Interesting Question

The State is a condition, a certain relationship between human beings, a mode of behavior; we destroy it by contracting other relationships, by behaving differently toward one another....We are the state, and we shall continue to be the state until we have created the institutions that form a real community and society of men.

- Gustav Landauer, Schwache Stattsmanner, Schwacheres Volk!, June, 1910

Selected Correspondence:

26 September 2006

The curious world of the querulous

You quote Dickens, but if one must resort to fictional antecedents of querulous litigants and their courts, then Franz Kafka's The Trial is surely the book:
"The Great lawyers?" asked K. "Who are they then? How do you contact them?" "You've never heard about them, then?" said the litigant. "There's hardly anyone who's been accused who doesn't spend a lot of time dreaming about the Great lawyers once he's heard about them. It's best if you don't let yourself be misled in that way. I don't know who the Great lawyers are, and there's probably no way of contacting them. I don't know of any case I can talk about with certainty where they've taken any part. They do defend a lot of people, but you can't get hold of them by your own efforts, they only defend those who they want to defend.

One of my Great Lawyers was Peter Faris QC, originally a left wing radical defender of drug barons, but then recently resigned has head of National Crime Authority under ALP appointment. He later aligned his personal and political life after becoming a prosecutor and is now a right wing demagogue of the first order. Last year in The Age he demanded the removal of St. Kilda's street prostitutes. Not for Faris the pacing feet of these poor Melbourne Magdelenes. But here is a man who resigned from the NCA in quiet disgrace after the Victorian police caught him visiting a brothel and using the NCA to cover it up. What are we to infer? Faris supports small business but is opposed to independent contracting?

Your paper under-estimates the consuming nature of litigation. Most intelligent litigants learn the language of the courts in their struggle to understand and control the new environment in which they find themselves. Those with good social as opposed to merely verbal cognition find soon enough that the judiciary and court administration, while accepting this language from its gowned courtiers and other hangers-on do not like to hear their ritual language flowing from the mouths and pens of uninitiated peasants. Cunning actors against the state develop a faux naivity to their pleadings or find a wig to sanctify them.

Anyone afflicted with servants of justice will soon find themselves exposed to all manner of hypocracy, mendacity and incompetence. If one is foolish enough to demand fair redress for every new insult then it's possible to create a never-ending supply of injustice and so, in this manner, turn a small injustice into an injustice of unbound size. One must develop a certain cynical understanding that systems of people are careers and intrigues and necessary deceptions and that kind acts fall from the breasts of stray individuals as random acts of love and can not be systematized.

The litigants I encountered to seemed to have an interesting commonality above the paranoia and rigidity you document. They made many contacts with people in positions of power and status compared to their station in life. This seems to become the central status mechanism of their life and the vision of their litigation ending does not bring them relief but feelings of exclusion perhaps exacerbated by the collapse in their other relationships. They look to increase their self-perceived status by seeking precedent setting judgements in ever higher courts with higher status legal teams and defeating ever more powerful enemies in legal combat. Yet with the change of a single word we can remove the pathology:

Lawyers look to increase their self-perceived status by seeking precedent setting judgements in ever higher courts with higher status legal teams and defeating ever more powerful enemies in legal combat.

In your paper you mentioned the declining number of vexatious litigants and attributed this to the growth of complaint resolution proceedurs which provide the querulous with alternate avenues to litigation. Consider this question. Has the rise in educational opportunities over the past 20 years and the resulting class transfer provided an alternative power mechanism for the hyper verbal? Where have all the union firebrands gone? Together, perhaps with the pre-vexatious, they are being honed by tertiary education into efficient cogs for the neo- corporate state and in their spare time Adapting Waiting for Godot for the university Law Review.

The querleous derived from working class, underclass or lower middle class families and were all shorter and less educated than their intelligence would normally reflect. These guys delighted in beating the silver spoon set at their own game. One changed his surname to "President" to the mute horror of the judiciary who were then forced to utter the status transferring appellation "Mr. President" at least once in any proceeding he was a party to.

Although this last example is rather extreme, I felt amusement and pride at seeing Dr. Blow and other bedfellows of injustice flail under my crossexamination so that despite my very young age lawyers filed in to watch and make statements like "that's the last court report gig that witness will ever get from here!". If it wasn't for the fact that I had a lot to lose and had already felt substantial power over the establishment in another world, I may have found solace in following the path of Mr. President who had nothing to loose since his case was in a culdesac more typical of The Trial.

Certainly at the time I didn't see his name name as pathological, but rather a delightful, spirited, if tactically unwise, prank on those self-righteous throned and frequently incompetent pontificators whom I did not respect, but to who I was forced to sit, stand, bow, scrape and utter a raft of honorifics and ego-salving platitudes because despite their many grandiloquent claims of impartiality and gravitas, experience had shown they were sensitive souls and easily biased against those who were not first rate sycophantic grovelers.

Perhaps it is this behavior combined with distal remnants of Arthurian code that is the source of the the well reported bias of the judiciary against male litigants in person. A judge doesn't need to bring a woman to heel, she is, after all not a threat, but a lovely object of desire or irrelevance, but any man worthy of the label rebells at such enforced kowtowing with his posture and tone and so must be ground down less gowned courtiers see the weakening king and boldly make their move.