Whether it’s the United States, Canada, Australia, or the United Kingdom, a cursory Google search shows that the number of self-represented litigants is on the rise in all of these countries. The presence of self-represented litigants creates additional obligation on courts and, in many cases, on the other parties in the litigation. In this practice point, we have provided you with a condensed list of tips and considerations for counsel facing a self-represented litigant.
1. Take the High Road
Whatever the reason a person becomes a self-represented litigant, in my experience, he or she in general more likely to be frustrating, ignore rules of civil procedure, take things personally, or even be abusive and rude.
It is important to recognize that, for an average person, the court process is confusing and intimidating, especially when he or she is under stress from the case itself. You should always keep your conversations, correspondence, and oral/written submissions respectful, even if the self-represented litigant does not make attempts to be courteous. Do not take advantage on a small technical mistake. You, as counsel, are supposed to be objective and act without personal emotion. Keep your ethical obligations front of mind.
Remember that self-represented litigants often will look to place blame elsewhere if the outcome isn’t to their liking and may complain to your bar association or disciplinary board about your conduct during the litigation.
2. Get It in Writing
The New South Wales Law Society in Australia has published guidelines for lawyers dealing with self-represented litigants. Chief among them is to record every communication in writing. This avoids those individuals who have no qualms about alleging all sorts of untruthful things about your conversations.
3. Know How Far a Court Can Go
Some judges may be more inclined to be lenient with a self-represented litigant in a way that they never would be with a lawyer. In 2006, the Canadian Judicial Council published the Statement of Principles on Self-Represented Litigants and Accused Persons, encouraging courts to, among other things, do whatever is possible to provide a fair process and prevent unfair disadvantage to a self-represented litigant, and not deny relief to a self-represented litigant on the basis of a minor or easily rectified deficiency. At the same time, the Statement makes clear that self-represented litigants must familiarize themselves with relevant practices and procedures, to prepare their own cases, and to be respectful of court process.
Sometimes, a court may appear to be overly helpful to the self-represented litigant. It may be that the court knows that the person’s argument is doomed to fail, but wants the person to feel that he or she has been heard and carefully considered by the court. However, if you feel that a judge’s assistance to the self-represented litigant could constitute excessive intervention, such as verging on providing legal advice, you should not hesitate to raise it on the record.
4. Realize That Your Client’s Costs May Increase
Self-represented litigants may flood you with correspondence and motions as a tactic to increase costs for your clients. Similarly, negotiations may take longer where the self-represented party is negotiating based on sentiment rather than the state of the law.
It’s advisable to set some ground rules from the outset with the self-represented party, i.e., advise them that you’re not their lawyer and cannot advise them on what steps to take; keep correspondence brief; and don’t argue with the individual in email exchanges.
Having an anticipatory conversation with your own client about potential increase in costs would also be helpful to manage your client’s expectations.
5. Stay Safe
There is always the chance that your personal safety is put at risk due a particularly difficult or belligerent self-represented litigant. Learn to catch the warning signs: increased anger and aggression, wide swings in attitude between hostile and charming, asking to meet in person despite there being no reason to, etc. Without the “buffer” of legal representation, self-represented litigants can let their emotions drive their actions. Take care of yourself!