1953.

[3] Foner, Philip S., "Mother Jones Speaks: Collected writings and speeches", Monad Press, 1983.


David Llewellyn Foster said...

Very interesting and cogent observations Denis. Of course, DW Scott did concede an inference of implicit habitual error by adopting the epithet "jaundiced."

It is surely of profound significance that "psychiatry" and law are such cozy bed-fellows.

As Popper strenuously insisted, psycho-analysis was only ever a pseudo-science. So perhaps psychiatry should be reclassified/conceptualised as a "political science" since mental illness seems to be the characteristic affliction of most despotic ideologues.

As for law, it is an open book ~ isn't it? Or should I say, cheque-book?

Anonymous said...

You are an OPCA