In Ontario, an increasing proportion of legal parties are self-represented, primarily due to the fact that litigation is an expensive enterprise. Many unrepresented parties cannot afford a lawyer to provide full-time legal assistance for their case.
However, in hotly contested lawsuits, the difference between success and failure often comes down to the quality and credibility of your evidence, the force of your legal arguments, and your ability to understand and apply the relevant law to your unique fact situation.
The record for self-represented litigants is not an encouraging one. According to one estimate by the Self-Represented Litigants Project, about 75% of self-represented litigants ultimately lose their case when coming up against parties represented by counsel.
Though affordability remains a formidable access to justice barrier to many such litigants, one does not have to approach the issue of legal assistance as an all-or-nothing proposition, particularly when the personal and financial stakes of winning a lawsuit are high.
A common myth is that lawyers generally handle all aspects of a litigation case, which often includes drawn out communications with the opposing party, reviewing all documents pertinent to a case, drafting all court submissions, putting together the evidence and legal arguments, and taking care of all procedural matters. And yes, that is the case for those lawyers who go on the record. In such instance, the opposing party is then only allowed to communicate with the lawyer of record, leaving a fully represented party at the mercy of unpredictably tolling legal costs.
But at the end of that day, you don’t necessarily have to choose between the odds of losing your lawsuit while going it alone, and the odds of winning a case through legal assistance that comes with a catastrophically high legal bill.
Consider that there exists a third option – to retain a lawyer, on a limited scope retainer, who offers unbundled legal services for certain tasks that require a more experienced hand (and mind).
As a self-represented party, you must first take measure of your level of sophistication and in-born biases. To what extent are you capable of being objective with the quality of your evidence and legal position?
Most litigants believe in the justice of their own cause. They believe that they are right and that the other party is wrong, and demonstrably lacking in credibility. But therein lies the fatal problem: it is difficult to take a truly objective perspective on your own case without benefit of a second, arm’s length opinion, and even more so when your own inherent subjective bias is compounded by a comparative lack of legal experience and education.
A common assumption among litigants, represented or not, is that truth is on their side. But as most practicing lawyers know, truth is beside the point when you can’t prove your case to be true, much less credible. The key to increasing your odds of winning a case is to get justice on your side.
Justice – or, more to the point, a trial judge – is unlikely to respond to the force of your truthful convictions. Judges deal in the currency of evidence and legal argument. When they approach your case, they don’t ask themselves, “Is this true?” They ask, “Is this credible and relevant?
The Pleadings (otherwise known as The Statements of Claim and Defence)
On a very basic level, the judge wants to get a succinct handle on each party’s legal position, along with the grounds that support such a position. That familiarity – getting a lay of the land of a case – initially comes from a review of the pleadings, which must be concise and speak directly to your cause of action (if a plaintiff) or the basis of your defence (if you’re a defendant).
Many self-represented litigants – mostly due to inexperience – fail to properly plead the legal grounds in support of their action. Others confuse the pleadings with an affidavit, and instead use the pleadings to tell the oversized novel of their interactions with the opposing party, burying the judge in details that are inappropriate (and often not relevant) to the pleadings. . Still others may improperly seed their pleadings with legal argument and case law, which is more appropriate to a factum, not a pleading.
The importance of the pleading lies in its ability to give the judge a clear overview of each party’s legal position and grounds. The defendant cannot give full answer and defence – in the form of a Statement of Defence – without first understanding the case they need to meet from the plaintiff. A poorly constructed pleading is one that does not set out any ascertainable cause of action or that sets out facts that, if assumed to be true, have no reasonable opportunity of making the plaintiff’s case. Under such circumstances, a defendant may move for summary judgment on the basis of the pleadings alone.
The basic purpose of the pleadings is to answer this fundamental question: “Does the plaintiff have any case to make?” It is not the same as evaluating the chances of winning or losing – though a good pleading, in my view, is one that should tell the plaintiff whether or not it is worth risking the cost consequences of a potentially drawn out dispute or to instead consider more realistic settlement options, if available.
Similar considerations apply to a defendant at the pleadings stage. As noted above, a pleading must give the defendant an idea of the case they need to answer. If the defendant can be sufficiently objective – and few of us seldom are when representing our own interests – the plaintiff’s pleadings should direct the defendant to consider whether they have any evidentiary basis or legal argument to resist the plaintiff’s legal claim or whether they should instead fold their hand and seek a reasonable settlement in line with the likely litigation result.
Settlement and the Cost Consequences of Rule 49
As a self-represented litigant, the situation becomes more complicated when considering the cost consequences of opposing a party that has full scope lawyer representation. In Ontario, an award of legal costs often follows the result of the proceeding.
When an inexperienced self-represented party faces experienced opposing counsel, the risk of losing is compounded by the commensurate risk of being saddled with paying a proportion of that opposing lawyer’s legal fees. In an effort to save on your legal fees, you could potentially end up paying your opponent’s fees.
Depending on the nature of your case, the risk could be financially crippling. Fortunately, the courts in Ontario provide an avenue to encourage each party to be reasonable in their expectations of the litigation outcome.
Rule 49 of the Rules of Civil Procedure sets out a framework for settlement that has cost consequences in favour of the party who provides an open offer to settle that is as good as or better than the subsequent litigation outcome. In general, Rule 49 directs the court to disallow an opposing party from recouping a proportion of their legal costs from the date when a reasonable offer had been proffered to them, the reasoning being that this party had an available settlement opportunity on the table that was as good as or better than the result obtained at trial; they needn’t have incurred the legal costs associated with rejecting a reasonable offer and proceeding to litigation.
Rule 49 is there to encourage both parties to be reasonable about their prospects for success and failure. Its purpose is to incentivize prospects for reasonable settlement and to discourage each party from proceeding to costly litigation of their dispute. In theory, it should work as between the parties. In practice, that’s another story.
Many self-represented litigants are unaware of Rule 49, which theoretically may be employed to assist them in getting a handle on a vexatious opposing lawyer who is running up costs.
Rule 49, then, provides a realistic avenue to insulate you against the cost consequences of a stubborn and unreasonable opponent. To use it effectively, a self-represented litigant needs to get a clear, objective view on the strengths and weaknesses of their own position.
How can you determine the basis for a “reasonable” settlement offer? If you otherwise have a strong case to make, will your offer be much lower than you could otherwise obtain at trial? Will it be unrealistically too high to attract the favourable cost consequences of Rule 49? Is your case even worth pursuing (or defending)?
Summarizing Your Case
First and foremost, a self-represented litigant should be able to summarize the “seed” of their case.: Who are the parties to the dispute? What happened between them? What are the remedies that the litigant seeks? And on what legal grounds is the litigant seeking such remedies?
All too commonly, the core documentary elements of many self-litigated court submissions are presented as an incoherent mishmash of details that have the effect of obscuring – and burying – the essential thrust of their case.
In practice, no case is too complex that its main elements cannot be distilled in a summary fashion of no more than a page or two. If a self-represented litigant consistently has difficulty setting out the overview of their case without making it into a mini novel, it may be symptomatic of a noticeable difficulty in identifying and in communicating the essential details of their case. It often, though not always, also points to an insufficient ability to realistically evaluate their position in a way that overcomes their subjective bias.
Put bluntly, if the self-represented litigant can’t articulate “the lay of the land” of their case to anyone other than themselves, it is highly unrealistic to expect that a judge should be able – much less have the motivation – to do the hard work of distilling the rambling account of the litigant into a coherent overview of their case.
Seeking Limited Scope Assistance
In such circumstances, it may be provident for a self-represented party to retain a lawyer for the limited scope purpose of assisting with summarizing the core elements of their case. Depending on the litigant’s budget, such assistance can come from the fruit of a paid phone consultation or through a more extensive review of the litigant’s documentary evidence at hand.
A word of warning, however. Whatever the self-represented litigant’s level of sophistication, a common experience of many litigants – whether fully or partially represented – is that they tend to lose control over the conduct of the retainer by failing to stay on top of their retainer with the lawyer.
Not all self-represented litigants choose to go without counsel for reasons of affordability. Some have had negative experiences with prior counsel, often having to do with losing control over the tolling of legal costs. Often, such litigants are relatively sophisticated insofar as they feel competent and equipped to conduct their own case law research, to draft their own pleadings, affidavits, and legal arguments. On many occasions, they have become soured on legal services that toll up their costs with little substantive “meat on the bone” to show for the outlay.
If a self-represented party seeks limited scope legal assistance, they should be mindful to proactively communicate to the lawyer the particular unbundled legal service that suits their particular needs.
General “case evaluation” is of little value to a self-represented litigant who has not mapped out a game plan for employing the fruits of that evaluation. Will this be case evaluation for the purposes of assisting with coming to a reasonable settlement offer? To determine whether one’s pleadings are coherent and concise? To determine what kind of supporting evidence one needs to back up their legal position? To help identify the grounds of that position? Or the case law to back it up?
The bottom line is that it is ultimately unrealistic to expect that a lawyer has the ability or the motivation to get inside their client’s head, and particularly so with clients who only seek limited scope assistance with certain unbundled (i.e. piecemeal) tasks.
For such reasons, many lawyers prefer to take on litigation cases on a full carriage basis so that it is left to their sole, educated discretion to determine the needs of the file from beginning to end. In this manner, they see themselves free – and duty-bound – to attend to the needs of the file rather than to the available funds of the client whose role is to finance those needs.
Limited scope assistance on a litigation file is even trickier since the lawyer is often consulting on a case in various stages of progress, on a limited budget and time scope, with an unfamiliar client whose unique needs cannot be easily identified from a single consultation.
A budget-conscious self-represented litigant must therefore do the necessary groundwork ahead of time to at least consider what kind of legal assistance is needed and how they might best employ the fruits of a limited scope consultation.
A lawyer’s “opinion” about “winning” or “losing” has little utility to a self-represented litigant if the opinion is not accompanied by any clear indication that the lawyer has identified the relevant legal issues in play; whether the client is capable of supporting their position with evidence; whether such evidence is credible; and articulating the degree to which similar fact case law, if known, may support or hinder the litigant’s position.
In sum, a self-represented litigant who opts to seek a second legal opinion should make sure that the opinion provides some kind of material substance that the litigant can use toward some practical end – toward strengthening a pleading; shoring up one’s evidence; mapping out one’s legal grounds; or, as noted above, helping to summarize and articulate the “seed” of the case that the litigant intuitively feels but is unable to articulate without assistance.
The bottom line is that a self-represented litigant, who seeks limited scope legal assistance from time to time, should work on cultivating the ability to at least consider and to communicate to a lawyer what kind of problem they are having with their file and what kind of limited scope task they seek to address that problem in a reasonably direct and cost-effective manner.
“War-Gaming” Your Case
From the outset of litigation, a litigant should evaluate the strengths and weaknesses of their case. In light of the adversarial nature of litigation, a litigant needs to ensure that the foundation of their attack (or defence) is solid before making the choice to proceed to battle.
Toward that end, a limited scope consultation to evaluate the overall structure of one’s case might be of tremendous value to a self-represented litigant. But case evaluation is an art, not a science. Every lawyer has a different opinion, and it is neither reasonable nor realistic to expect that a lawyer can guarantee a result one way or the other.
However, most lawyers have the comparative advantage of experience and legal training. Ideally, they should be able to envision a client’s case from the perspective of both both plaintiff and defendant. The essential value of the lawyer’s experience in this regard is that they should be able to adversarially test the strength of a client’s position by anticipating the potential attacks on that position from any opposing party, whether real or theoretical.
By contrast, the experience of many self-represented litigants may not extend any further than their singular legal dispute. They may not acquire the feel for the ebb and flow of legal reasoning that eventually comes – or should come – to an experienced lawyer.
As noted above, the legal costs of obtaining counsel can be a formidable barrier to certain litigants who feel “priced out” of the market for obtaining legal counsel. But the costs of obtaining limited scope legal assistance to “wargame” the strengths and weaknesses of one’s case may be comparatively little when weighed against the costs of going blindly into a high stakes litigation battle where the opposing party’s high legal costs pose an ongoing risk.
As no two self-represented litigants are alike, and each may come to a lawyer for assistance at different stages in their case, it is important to view “war-gaming” more as a kind of checklist review of what kind of substance your litigation case already has – or will need – in order to put “meat on the bone” of your evidence and legal arguments.
If the aim of a limited scope paid consultation is to review evidence, the client should work ahead of time to assemble a chronologically and/or thematically ordered evidence file, taking special care to use relevant subject headings to key the lawyer in to what each folder contains so that the lawyer can expeditiously review the matter.
Where an affidavit has been filed, along with supporting exhibits, the nature of the evidence consultation should be more structured. If the affidavit is too lengthy – or none has yet been drafted – the client should work to have in hand a written summary of the case, identifying the parties, the dispute between them, and the grounds on which a remedy is being claimed. A good summary of the case at hand will assist the client in getting a more effective evidence consultation from the lawyer.
An effective evidence consultation is one that provides the self-represented litigant a perspective on what part of their narrative requires additional evidence support, along with determining what kind of evidence is most relevant to one’s case, and what kind is not. The scope and quality of one’s evidence is generally assessed by courts on a cumulative basis. The party that is best able to put forward a package of relevant and reliable evidence is often adjudged to be the more credible party at trial.
As many litigation cases ultimately come down to the weighing of evidence, an experienced lawyer’s input on the strengths and weaknesses of the litigant’s available evidence should help to give the litigant a more objective, third party overview on their case. Additionally, an objective overview, should make it more likely that the litigant is able to formulate a reasonable settlement offer that is more in line with the expected litigation result.
But what kind of guide might a self-represented litigant use to guess at the prospects for success or failure at trial?
The Multiple Uses of Case Law Research
Many self-represented litigants – and, sometimes, lawyers – fail to appreciate the multiple and related benefits of using case law research, particularly from the outset of litigation.
The Canadian legal system is based on a consideration of judicial precedent. Since judges rely on prior cases to guide their discretion on similar fact situations and legal issues that have been previously litigated, it is all the more important that a self-represented litigant appreciate the fundamental value of case law research.
Case law research serves a litigation purpose that is analogous to nutrition and exercise in the maintenance of health. Both support a good personal outcome, with multiple benefits.
From a settlement perspective, case law research provides a basis for determining a reasonable settlement offer in line with the expected litigation result, particularly so if there exists a prior case with similar facts, issues, and similar types of supporting evidence.
Tactically, the use of case law research signals to the opposing party that your position is not merely subjective; that not only are you prepared to put forward supporting evidence, but that you have in hand a body of cases in which similar kinds of evidence were used in support of similar legal positions involving similar situations or legal principles.
In that respect, legal research may be used to induce an otherwise recalcitrant party to reconsider your settlement offer or suffer the cost consequences of a litigation result that is more foreseeable now that you have case law support behind it,
In terms of getting an objective perspective on your own case, legal research should key one into whether there exists similar fact case law that essentially refutes one’s own position. In such case, it would be in the litigant’s interest to make that determination early on in the course of litigation, well before they have undertaken the risks of moving the case forward. In short, case law may be used to inform a litigant’s judgment on when it is best to cut one’s losses and to fold one’s hand.
With the advent of the Internet, a self-represented party no longer needs to go to a law library to research case law. In Canada, the Canadian Legal Information Institute (CanLII) provides a free, online searchable database of cases.
A more sophisticated self-represented litigant may opt to conduct their own legal research, though they may still benefit by having a more experienced lawyer consult with them on how they might best apply the fruits of that research.
For example, I often use case law to help me strengthen a pleading; to align the drafting of a legal argument with phrases and keywords that were employed in cases that covered similar legal principles; and to help me identify which factors and evidence the court considered in prior cases involving similar or analogous situations.
Guided with relevant, on-point case law, a self-represented litigant may work to align all their successive court submissions around the case law that they ultimately intend to use in their factum of legal argument.
Moreover, case law research may be used to guide a self-represented party in the evaluation of their own evidence, taking note where other judges, in prior cases, determined that a similarly situated litigant was lacking the credible evidence to support their position. In other words, the case law may alert the litigant to similar evidentiary deficiencies that ought to be addressed before proceeding further. In that respect, case law research may be employed fruitfully to strengthen the evidentiary basis of an affidavit.
If a self-represented litigant feels neither comfortable nor competent to conduct such research themselves, they might consider the option of retaining a lawyer to perform this limited scope task on their behalf.
The initial cost outlay for case law research may, in the end, save the litigant from incurring the potentially far greater cost consequences of going blindly into litigation without any guide as to how the courts might evaluate one’s position, arguments, and evidence.
The Formulation of Legal Arguments
Even with relevant, on-point case law in hand, a self-represented litigant might require additional limited scope legal assistance to utilize the case law effectively in the formulation of one’s legal arguments.
Written legal arguments are generally presented in what is known as a factum. The factum is comprised of multiple parts. The first part summarizes the facts and background of the matter, referencing relevant paragraphs from the affidavit. Another section identifies the legal issues in play.
The Law and Argument portion of the factum ties it all together. It is here where the litigant cites and excerpts the relevant portions of case law that support both their legal argument and – where factually similar cases have been found – their legal position in line with the evidence and facts presented in the affidavit and exhibits.
It can be expensive for a litigant to retain a lawyer, even on limited scope basis, to draft a factum of legal argument. At root, the lawyer needs some time to assimilate the facts, issues, and evidence of the case so as to tie up all these disparate elements into a coherent, self-referencing package. Many lawyers may not feel comfortable to do so on a limited retainer, particularly when they were not involved in the design of the pleadings and the compilation of the affidavit and its supporting evidence.
Nevertheless, a self-represented litigant on a budget should be mindful of a number of alternative, more affordable options that might provide a self-represented party with a set of viable and persuasive legal arguments.
A lawyer is able to rely on their experience in interpreting and applying relevant case law to a client’s facts. Their background knowledge of legal principles enables them to identify which judicial case comments – known as dicta – might be referenced in support of a legal position.
Where the litigant cannot afford more extensive drafting services, a paid phone consultation might at least suffice to assist the litigant in formulating and streamlining their legal arguments in line with their available evidence.
Using Unbundled Legal Services Strategically
Even for experienced lawyers, litigation entails a complex interplay of various skills, both in procedural matters and in the substantive analyses that address the core of a legal dispute. In practice, an individual lawyer may perform more effectively with respect to some aspects of a litigation file than others.
The challenge for a self-represented litigant is to get a feel for which kind of lawyer is best to retain for certain limited scope tasks. Most lawyers offer a free initial consultation that is used for the occasion of identifying the kind of service that the prospective client might need or want.
This initial consult should be used by the self-represented litigant as an occasion to determine whether, first and foremost, the client is able to effectively communicate their particular litigation needs to the lawyer, and whether the lawyer is both open and alert to those needs..
Chemistry between lawyer and client is a good indicator as to the quality of service a client might expect from any counsel, whether retained on a full scope basis or by limited retainer.
Where one’s available legal budget is limited, a self-represented party should ensure that the lawyer they retain, from time to time, is one who understands their unique legal situation, is mindful of their budget constraints, and is able to offer unbundled legal services and advice with just enough “meat on the bone” so that that the litigant is able to make productive use of them.
The preceding should not be relied on as legal advice. It is offered as general information only, on an as is basis.
James Cooper, a Toronto area lawyer, provides flexible limited retainer arrangements and affordable legal help for self-represented litigants (in both civil litigation and family law cases) and for sophisticated clients concerned with managing their legal fees.
Mr. Cooper also provides quality professional legal research assistance and civil litigation support services to lawyers, law firms, and members of the public throughout the Greater Toronto Area (including Markham, Thornhill, Etobicoke, and Richmond Hill) and throughout the Province of Ontario.