When I was involved in a lawsuit many years ago, I believed I could just go to court and tell the judge my story. Of course, I knew about the complexities of the law, especially since I entered law school halfway into the lawsuit. However, deep down, I had faith in our legal system. I believed that once a judge hears my story, the facts would be so compelling that there is no chance they would not decide fairly (which means, in my favour.) Moreover, isn’t hiring a lawyer an option, rather than a necessity? After all, people are allowed to represent themselves, and the court system is designed to serve the public. And who else knows the facts more than the litigants themselves?
It turns out that the more I understood the realities of litigation, the more discouraged I became about the idea of self-representation. There are three main assumptions that I had when I was a litigant, which turned out to be false.
Assuming that rules of procedure are mostly common sense
While some rules of procedure are based on common sense, a lot of it is not! For example, even right from the start of a lawsuit, plaintiffs are required to go to court and issuing a Statement of Claim and serving it to the defendant. There is a deadline for defendants to serve and file a defense. So far, this is easy to understand this first stage of the process, whose purpose is for parties to give notice of each other’s position. However, a plaintiff cannot simply write their story down on a piece of paper in whatever format they choose. If their Statement of claim does not have a “cause of action”, their lawsuit risks being dismissed. In addition, that there are very specific ways a party is allowed to serve the pleadings. For Ontario Superior Court matters, the notices, or “pleadings” themselves must follow a very specific format and served only by a few methods. In addition, there are numerous other bits of procedural information that a litigant must know, such as “practice directions” and “notices to the profession”! These vary from geographical location to location even in the same province. Such notices are updated frequently, especially during Covid. Finally, there are rules of evidence, which govern what type of evidence can be admitted at trial or at a motion. The amount of knowledge that one must learn is thus overwhelming. Lawyers often take years to accumulate the skill to apply all this knowledge as they practice. They attend continuing legal education seminars or discuss practice issues with colleagues to keep up with it all. Self-represented litigants do not have this support.
Thinking that I can persuade a judge by presenting the facts alone
Going into law school, I was shocked to learn about the concept of precedents, (“stare decisis”) a foundation in our common law. I had imagined laws only included statutes, which are easily accessible. I did not realize that there was also “judge-made law” or “case law”. These concepts are like “ABC's” to common law lawyers, but bewildering to most people. Before law school, I assumed I could rely on presenting the facts of my case and applying a conventional understanding of fairness. I did not realize how much skill and practice it takes to do legal research, and to formulate legal arguments. It began to dawn on me that a self-rep knowing just the simple bits of procedural steps pitted against a lawyer is like a novice chess player matched against a grandmaster. Yet, when I was a self-represented litigant, I did not realize this. Oddly enough, my ignorance gave me confidence as a self-rep, and my faith that justice will prevail persisted.
Being convinced that my case is so simple
I remember being very biased and not even realizing it. This might sound funny, but I do remember thinking that my earlier training as a scientist had trained me to avoid being biased. Sadly no.
Perhaps one tends to think in terms of absolutes when one believes they have been wronged: right and wrong, black and white. You are either on my side, or you are not. Little did I realize that being trapped in this mindset completely snuffs out any motivation to arrive at a creative solution to a dispute. It wasn’t until I had clients on my own that I realize, most of my clients felt the same way: that it is so “obvious” that they are “in the right”. Things are usually only simple when you are unable or unwilling to see the other person’s point of view.
Knowing what I know now, I would have advised my earlier self to try harder to see a dispute from the opponent’s perspective. One reason for this is that you can anticipate your opponent’s arguments, and your own case’s weaknesses. But an even more important reason is to be able to see the dispute from both points of view, so that you can craft a mutually agreeable solution, a settlement. I now embrace what my first-year law professor told us, “The legal process is not so much about justice as about conflict resolution.” The resolution comes when parties are able to create a mutually agreeable solution, when they truly understand each other’s perspective. A settlement does not necessarily mean you give in. Each side gets heard, possibly with the help of a mediator. The parties create a resolution together themselves.
Representing yourself is not impossible, but it is definitely more challenging than I anticipated. Self-represented litigants would likely need legal advice from a lawyer, as well as some foundational knowledge on how the legal process really works. For this reason, I co-founded a group called Self-Rep Navigators, to encourage lawyers to offer limited scope or coaching to support one another. I also founded a project called Litigation Help-Public Legal Education, so that the public can learn about how the court system actually works (also available on YouTube). I hope this article is helpful to those who are now engaged in litigation.