Find a Lawyer to Help Write a Statement of Claim
If you’re a self-represented litigant in Ontario, you should consider hiring the unbundled legal services of a lawyer to help write a statement of claim, primarily to avoid the common pitfalls of going into court with a poorly formulated case.
The statement of claim (also known as as a pleading) represents the crux of your case. It should provide a concise chronicle of the facts leading up to your legal dispute, revealing the remedies you are seeking (whether in damages or by way of other forms of relief), and should specify the legal grounds (tort or contract) that form the basis of your request for relief. It is the document the judge will use to form their first impression of the strengths and weaknesses of your legal claim.
Practically speaking, if you are unrepresented by counsel, a poorly drafted pleading may signal to a judge (whether consciously or unconsciously) that you do not have a good handle on the merits of your case, or that you lack the sufficient skill to articulate the substance of your claim in a concise manner that will not try the judge’s patience.
The Hazard of Poor Writing and Editing Skills
Many unrepresented litigants overestimate their ability to communicate in writing the substance of their legal position. It is difficult enough to be objective in evaluating the strengths and weaknesses of your own case. A second opinion –even on a brief review – may help you to identify some crucial missing elements in your claim that you overlooked because – let’s face it – no one will ever know the details of your legal dispute better than you do.
The problem is, you may be so familiar with your facts that you may forget to include small, crucial details that are necessary to understand how one event flows into another – and, most crucially, how all the pieces of your narrative puzzle fit together in making out the legal grounds that underpin your claim for damages.
When writing out your claim, you want to make sure that your reader will be able to keep their eye on the bouncing ball: What is this claim about? Where is it going? Why does the judge need to know this fact? Is it relevant to the legal grounds? How does this fact lead to your right to damages?
When you hire a lawyer to help write a statement of claim on limited retainer, they should have the experience to read your pleading with an objective eye toward ensuring that your account remains fixed on answering those critical questions throughout.
At the pleading stage, the facts in your statement of claim are presumed to be true. It is at the trial stage when the credibility of your account (and the evidence that supports it) will be tested by the opposing party. So, you need not lard up your pleading with a detailed recital of the evidence supporting your claim. The documentation of your evidence will come at a later stage, long after you file your pleading, in the form of an affidavit with supporting exhibits.
In the meantime, all you need do is to show that your claim – if the basic facts are presumed to be true – presents a case that merits a trial, based on a concisely written chronicle of facts that points to bona fide legal grounds that could potentially garner you the judicial relief you’re seeking.
At the pleading stage, you don’t need to prove your case. Again, that will come at trial. You just need to show that you have a basic case to make, that it’s neither vexatious nor frivolous. If you are unable to do so, then you put your pleading – or parts of it – at risk of being stricken out on summary judgment, with all the cost consequences attendant on that, and with possibly no leave given to amend your defective pleading.
Many inexperienced litigants make the rookie mistake of larding up their pleading with too many irrelevant details, presenting a claim that reads more like a novel. When that happens, you risk testing the patience of the judge, who may lose confidence that you understand the guts of your case.
Beyond the hazard that you might trigger the judge’s bias against you, there also exists the risk that the judge will skip over some of the crucial elements of your case, particularly when those elements are buried under a sea of irrelevant details and commentary.
All of which is to say that judges are human. They are not robotic readers who have the capacity to fully assimilate – much less appreciate – the many incidental facts of your legal dispute as you subjectively understand them. They, too, need to be oriented and grounded to your facts, to ensure that they don’t misapprehend the essential elements that drive your case.
To make the best impression, you need to ensure that you have performed an optimal edit of your claim before you file and serve it. As even the best of writers often need a second pair of eyes to get a more objective sense as to how everything fits together on the page, you should consider hiring a lawyer who has the requisite experience in determining the best way to tighten your statement of claim – to make those judgment calls as to what should be cut, and – just as crucially – what gaps need to be covered.
Filling in the Gaps
Again, nobody knows the facts of your legal dispute better than you. A common problem, however, arises when one’s over-familiarity with their own dispute blinds them to the reality that the judge who will be reading the pleading is coming into this with no prior knowledge of the small, connecting details that might make all the difference in perceiving a claim as strong or weak.
Some inexperienced litigants often make the mistake of being too concise, serving a statement of claim that lacks sufficient details. If your claim, for instance, is based on legal grounds of fraud, misrepresentation, or negligence, you want to make sure that your pleading is not riddled with bald allegations, lacking in particulars.
It isn’t enough, for instance, to simply state that an opposing party defrauded you. You need to plead the basic facts that point to fraudulent conduct (while taking care not to confuse a recital of such facts with a recital of otherwise irrelevant vexatious commentary attacking the other party’s character).
If your legal grounds are based on negligence or a specific tort, you need to understand the basic elements of the grounds being pled, and assure that you have included the minimum number of basic facts that cover the necessary elements of the grounds you are claiming: If you are asserting negligence, then what particular duty of care did the defendant owe you at the time? What did they do to breach such duty? What particular damages did you sustain as a result of such breach? Do your facts reveal a sufficient proximity between the duty owed and the conduct alleged to have resulted in damages?
If your legal grounds are based in a contract dispute, you need to ensure that your facts have covered the essential elements of contract law: Was there a meeting of the minds? Did you concisely spell out the relevant terms of the contract in dispute? Were such terms written, oral, or signaled by way of custom or a particular course of conduct? Did you sufficiently particularize your expectations on the contract performance, including the facts leading to a very particular breach?
In an effort to be concise, inexperienced litigants often make the mistake of watering down their statement of claim to the point that it misses those crucial facts that are necessary to nail down the basic elements of the grounds they are claiming, including their entitlement to judicial relief.
Hiring the services of an experienced lawyer to help write a statement of claim – for the limited scope purpose of assuring all the essential facts are pled – may ultimately save you cost and expense down the line, particularly if you are claiming a high amount in damages.
Substance Counts More Than Format
In writing their pleadings, too many self-represented litigants get caught up with the formatting of their claims. They assume that if they can get the answers to their basic format questions, then they are home free in bringing their claim without any assistance of counsel.
And yet…
The majority of unrepresented litigants lose their cases when going up against a represented party. One major reason may be due to the fact that – unlike their opposing party – they did not access the experience of a third party professional to look at, evaluate, and fix up the substance of their statement of claim before they filed it.
More often than not, this is due to issues of affordability. Not everyone can afford a lawyer to go on the record and take on a case from beginning to end.
But access to legal services need not be an all-or-nothing proposition. If affordability is an issue, then consider hiring the services of a lawyer who is able to provide you at least some limited scope assistance, with a fixed quote task – or set of tasks – aligned with your particular budget.
If you can’t afford a lawyer to help write a statement of claim, then consider hiring one to perform an edit of the claim you have already drafted. If you can’t afford even those services, then consider hiring a lawyer to review your claim and – on a time-constrained working consultation – suggest ways to improve it.
It may even be the case that, on as little as a one hour working consultation to discuss the overall substance of your claim – before you even have a written draft in place – the lawyer might provide you the key phrases you’ll need, along with suggesting how to articulate the seed of your legal dispute – in a way that connects it to the elements of the legal grounds you intend to plead.
In sum, any kind of legal assistance – even as little as one hour on a focused consultation – may be of crucial value to you in avoiding some of the more common (and, ultimately, expensive) errors that might otherwise render your pleading defective in substance. Hiring a lawyer to help write a statement of claim may avoid that pitfall.
Use Case Law Research to Assist with Writing Your Pleading
Finally, consider that there exists another affordable short-cut to assist you with writing your statement of claim – case law research.
If you find it difficult identifying the exact legal grounds on which to base your claim, case law research enables you to examine whether cases with similar facts to your own have been litigated previously, and if so, what legal grounds were pled; to determine what kinds of facts a judge had considered relevant in awarding damages in similar circumstances; and, most critically, in considering the litigation errors that other judges had identified in prior similar fact cases where the plaintiff was unsuccessful.
Such cases can often provide the litigant with a perspective in evaluating the pitfalls to avoid in structuring their own claim, particularly where a case identifies fundamental flaws that ought to have been addressed from the outset of a claim, at the pleading stage.
Without the benefit of similar fact case law research, even an experienced lawyer may be of limited assistance to an unrepresented litigant at this earliest of stages, particularly where it is unclear how to formulate the facts and issues of a legal dispute in a way that aligns it with case law precedent.
In sum, case law research helps you to get the best objective perspective on formulating the seed of your legal dispute, understanding the most effective way to frame it, along the lines that a judge may best appreciate.
If affordability is an issue, there exists a free public case law database, such as Canlii.org, to get you started. Depending on your budget and individual level of sophistication, you can either hire a lawyer to conduct case law research on your particular situation, or conduct it on your own, hiring a lawyer instead to review the cases you’ve found, and assist you in employing the results in evaluating the strengths and weaknesses of your own case.
Unrepresented litigants often make the mistake of overestimating the amount of damages they feel entitled to under their particular circumstances, exposing themselves to the cost consequences of taking their claim to a more expensive forum, when case law research might otherwise indicate that their claim may more expeditiously be litigated as a small claims matter, in line with the smaller amount of damages awarded in prior similar fact legal disputes.
In sum, case law research may provide you the basis for determining whether the scope of the relief you are claiming is reasonable under the circumstances. It’s yet another benefit that may come from hiring a lawyer to help write a statement of claim.
Using Your Statement of Claim as a Basis for Settling
Finally, you should consider that a well researched and drafted statement of claim may assist you in negotiating a mutually amicable settlement of your legal dispute.
In Ontario, a party may attract cost consequences if they obtain a litigation result that is not as good as a prior open settlement offer amount that they had previously turned down.
Moreover, if you are an unrepresented party, a well researched and drafted statement of claim signals to a represented party that you have a firm grip on the fundamental merits of your legal position; that it is in line with supportive case law precedent; and that, if need be, you do have occasional access to outside limited scope counsel who can periodically assist you in keeping your case from going off the rails.
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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 serves the Greater Toronto Area (including Markham, Scarborough, Vaughan, Etobicoke, Richmond Hill, Mississauga, Oakville, Newmarket, Barrie) and throughout the Province of Ontario.
He may be reached at (905) 737-9994 for an initial free phone consultation and a fixed fee quote. Mr. Cooper may also be reached by email at his web site SelfRepLawyer.ca