Saturday, August 27, 2011

The other side!

Natalie Fraser
Managing Editor
The Lawyers Weekly
Suite 700
123 Commerce Valley Drive East
Markam, Ontario L3T 7W8

Dear Ms Fraser:

The following article is one-sided, misleading and leaves the mistaken impression in cases involving self-represented litigants it is they who create all the problems for the judicial system. However, in an increasingly litigious society this over simplifies and misrepresents the situation because of the implicit, underlying assumption lawyers always act completely ethically and with integrity while Judges at Pre-Trial Conferences are above making errors which cannot be appealed. But do they?

American legal scholars have coined the term SLAPP (Strategic Lawsuits Against Public Participation) of which more and more are showing up in courts throughtout Canada and the United States. The following illustration accurately portrays the situation. The Lawyers Weekly site invites individuals to submit story ideas which we are prepared to do. Accordingly, we recommend staff reference the Manitoba Court of Queen's Bench online File Registry ( - File Number CI 05-01-41955: Manitoba Metis Federation versus Terry Belhumeur et al.) for a classic textbook example of a SLAPP.

If you are interested in a follow-up article to present the other side of self-represented litigants we are prepared to make ourselves available for discussion. We have firsthand knowledge and experience with the aforementioned case.

Clare L. Pieuk

Media Citizen Journalist
Blog Master

Self representation in court common nuisance
By John Schofield
August 26 2011 issue

Many self-represented litigants are in over their heads with paperwork and require a bit of a hand to get through a case [contour99/].

It wasn’t one of the highlights of Chelsea Caldwell's career. But it ranks as one of the Vancouver lawyer’s more unusual experiences. In a downtown office building, in the middle of the day, a man stood in the middle of the lobby, proclaiming to anyone who cared to listen what a bad lawyer he thought Caldwell was. Ironically, he capped off his performance by paying her several thousand dollars to settle a case she had just won for her client. “I think his announcement was lessened,” she remembers with a laugh, “by the fact he was handing me a big wad of cash.”

It may seem funny now, but the story is a vivid illustration of the frustrations that lawyers can face when they go up against self-represented litigants. Anecdotal evidence suggests that’s happening more often. But if do-it-yourself lawyers aren’t handled carefully, Caldwell warns, it can end badly for almost everyone involved. “A self-represented litigant is vulnerable, frequently angry, sometimes volatile, and usually the less-informed person in the room,” she wrote in a paper she delivered in May to the Continuing Legal Education Society of British Columbia’s small claims conference. “As a result, that litigant is capable of creating chaos, unless he or she can be either made to feel respected or managed very efficiently.”

Sooner or later, almost every lawyer faces a self-represented litigant (SRL). And the odds are increasing — not only in small claims court and family court (the traditional preserves of the SRL), but in Superior and Supreme Court cases. Precise statistics are hard to come by. Still, in a survey of lawyers attending the Law Society of Upper Canada’s Family Law Summit last June, Queen’s University law professor Nicholas Bala found that 80 per cent of the 167 respondents reported they were encountering SRLs more often. Caldwell says she’s seeing SRL more at the Supreme Court level, too.

Money is the main reason. Not everyone qualifies for legal aid. And those who don’t sometimes feel they will cut costs by representing themselves. In the age of the Internet, says Carol Cochrane, a family lawyer with Ottawa-based Low, Murchison LLP who has also written on the topic, some people think that a few Google searches will make them an instant legal expert. In some provinces, she adds, mandatory family-law information sessions also lead litigants to believe that that’s all they need to know. Lawyers, too, share some of the blame for the rise in SRLs. “Unfortunately,” says Cochrane, “there’s still a negative perception of lawyers that they will extend a case for their financial gain.”

But the SRL is more likely to complicate and prolong the court case than any lawyer, says Dan Pinnington, the director of practicePRO, an initiative by Toronto-based Lawyers’ Professional Indemnity Co. to provide risk management and claims prevention information to Ontario lawyers. As cases drag on, tempers can flare, he warns, and lawyers need to handle their own clients carefully. Fully a third of malpractice claims stem from lawyer-client communication issues, he notes. “Anything that potentially causes your client unhappiness,” says Pinnington, “you need to be aware of that and be proactive in dealing with it.”

By following a few survival tips, lawyers can go a long way to ensuring that the proceedings run smoothly. Start by observing the rules perfectly and bending over backwards to be respectful, regardless of the frustration level. “You have to be very firm with self-represented litigants, but at the same time you have to be the bigger person,” says Caldwell. “Your job is to present your case, but it’s also to assist the court, and you’re going to look like a real schmo if the person is struggling to find a document and you’re not helping.”At the same time, lawyers risk offending their own clients if they appear to be too supportive. In communicating with lay litigants out of court, Caldwell recommends avoiding phone calls and putting everything in writing. Cover yourself and maintain a paper trail. If phone calls occur, she suggests following up with an email summarizing the conversation and asking the SRL for his or her interpretation.

Lawyers should reassure their clients that they’re giving their adversary only enough information to advance the client’s case, says Cochrane. To convince them you’re in their corner, she advises lawyers to politely encourage the self-represented litigant to talk to duty counsel or to retain their own lawyer. If the case is going into overtime, let your client know that there may be extra costs, but the investment will be worthwhile and they’ll leave with a solid agreement. “This is an area where you have to be completely upfront and make sure your client is appreciative of the fact it’s going to take longer,” says Pinnington.

Judges are another story, says Caldwell. Their behaviour is beyond your control. Courts are surprisingly patient with lay litigants, she notes, and it’s easy for clients to feel that the judge is helping the self-represented litigant too much. Remind them that the judge is there for both sides. “The problem in litigation is there’s usually a winner and a loser,” she says. “There are probably a lot of lay litigants out there who feel the system is unfair. Judges and masters try very hard to make sure that isn’t the case.

”If things turn ugly, Caldwell urges lawyers to remain professional at all times. She says that more than one self-represented litigant has threatened to drag her before the law society, and she’s been called a variety of names. But if lay litigants respect the process, they are respected in return. In the end, she notes, lawyers are just there to do their jobs. “Lawyers are there to get the right result, but we can never forget it’s important that justice be seen to be done,” she says. “I want that person to walk away having seen the judge treat both sides fairly.”


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