Nine tips for anyone involved with self-represented litigants (SRLs), including a look at the responsibilities of lawyers and the court.
I can only speculate on the reasons for the surge over the last 20 years in people representing themselves in all forms of litigation. One may be the high cost of litigation. Another may be the availability of and ease of access to legal information on the internet. I sometimes wonder if television shows oversimplifying the law encourage people to go it alone, without considering the complexity of the legal system, the rules of evidence, and the convoluted process to court. Or maybe people are more aware of their legal rights.
In nearly 16 years of dealing with self-represented litigants (SRLs), I have concluded most are sincere, sane and simply trying to protect what they believe to be their rights. A minority of SRLs are personality disordered, vexatious and malevolent. They have no genuine interest in resolving their dispute unless and until they have won. They are unable to see anything but their own interests and positions and are oblivious to anyone else’s feelings or rights. They may well have ample funds with which to hire a lawyer, but they think they’re smarter than everyone else, or they haven’t been able to find a lawyer who agrees with their position and who is willing to be their mouthpiece.
Whatever the case, SRLs will continue to be part of our legal system. Below are my nine tips for anyone working with SRLs.
1. Resources for lawyers
A starting point, because I do not want to reinvent the wheel, is the Law Society of Alberta’s module on Self-Represented Parties. It is a good mix of ethical rules and standards and common sense.
Shortly after I was appointed to the bench, I was introduced to books by Bill Eddy, a California lawyer, therapist and family mediator. Bill’s first book in 2008, Managing High Conflict People in Court, was a great read. His basic thesis is that a significant portion of the difficult litigants in court (particularly in family law) have borderline personality disorders or exhibit these traits. In my view, this book is a “must read” for lawyers dealing with high conflict opponents, whether they be SRLs or difficult lawyers.
After reading this book, I spent time analyzing the various personalities appearing in front of me. But that was little help in finding ways of dealing with these individuals. Bill’s 2014 book, BIFF (brief, informative, firm and fair), provides a pathway for dealing with anyone who is a high conflict person, regardless of their traits or disorders. The book emphasizes there is little point arguing with difficult people. They hear what they want to hear and may have no interest in actually resolving a dispute. Their interest is in prolonging and provoking the dispute, for whatever reason.
I encourage everyone to visit Bill’s High Conflict Institute website and subscribe to his newsletters. In case you are worried, I do not get commissions and have no connection with the Institute other than being a huge fan of their work.
2. Resources for SRLs
Many of the challenges SRLs face stem from their lack of procedural knowledge. There are good self-help websites and resources available online. While not applicable in Alberta, the B.C. Government has many resources about court processes, document requirements and even running a trial. Another great resource is the National Self-Represented Litigants Project website and their catalogue of resources across Canada.
3. Communication skills
Communication skills can help a person get information without being aggressive or threatening. Listening skills are also very important and are usually triggered by asking open-ended questions (who, what, where, when and why) rather than closed questions (where the answer is yes or no). Another useful skill is ‘reframing’. For example, saying “you want to have a say in what the kids do on weekends” instead of “you feel he’s ignoring your wishes”.
The goal is to diffuse anger as there is no useful purpose in trying to reason with an angry person. Their amygdala telling them to fight or flee diminishes their ability to reason. In the same vein, the worst thing you can do is lose your own cool. Some people try to set traps to make their opponent lose focus by making them angry. Don’t fall for it! Take a deep breath, take a break, but stay focused on what is important.
And read and reread BIFF and use its strategies.
4. Put it in writing
Despite my Pollyanna-like faith in humanity and wanting to be able to trust everyone, I have learned the hard way that the most credible evidence is in documents. Eye-witness testimony is increasingly being discredited. You are better off sending a confirming email or text to your opponent after each communication.
If you believe your opponent is untrustworthy, it is perfectly acceptable to refuse to speak to them by phone or in-person, and to insist all communications be in writing, such as by snail mail, email or text. In family law, programs like “Our Family Wizard” are very useful and effective. The program saves communications and even has a feature that discourages unhelpful communications (rude, abusive, profane, etc.).
I am not keen on one person unilaterally recording a conversation, as I find it unreliable. The recording party knows to be well behaved and may use passive aggressive techniques to provoke the other party. When both parties know there is a recording, the playing field is level. Meetings with difficult people could be recorded if everyone agrees upfront.
5. SRL’s duties
The Canadian Judicial Council (governing body for the Canadian superior and appellate courts) published guidelines on what the Court could expect from SRLs. The bar is relatively low, as an SRL’s main duty is to “familiarize themselves with the relevant legal practices and procedures regarding their case.” The guidelines go on to say the SRL is responsible for preparing their own case and being respectful of the legal process and the officials involved in it. Vexatious litigants are not allowed to abuse the process.
Pintea v Johns, 2017 SCC 23 is the Supreme Court of Canada’s most recent pronouncement on SRLs and is a must read for everyone involved with SRLs.
6. Court’s responsibilities
Judicial obligations include providing SRLs with information to help them understand and assert their rights or raise arguments before the court.
Paragraph 2.D.1 of our new Ethical Principles for Judges speaks of judges having to “be aware of the different ways in which disputes can be resolved fairly and efficiently.” Paragraph 2.D.2 emphasizes that “passive neutrality and treating everyone in the same manner may not always be appropriate”. Judges can provide help “while being alert to not compromise judicial impartiality and the fairness of the proceedings.” Judges must ensure procedural and evidentiary rules are not used to “unjustly hinder the legal interests of self-represented litigants”.
7. Case management and Rule 4.10
There was a time when case management dealt with personality conflicts, obstructionist conduct and difficult litigants. For many reasons, case management has been significantly curtailed and internal policies discourage judges from conducting or recommending it, except in very clear circumstances if ordered by an ACJ.
An underused process is a case conference under Rule 4.10 of the Alberta Rules of Court. An ACJ must also order its use, but they are more likely to do so over case management. A case conference can be extremely helpful in putting together a litigation plan and organizing out-of-control litigation.
8. Opposing lawyer’s responsibilities
I understand that a sizable portion of complaints about lawyers in litigation matters come from SRLs. (The same can be said about complaints about judges to the Canadian Judicial Council.) Therefore, it is important to understand what our professional bodies say about lawyers’ responsibilities towards SRLs.
The Law Society of Alberta’s Code of Conduct discusses the conduct and duties of lawyers, including:
- being courteous and acting in good faith with all persons with whom a lawyer has dealings with, not lying or misleading another lawyer, avoiding sharp practice, and not recording conversations without consent
- when dealing with an SRL on behalf of their client, advising the unrepresented person to get legal representation, making sure the unrepresented person knows the lawyer is not protecting their interests, and making it clear to the unrepresented person they are acting exclusively in the interests of the client
See Rules 7.2-1 to 7.2-12. Without speaking for the Law Society, the gist of these rules is that lawyers owe the same professional duties to an SRL as they do to other lawyers.
9. Costs in favour of SRLs
Rule 10.29 of the Alberta Rules of Court entitles a successful party to a costs award against the unsuccessful party for out-of-pocket legal costs (fees and disbursements charged by their lawyer). The Rules or case law do not say an SRL should not have to pay costs if they are unsuccessful.
It is a different story when a successful SRL seeks costs from the unsuccessful party, whether represented or not. Rule 10.31(5) says the Court may, where appropriate, order payment to an SRL “of an amount or part of an amount equivalent to the fees specified in Schedule C”.
Alberta courts have been slow to order costs in favour of a successful SRL. A majority of cases deny costs to an SRL, though sometimes the court has awarded the SRL their disbursements and an allowance for lost earnings if they had to take unpaid time away from work. The 2013 Alberta Court of Appeal case of Hogarth v Rocky Mountain Slate Inc recognizes an SRL may be awarded costs, but the purpose is not to indemnify. The court referenced the 2001 Alberta Court of Appeal decision in Dechant v Law Society of Alberta, where the Court worried that awarding costs to SRLs may encourage SRLs to litigate and not settle. The Court recently approved Dechant and Hogarth in Terrigno v Butzner, 2021 ABCA 125.
Judges have very broad discretion on costs. I am usually friendly to reimbursement for lost wages if the SRL is the successful respondent or if the other side does not show up or is behaving badly. I do keep in mind the Alberta Court of Appeal’s unfriendly warning about not wanting to turn being self-represented into a paid occupation. I am also generally sympathetic to awarding reasonable disbursements.
My take-away when it comes to costs? Litigating with SRLs is not risk-free when it comes to the possibility of paying costs to an SRL if you and your client are not successful.
Conclusion
The prevalence of SRLs has increased exponentially since I was appointed to the bench in 2006. I predict that growth will continue. I also don’t think Canada is alone in experiencing this phenomenon. It may appear to lawyers and their clients that the system is bending over backwards to provide forums for and assist SRLs. That may well be true. But I doubt we will ever see a system reinstated that mainly caters to lawyers.
One thing is for sure: legal system participants must develop skills to effectively deal with SRLs and make sure the playing field in court is level.
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Disclaimer
The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.
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About Robert Graesser
