As a lawyer, I’ve been to court hundreds of times. And I’ve coached hundreds of self-represented litigants on how to go to court on their own. Here are some steps to consider. Remember, these are general guidelines and you should always check the rules of court and seek legal advice in your own jurisdiction for your particular kind of case.
- Do You Have a Case? Don’t Go to Court if You Can’t Win
You might feel you are morally right in a dispute but that doesn’t mean you have the ingredients necessary to win in court. Judges are bound to follow the law. So, begin by researching what the law says about your particular situation. Legal research can be tricky so make sure you are looking at material for your jurisdiction (don’t look up what you need for a restraining order on a California legal website if you live in Nova Scotia!) and your kind of dispute. Then look at what you need to meet the legal requirements to be successful. How are you going to prove the things the law says you need to prove to win your case?
A good mediator will help you roll up your sleeves and work at the table to put together a solution that everyone can live with.
One big mistake self-represented people make is filing a case where there is no legal issue. What this means is that a judge can only make an order if there is a legal reason to do so. Thus, if your regular coffee shop stopped selling your favourite cupcake, you cannot bring a legal claim against them for damages because you can’t get those fabulous cupcakes anymore. Similarly, if your neighbour announces that Martians are controlling Ottawa, you cannot sue him to make him change his mind. Make sure there is a legal rule that can be applied to your facts and that there is a remedy (a solution) that a judge has the authority to make happen if you win your case.
The way I usually determine whether to proceed with a case is to first ask if the chance of winning is greater than 50%. If it’s more likely that I’m going to lose, I will ask my client to give serious thought to considering a reasonable settlement offer or even walking away (if possible) from the dispute. If my research and analysis indicates that the chances are that I will win, I still ask my client, “Is it likely that you will be better off having gone to trial than not?” After all the stress, time and money spent on a trial, sometimes it is not worth winning.
- Organization is Key – Don’t miss a deadline!
Going to court can feel totally overwhelming with a million jigsaw pieces to put together. But litigation has timelines with goals. So, take a breath and plot out what you need to do at each stage. Start with the next one, then the next and so on. Don’t get overwhelmed! Here are some tips to stay organized:
- Put all deadlines and dates in a calendar with reminders ahead of the deadline.
- Use checklists and spreadsheets – if I need to prove something to succeed at trial, I write that on one side of a page and on the other I write out how I’m going to prove it. For example, if I want to prove that I paid a deposit to a contractor, I will write out “proof of payment” on one side of the page and on the other I will list the evidence such as the receipt, my oral testimony and my bank statement.
- Organize your litigation materials either in file folders or a binder. Litigation involves lots of paper. Don’t drown in it. Keep your evidence (for example, receipts to show proof of payment) separate from papers you file in court (pleadings) and any letters you send or receive.
- Create a Trial Book – When you go into court for your hearing or trial, you will likely need to have your notes, the law and your evidence at your fingertips. You should also have a copy of all the filed court papers, checklists so you don’t forget anything and an outline of your opening and closing arguments. Organizing and distilling the material from your case into a trial book is what lawyers usually do. A trial book is usually a three-ring binder divided into different sections that follow the development of a case. (You’ll need to look up how to actually make one in, for example, a book on trial techniques.)What would it take for you to move on and leave the dispute behind you? This is different from what you might ask for at trial. It might be “peace of mind” or an apology and a portion of the money you are claiming in your case.
Now once you’re organized, don’t make one of the biggest mistakes I see self-represented people make in court: not listening to the judge. So many times I’ve heard a judge ask a litigant or a lawyer a question, and instead of really thinking about the question and what the judge is asking, that person will give a cursory answer and swing right back into their scripted argument. Being organized doesn’t mean slavishly following your checklist from A to Z, it means hitting each point, but in a way that organically flows from the way the hearing is proceeding.
Take cues from the judge but make sure you still make all your points.
- Use a Lawyer in These Four Situations: Don’t Avoid Lawyers Just Because You’re Self-Represented
Most people are self-represented for financial reasons. They can’t afford a thousand plus dollar retainer. However, you can strategically seek out a lawyer’s help without retaining them for a whole case; for example, for a quick consultation or to draft papers to file in court. These kinds of services will typically cost hundreds, not thousands. And if you can’t afford even a 30-minute consultation, there may still be ways to get a free or low cost legal opinion either through legal aid, courthouse duty counsel or a volunteer lawyer referral agency. For example, legal consults can be as little as $25 through a referral service such as the B.C. branch of the Canadian Bar Association.
These four scenarios are ones where it is especially important to get the insight a lawyer can offer (remember, while you have one case in court, lawyers have dozens, and their on-the-ground experience can provide invaluable tips):
- Before you file papers in court;
- Whenever you are served with court papers;
- Before you sign any agreement or court paper; and
- When you are panicking or guessing in your case: a lawyer can offer perspective.
Don’t make the mistake of locking yourself into court proceedings, a court order or an agreement without learning first what a lawyer can tell you about the implications of your actions, as well as possible alternatives.
- Settlement isn’t always fair but it might be your best option: Don’t overvalue being “right.”
And if you can’t afford even a 30-minute consultation, there may still be ways to get a free or low cost legal opinion either through legal aid, courthouse duty counsel or a volunteer lawyer referral agency. Most cases these days settle before trial. However, settlement will require work. One of the biggest issues for anyone in a court battle is that they want what is “fair” or they want to be “right” and the court to say that the other side is “wrong.” And typically, there are a lot of emotions involved in what is “fair” and “right.” It may sound harsh, but you probably need to set aside your idea of what is fair and look instead at:
- What do you want? This isn’t just out of the dispute but the bigger picture. What would it take for you to move on and leave the dispute behind you? This is different from what you might ask for at trial. It might be “peace of mind” or an apology and a portion of the money you are claiming in your case.
- What can the law give you? The law probably can’t tell you who was morally “right” and who was “wrong.” Focus on what you actually can get (or give up) if you and the other side sign a settlement agreement together.
I tell my clients to look at their disputes as a business transaction. You might have years of bitterness accumulated with the other side because things have been building between the two of you. Well, you are probably never going to succeed at convincing the other side that they are wrong and you are right. Instead, focus on what you need or can live with to move on. Usually, it’s a dollar figure. Focus on that in your settlement negotiations.
- Use mediation (and other forms of Alternative Dispute Resolution) but don’t expect the mediator to tell you or the other side what to do.
If the other side is willing, mediation is a great alternative to court. It usually costs less than hiring a lawyer (often you split the fees with the other side) and gives you direct control over the outcome of your case, avoiding the risk of a trial. While litigating in court is built around a model that is adversarial and uses procedures and rules developed by lawyers for lawyers, mediation can be used by just about anyone. A mediator is a trained neutral (they aren’t on either side) who facilitates communication between the parties in order to help them reach agreement. “But I already tried talking to the other side and they won’t listen,” you say, “So what’s the point of mediation?” Mediators have techniques to bring people away from being locked in a position and to open up two opposing sides to common ground that they may not even be aware of.
Similarly, if your neighbour announces that Martians are controlling Ottawa, you cannot sue him to make him change his mind. Mediators, however, are not acting as lawyers (while your mediator may also be a lawyer, they aren’t “your lawyer”) and they are not acting as judges. In mediation, you cannot get legal advice from the mediator and the mediator cannot make a decision for you like a judge can. Do not go into mediation thinking you’ll just do what the mediator says and that the mediator will tell the other side what to do. A good mediator will help you roll up your sleeves and work at the table to put together a solution that everyone can live with.
In sum, representing yourself can be hard work. But knowing how to put together a game plan, knowing when to use a lawyer, and what resources and tools to depend on are key to assembling a road map through your dispute to get to resolution.