For decades now, as politicians belch about access to justice, nothing substantial is done about the complex rules and extraordinary amount of money lawyers charge for their time. Even a junior lawyer in a large city makes at least $200 an hour. Obviously, for many litigants, just to retain a lawyer to defend an otherwise trivial dispute, may cause insolvency.

More and more litigants are having a go at it themselves. As they have been coming out of court, bloody and bruised, survivors have been writing letters.

Finally, public pressure is being brought to bear on horrendously complex rules of court; beauty and art for lawyers (like myself!) who appreciate the history of the law and the value behind all of the rules when taken as a whole. But when lay litigants face any rule separately against a lawyer, as they inevitably do, it changes the trial battlefield to one of David against Goliath.

Lawyers are agents. Like other agents, they are hired because of their expertise. If you are pitted in a 5-minute race against a veteran travel agent of some 20 years experience, the race being whoever could get the lowest airfare to a specified destination, you would likely get your butt kicked.

Likewise for the professional athlete: he plays hockey; he leaves the contract negotiations to his agent. He negotiates his own contract without an agent at his peril.

Lawyers have access to wisdom such as this translated from ancient legal texts found in Jerusalem:

"A good pleader ought to have good sense, a sound understanding, and a subtle genius ; he should be free from the faults of indecision, timidity, false shame, haste, and nonchalance while he pleads, he should keep his attention from wandering to any other subject, and should also take care to avoid undue heat and asperity."

In any Top 5 list of things an unrepresented or lay litigants ought to know, number one would always be know the rules. However, that is simply not possible except for those rare courts which have simplified rules or procedures, usually only for cases whether the amount is relatively low.

You could spend two weeks trying to learn what an examination for discovery is but without a senior partner to tell you what an examination for discovery really is (and how to take advantage of it; how to avoid its pitfalls), you still would not be adequately prepared for it.

An examination for discovery is only one of hundreds of different unique weapons available in the rules of court. Even if you were able to educate yourself sufficiently as to examination for discovery, a lawyer with a corporate client, also known as a "deep pocket" client, can keep you dizzy hopping from rule to rule with interrogatories, demand for particulars, interlocutory motions and applications, demand for documents, notice to admit, amended claims, third-party proceedings, costs, and the list goes on and on.

law courts wall sign A good example of well-intentioned but naive initiative is the B.C. Supreme Court Self-Help Information Center at supremecourtselfhelp.bc.ca where the court has put together plain language packages on some of the topics; not all.

It is an impossible task.

There are videos and 600 word articles but at the end of the day, no judge is going to make a decision based on a self-help website article or video but instead would pointedly state that the "rules of court apply here; those things are just general information".

So, while a self-represented party would necessarily rely on a Court-based self-help centre for comprehensive guidance, you wouldn’t find a barrister anywhere near there.

BC has an annual practice manual which sets out the court rules and important cases. But a good lawyer will rely on his personal experience first, and the rule book second. To run an effective examination for discovery is an art, not a science, one learned by trial and error and assistance from professional colleagues, over time.

Nonetheless, if you are to be blind, at least get a white cane.

RULE #1: SEEK AND ACQUIRE KNOWLEDGE

Know the rules. Read, read and read. Start with the court rules. Go to credible websites (like this one, of course!).

It is an old secret from law school: the best students are the ones who love to read the law.

If you are going to Court or trial, absorb all the self-help material you can and go to the courthouse library and read the court rules. Make a photocopy of whatever might apply to you. Use a highlighter and highlight the dickens out of it. You may also be able to download the rules from the Internet and print them as a PDF, which recent versions of Acrobat will allow you to highlight and annotate electronically. Don‘t try to memorize. Let it seep in like incense and try to feel and understand the general policy behind each rule.

However, and this is yet another advantage lawyers have, you have to juggle the law and the facts in a court of law, knowing when to fold them, and when to hold them. For a lay litigant, attempting to obtain a mastery of a particular rule just before a court hearing often leads a fatal loss of their mastery of the facts.

This depressing scenario is simply a statement of fact. This is the reality lay litigants face. Many times I have seen a lay litigants in court, shaking in their boots at the mere austere appearances of the courtroom, with an impatient judge sitting 5 to 10 feet above them, who insists on being called "my Lord", and then, while down, having to listen to the lawyer they are faced against patronizingly say: "this is what I have been dealing with, my Lord."

Sometimes, I would guess this happens about 25% of the time, a lay litigant will inherit a kind and gentle lawyer representing the other side. Of course, that lawyer is not allowed nor would he give the lay litigant legal advice but he can and will freely give legal information.

Lawyers walk the fine line between being an officer of the court, apparently first and foremost, and being firmly allied with his or her client, who is paying for his services.

To give credit to most lawyers, I would estimate that 75% attempt to start off on the right foot with a lay litigant by extending legal information on a friendly basis. However, lay litigants, directly or indirectly, end-up expressing their suspicion with the lawyer's information. Once the lawyer gets a whiff of that, the tap is shut off. Which leads us to ....

RULE #2: BE NICE TO THE LAWYER.

If you get a bad vibe early, if the lawyer is rude, contemptuous or without any personality, or if you get some trustworthy feedback from other people that the lawyer is manipulative, disingenuous or deceptive with lay litigants, all in the name of an "adversarial system", then you will have to fall back on Rule #1.

Never breach Rule #2 unless you have to. Don’t burn your bridges.

At the same time, you need not drown in self-pity before you recognize that your first problem is the lawyer you lucked onto (using the word "luck" loosely!).Roger

If you can develop a good relationship with the lawyer, it is likely because the lawyer is a good lawyer. There are many of us out there who do not salivate at the mere mention of the word "self represented" or "lay litigant" but instead, lead with a policy of being an officer of the court first and in a position to guide and give information - not direct or give advice - so that the legal case can succinctly and fairly be resolved, without all the bravado sideshows so many lawyers foment as if it were a rite of professional passage.

RULE #3: BE HONEST

Some lawyers do mean-spirited things to each other, create an artificial delay to maintain a tactical advantage, write arrogant letters to each other designed for no other purpose except to antagonize, talk behind their backs or about judges to colleagues; wave pro forma threats of seeking costs, etcetera. After all, they will tell you, it’s an adversarial system!

Ironically, the judges tell us in everything they write and at lawyer conferences, to always maintain a policy of honesty above all; that the court will catch up to those that are arrogant, pompous or disingenuous.

And yet, after decades of practice, I can honestly say that in the legal profession, it can pay to be arrogant.

This is a sorry comment and not meant to be a generalization but in the times that I have seen lawyers choose a path of decency and respect against an arrogant and pompous lawyer, more times than not, and all other things being equal, the courts have given no credit to the soft approach, instead reading into it a lack of confidence in the lawyer’s client’s case.

I’m not proud of this reality but the lay litigant must be aware of this.

However, I must assume that these observations are an anomaly, perhaps merely a lawyer being too decent or too respectful at the wrong times. No lay litigant should play with "controlled arrogance" in Court. The absolute best lawyers never resort to this but of those that are successful in Court, many do. But for a lay litigant to toy it into their case would be like playing with matches in a dry field.

In any event, arrogance must be distinguished from dishonesty which lawyers, unless they have a death wish, would never play with in Court.

As in life, with justice and law, there can be no other policy then to be honest at all times.

Justice and the law is, if nothing else, the home of honesty and truth.

Most judges are good decent people trying to make a decision based on facts thrust upon them and based on law books which for the most part, propose a fair and just solution.

If a judge gets a sense of dishonesty from a lay litigant, your goose will be cooked. You may never see what hit you until you get your final judgment. A bit of dishonesty in court is like a drop of ink in a glass of water; rightfully or wrongfully, it will discolour your entire case.

This may be asking too much of a lay litigant and in some regards it as a bit of a risk because the judge may think that you are trying to be a little too cute, but it is often suggested to lawyers that they make sure to throw in an adverse fact or two, as done properly, this enhances the overall credibility and persuasiveness of the case.

If the opportunity arises for you to admit to the court and adverse fact, you should do it. Do not prostrate yourself in front of a court and beg for mercy. That will not work. Just keep in the back of your mind that the court needs to make a decision based on the facts proven before it. If you save the court some time by admitting a fact not otherwise crucial for your case, it suggests that you’re just seeking the truth and ought to hold you in good stead with the judge.

RULE #4: BE RESPECTFUL WITH THE JUDGE

Never interrupt the judge. Some lawyers, even I have been known to do this, will interrupt the judge on rare occasions to correct a mis-stated presumption but I do not recommend this for lay litigants.

Never argue with the judge except in the most apologetic of terms.

This is a phenomena of our court system and the reverence of judges and lawyers to the Court, justice and the law.

We are expected to refer to the judge like he was a king in medieval times.

Even though he is Mr. or Mrs. so-and-so, our neighbour, we have to call him "My Lord" and for female judges, "My Lady", including the use of capital letters when it is written. When speaking to the court, always be overly respectful and courteous. Too much is near impossible and not enough can be fatal.

Again, an art and not a science.

Again, a clear disadvantage for lay litigants who cannot be expected in a matter of a few moments or after abrupt remonstrations from the court, to master the particularities of court etiquette.

Lay litigants have two opportunities lawyers don't and they must seize either or both of these if presented to them. The first is the friendly lawyer as described above. The second is the friendly judge.

Some judges, in my experience about 50% or higher, go to great lengths to balance the case before them by giving liberties to lay litigant not afforded to legal counsel. This usually incenses the insecure lawyer because it is overt hand-holding from a judge who is supposed to be like Lady Justice, blind and holding perfectly balanced scales of justice in her hand.

However, this is not an article for lawyers dealing with self represented parties; this is an article for self represented parties and it would be incomplete if this disadvantage was not clearly identified for the lay litigant entering battle by trial.

RULE #5: JUDICIAL MEDIATION

Any chance a lay litigant has for judicial mediation (chaired by a judge), sometimes called a case conference or a settlement conference, take it!

Take it for two reasons.

First of all, try to settle. It does happen that litigated results are better than a mediated result but this is the exception, not the norm.

You can be cocky and sure of your case but any lawyer who has ever gone to court will know that even with all of facts and all the law on his side, if you get the wrong judge on the wrong day, you are toast.

And if you are a lawyer, you know that you ought not to risk the client's case with a litigated roll of the dice by pompously walking away from an honourable, just and certain settlement offer on the table. This is not a hand a smart poker player would play. You might win one here or there but the odds are stacked against it. Know though that a lawyer stands to make a lot of money if the case goes to trial, win or lose (unless it is a contingency fee case – rare against a lay litigant) and if their client shows the slightest inclination to go for broke, some lawyers meekly "defer to their client’s instructions" but enthusiastically throw their hat into the trial ring.

Judicial mediation, for the lay litigant, means sitting down at a table, outside of the courtroom (although some judges do not get this and insist on hosting mediation in the court room perched on their elevated dais!), at a informal meeting hosted by the judge where the case is openly discussed on a without prejudice basis. The judge will direct the parties as far as matters of process go and will also engage in mediation if it is a formal mediation session, or, usually, if requested by the parties (it may be that this request has to be made in advance and in any event, communicated to the other side so they can be ready for it).

Judicial mediation is a golden opportunity for the lay litigant.

Typically, a judge will give the lay litigant legal information directly on point. The lawyer or a lay litigant may raise procedural issues at which time the judge may comment on those issues, and again giving the lay litigant legal information right on point. This opportunity alone makes judicial mediation a tremendous asset to lay litigants.

The second advantage is an opportunity to resolve the case. No lay litigant, unless they are extremely wealthy, a glutton for punishment or it's just something on their "to do before I die" list, should enter trial if it can be avoided.

Trial is very stressful for the lay litigant.

It's no picnic for lawyers either, who have to carry their client’s responsibilities on their shoulders. We cannot bill for sleepless nights.

  But it is worse for the lay litigant.

The facts and the law will spiral seemingly out-of-control on the very eve of trial creating an emotional crisis possibly fed, in part, by the lawyer who might sense this and, in the name of the "adversarial system", purposely shovel coal onto the fire.

And then, if you get to court and have a cranky judge, one who is not sympathetic to why you have not put a third mortgage on your house to get a lawyer, you can be in for a week of hell.

Win or lose, litigation psychosis will take months or even years to fully exit your system so mediate if you can.

HOPE!

For the self-represented litigants, there is considerable good news on the horizon.

Small claims, some family courts and some criminal courts now have simplified procedures and plain language, shortened court rules. Unfortunately, some of the rules open the door to quick justice and sometimes, you get what you pay for. However, on the expectation that judges will be judges wherever they are, this is a considerable initiative.

Even some of the higher level courts are considering substantial simplification. For example, the British Columbia Supreme Court has recently announced revisions to the court rules which are simply put, from the lay litigant's perspective, extraordinary. Most lawyers I have spoken to are deeply concerned with the revisions which to me, is a good sign. Lawyers are traditionally conservative where change can never be a good thing. They see any change to the rules as a clear-cut in a forest. To their credit, they come at the rules with a comprehensive sense of the whole: fair, predictable and adaptive. It ain't broke, why fix it? It is respectfully submitted that that attitude simply shows that lawyers don’t tend to pay lawyer bills. The judges, on the other hand, have so seen a havoc the present rules have wrecked upon the justice system, that it is that bastion of conservatism that is spearheading the changes. Please see bcjusticereviewforum.ca/civilrules for more information on that initiative.

REFERENCES: