Let’s face it – lawsuits are expensive, as are lawyers. In Ontario, an unsuccessful lawsuit often comes with cost consequences. In an effort to avoid the ramping up of theirr own legal fees, a self-represnted party may very well risk incurring the hefty costs of the opposing party’s lawyer fees. Consider, then, the circumstances under which you might need limited scope legal help for your lawsuit.
Many self-represented litigants overestimate their ability to effectively articulate the grounds of their legal position. They have lived and breathed the circumstances of their legal case, and so, they feel best able to put forward what they consider to be all the relevant facts and evidence in their lawsuit, without the need for legal assistance.
Keeping It Simple
The most common litigation error I have seen with self-reps is a tendency to bloat their court submissions with irrelevant details and verbiage that more often than not tries the patience of the judge. Judges, are, after all, human. Before they wade into the swamp of a complicated case, the last thing a judge wants is to read The Novel of The Legal Parties’ Dispute.
Consider hiring a lawyer on limited retainer to help you edit your affidavit, your Statement of Claim, and your legal arguments down to the most crucial points. When the judge reads your court submissions, they’re looking for the meat on the bone of your case, not the fat around it.
Weighing The Strengths and Weaknesses of Your Evidence
Because the costs of litigation are so high, it is important to be objective about your own legal position. How strong is the evidence that supports it? How strong is your opponent’s evidence? One of the hazards of representing yourself is that you are being called upon to objectively judge the quality and relevance of your evidence.
But how can one be objective and unbiased about a legal dispute between contentious, often mutually hostile, parties? No matter how hard you try, it is difficult to filter out emotion and bias. Your own subjectivity, in turn, may fatally impair your ability to be realistic about the strengths and weaknesses of your case.
I often see self-represented parties focus on points and evidence that I consider to be irrelevant to their case, while they fail to emphasize – or even notice – a small but crucial piece of available evidence that could have made all the difference between winning or losing a motion.
In a case where the legal stakes – and the costs of losing – are high, it may very well be worth the comparatively limited investment to retain a lawyer to assist with reviewing the evidence that backs up your legal position.
Identifying The Legal Grounds of Your Case
From the outset of litigation, you need to ensure that you have identified the proper legal grounds that support your position. If you are proceeding by way of a tort action, can you establish proximity between the parties and a duty of care? Were the damages reasonably foreseeable by the party against whom you allege tortious conduct? Did you do your reasonable best to mitigate the damages you suffered? Did your carelessness in some fashion contribute to your own damages?
Is your legal action based on a breach of contract? Were promises made by the other party, either in writing, verbally, or by way of conduct? Were the terms of the contract clear to both parties? Did you rely on such promises in a manner that caused you damages? Are your damages quantifiable? To what extent are you able to prove the scope of your damages?
It is hard enough to be objective about the facts of one’s own case. It is even more difficult for a self-represented party to subject themsleves to the kind of deep, intensive inquiry that a lawyer could apply on a limited retainer consultation.
When you go to court, the judge will be looking to see whether you have identified the proper legal grounds behind your position – and whether your facts, your supporting evidence, legal arguments, and case law submissions speak to those grounds.
Obtaining legal help, on a task-by-task limited scope retainer, may ultimately save you on costs down the line.
Identifying On-Point Case Law
Thanks to the Internet, it is possible for sophisticated self-represented parties to do their own case law research without the assistance of a lawyer. For instance, the Canadian Legal Information Institute (CanLII) offers an excellent free online database of Canadian case law to members of the public.
Nevertheless, depending on the complexity of one’s case, legal research is a discipline that often requires the skills of an experienced lawyer, who is in a better position to consider whether a novel legal point needs to be supported by case law.
In our common law system, judges rely on case law precedent to guide them in adjudicating not only on the application of legal principles, but also in determining a legal dispute based on similar facts from prior cases. Self-represented parties often fail to consider that their circumstances may not be so unique, that a similar fact situation may very well have played out in the courts.
Though you might consider yourself sophisticated in the handling of your own case, consider that an experienced lawyer has dealt with innumerable cases, and has the ability to determine which points require case law support, and if so, how to go about searching for relevant, on-point case law, and how to best incorporate it in your legal arguments.
Creating and Responding To Legal Arguments
Your factum is the document in which you summarize the facts from your affidavit, and then comment on the evidence, the legal principles, and the case law in support of your legal position. It is important that the Law and Argument portion of your factum is succinct and that it gets across your points in as persuasive a manner as you possibly can.
As a self-represented party, not only will you be called upon to present your own legal arguments, but you will often be tasked with responding to the opposing party’s legal arguments and case law. To what extent will you be able to refute the interpretation of the other party’s cases, particularly if they claim that the case law clearly supports their legal position?
This is an area where limited scope legal assistance might be tremendously helpful to a self-represented party. Assisting counsel can help you identify where the opposing party’s allegedly supportive case law might actually be distinguishable from the governing facts of your situation. In short, the case may have turned on an essential fact that was not applicable to your unique circumstances. In such an instance, the case may not be as supportive as the other party had framed it.
Experienced counsel can help you not only to identify such legal points, but to clearly articulate them in writing.
Keeping You Focused on the Underlying Principles of Costs
A limited scope lawyer can be crucial in advising you on principles pertinent to the judge’s exercise of discretion in awarding costs in a legal proceeding. In Ontario, Rule 57.01 (1) of the Rules of Civil Procedure sets out that, in addition to considering the result of the proceeding and any offer to settle in writing, the court may consider a number of factors in an award of legal costs, among which are:
i) Whether the conduct of any party tended to shorten or to lengthen unnecessarily the duration of the proceeding; and
ii) Whether any step in the proceeding was improper, vexatious, and unnecessary.
I highlight these two particular factors, among many others, because they happen to be the factors for which many self-represented parties fall afoul, most often due to a mix of inexperience and emotion. Though judges often give self-reps a certain amount of leeway due to the recognition of their comparative lack of court sophistication, they must still be alert to conduct which they perceive as objectively unreasonable.
In a hotly contested lawsuit, it’s important to get an objective view on how you have conducted your case. One common hazard experienced by self-reps is that a highly contentious opposing lawyer may repeatedly provoke them, causing the self-rep to respond in a manner that has the effect of casting them as unreasonable and looking as if they are the ones who are being vexatious or unnecessarily drawing out the proceedings.
If you have a sense that the opposing lawyer tends to consistently “game” your comparative lack of experience, and that you repeatedly lose motions – and incur costs – due to such conduct, it may be wise for you to call in limited scope counsel to help you in getting a handle on the toxic interaction between the legal parties.
A limited scope lawyer may instruct you on the pertinent Rules of Professional Conduct that apply to all members of the Bar. For instance, the Law Society of Ontario mandates that lawyers be courteous to the opposing party and that they agree to reasonable requests with respect to trial dates, adjournments, the waiver of procedural formalities, and similar requests that do not prejudice the rights of their client (Rule 7.2-1.1).
Though the Rules of Professional Conduct have no direct application at court, they do serve as a reminder for the opposing lawyer to recognize their obligations as a member of the Bar – and serves to put them on notice that you are aware of such obligations.
Where opposing counsel consistently acts to cause undue delay in the proceedings, your limited scope lawyer may assist you in communicating to opposing counsel (and in your cost submissions at court) the underlying principles set out in Rule 57.07(1)(c) in the Rules of Civil Procedure, which empowers the court to make an order requiring the lawyer to personally pay the costs of any party as a result of such conduct.
You should be aware that being a self-represented party need not be an all-or-nothing proposition in terms of obtaining legal assistance. Depending on your level of sophistication, you may require one or even several limited scope tasks at certain stages of your legal case.
Having a lawyer on call, from time to time, may in the end be the most cost-effective course of action you can take in the conduct of your case.
The preceding is presented as general information only, and should not – nor cannot – be relied upon as legal advice.