Tips for dealing with self-represented litigants

  • November 16, 2016
  • Carolynne Burkholder- James

The number of people representing themselves in family and civil court has dramatically increased over the last few years throughout Canada. For example, an Alberta study in 2012 found that more than half of family law files involved a self-represented litigant.

Self-represented litigants pose a challenge for lawyers, their clients and the judicial system in general. Here are some tips on how to deal with them.

Not all self-represented litigants are the same

Lawrence Pinsky lawyer at Taylor McCaffrey LLP in Winnipeg, says there are at least two types of self-represented litigants.

“First, there are those who can’t afford a lawyer. They are self-reps, not by choice but by no choice,” he says.

“Second, there are the self-reps who are self-reps by choice because they feel that one does not need any sort of education or objectivity to be a lawyer or they really want to have their voices heard or they have personality disorders,” says Pinsky. 

“I don’t think it’s fair to lump both of those groups together,” he adds.

Wayne Barkauskas, who practices with Wise Scheible Barkauskas in Calgary, agrees.

“There are some people out there who just cannot afford legal representation or access legal aid. That represents one big group – they simply don’t have the choice,” he says.

“But then there’s another big group who do have the choice. They have the capacity to hire legal counsel but they choose not to. They don’t think they get enough added value out of hiring a lawyer.”

Melanie Del Rizzo, lawyer with Smyth Woodland Del Rizzo in St. John’s, refers to the first category as the “unrepresented litigants” and the second as the “self-represented litigants” and says it’s a “completely different experience” in dealing with the two groups.

Get everything in writing

 Del Rizzo says her number one rule in dealing with self-represented litigants is to ensure everything is in writing.

“I never ever deal with a self-represented litigant except in writing,” she says. “Now that email is so well-used, there is really no reason why you would have to deal with anyone except for in writing.”

 Pinsky agrees: “No matter whether it’s elective or non-elective self-reps, all communications need to be in writing, electronic or otherwise. Never take phone calls because you sometimes get people who will say that, ‘Counsel told me this or that or counsel bullied me or I never would have agreed but I was afraid of horrible counsel.’”

Negotiate in front of a neutral party

Pinsky and Barkauskas both say that negotiating with self-represented litigants is most effective when done with a neutral party.

In some jurisdictions, early judicial intervention is part of the court process. For example, Manitoba has a case-conferencing system where both parties are required to go before a judge.

“A self-rep may feel that one can’t have any faith or trust in the objectivity of opposing counsel, but if they hear the same thing from a judge we can sometimes get to yes within a reasonable time or at least on a time frame that’s not insane,” Pinsky says. “That’s why early judicial intervention works.”

Barkauskas says that meeting with a neutral party is a challenge in Alberta, where the court resources are limited and the court process does not include mandatory case conferences.

“If you’re dealing with a self-rep they are always suspicious of your motives. It doesn’t matter how honest and even-handed you are with your approach to resolving a matter, the other side is always assuming that you’re trying to play games with them because they know that they’re at a disadvantage,” he says. “So trying to open an honest negotiation can be extremely frustrating because the other side assumes that you’re trying to trick them.”

This is why early judicial intervention can help, Barkauskas says.

“The critical thing in dealing with self-represented litigants is that they have an opportunity to negotiate with a neutral party in the room because if there is a neutral in the room there is a much greater likelihood that they’re not going to feel like they’re being tricked. Also they are more likely to listen to a neutral than they are to opposing counsel.”

Realize that your client’s costs may increase

 “You have to be careful to control the flow because sometimes with self-reps they want to tactically flood you with letters and motions and they want to increase costs for your client – not because it helps them but because it hurts your client,” says Pinsky.

 He recommends that lawyers establish parameters.

“Let’s say there is a court order stating that all communications should flow through John Smith and then we start getting letters from the self-rep saying that, ‘I don’t like John Smith anymore. Now I want Peter David.’ So you have to establish parameters to say that you’re not going to engage in that kind of discussion any longer and when there is a court order they have to abide by it,” he says.

Deborah L. Giles, with Scharfstein Gibbings Walen Fisher LLP in Saskatoon, agrees that dealing with self-represented litigants can increase costs for clients.

“Dealing with a self-represented party can also increase your client’s cost where a negotiated settlement may have been likely but because a self-represented party may negotiate based on emotion rather than the state of the law that is no longer possible,” she says. 

Del Rizzo recommends that lawyers deal with the additional expense by asking the court for costs.

“Your client is taking on extra costs dealing with the unrepresented litigant,” she says.

“You’ll be the one drafting all the orders. The judge is not going to look down and say to the unrepresented litigant, ‘You draft this order.’ Make sure that you’re not shy to ask for costs at every step of the proceedings.”

Stay safe

Del Rizzo says that without the “buffer” of a legal representative, self-represented litigants “can be a lot more aggressive and angrier.”

“You need to take very special care for your own personal safety,” she recommends. “This is an emotional business. When there is no buffer of counsel I think risks to personal safety are increased.”

Keep courteous

“Stay courteous all the time because it will come back and bite you if you don’t,” recommends Pinsky. “It can be difficult – especially with elective self-reps. But counsel is there to be objective without personal emotion and skin in the game. So you have to remember that.”

Giles agrees, saying, “Above all else be professional and respectful in dealings with all opposing parties whether self-represented or not.”

Carolynne Burkholder-James is an associate with Heather Sadler Jenkins LLP in Prince George, B.C.