The Wild West. This is often how I describe Small Claims Court proceedings to my clients when the opposing party is a self-represented litigant. Recent calls, like myself, often have the opportunity to carry our own small claims matters. In sharing some of my experiences with colleagues, I have noticed a similar trend across the board: more often than not, no matter how strong my client’s case might be, small claims proceedings involving self-represented litigants are consistently more lengthy, costly and emotionally taxing for all parties involved.
In thinking about these challenges, I have noted some takeaways to keep top of mind in any matter with a self-represented litigant.
1. NEVER FORGET YOUR OBLIGATIONS UNDER THE RULES OF PROFESSIONAL CONDUCT
In a matter involving a self-represented party, it is inevitable that somewhere along the way, a self-represented litigant will ask questions that should be a red flag for any lawyer. These can be as banal as “when should I file this by?” Our Rules of Professional Conduct require that we ensure that (1) self-represented litigants are not under the impression that their interest will be protected by us and (2) that it is made clear to self-represented litigants that we are acting exclusively in the interests of our client.
Always being mindful of this during your interactions with a self-represented litigant, and in responding to the self-represented party, may be useful down the road. Making an effort to follow-up to confirm the substance of in-person or telephone conversations in writing will prevent any confusion.
Additionally, no matter how acrimonious the relationship may be between your client and the other party, ensure that you remain courteous, civil, and act in good faith, in keeping with your obligations under the Rules of Professional Conduct. This may mean that you have to modify your behaviour when dealing with a self-represented litigant: setting a professional but approachable tone in all communications with self-represented litigants or simplifying the usual legal jargon. Another example is to simplify the process (as much as possible), and find ways to avoid confusion. For example, when exchanging settlement offers, I make it a habit to include my proposed draft, and template acceptance offer, rather than only sending in a proposal referring to a standard full and final release.
Finally, there is usually an opportunity to recommend that the self-represented party obtain independent legal representation. In this regard, many self-represented litigants may not be aware that they qualify for legal assistance through Pro Bono Ontario, an organization to keep in mind when the unpresented party’s response to your recommendation is: “I can’t afford a lawyer”.
2. DON’T LET THESE OBLIGATIONS SCARE YOU FROM COMMUNICATING WITH A SELF-REPRESENTED LITIGANT
Particularly as a new lawyer, a normal reaction may be to strive to limit interactions with a self-represented party as much as possible. That said, this may ultimately be a disservice to your clients, as there are still plenty of opportunities to meaningfully engage with an adverse self-represented party, as you would with a represented party, with necessary modifications.
Don’t be afraid to request waivers, obtain consent to serve by email, and reciprocate the professional courtesies we are all used to. While this is not always possible with every self-represented litigant, most generally welcome suggestions to correspond by email, and provide (or receive) reasonable indulgences. This is even more relevant in the current circumstances where the procedure for small claims proceedings is ever changing to adapt to the evolving Covid-19 pandemic. Let’s be honest – we can barely keep up with the changes!
Conversely, however, be cognizant that there are occasions where strictly communicating in writing, or with witnesses, may be the appropriate course of action. In this regard, a thorough reading of the pleadings can tell you a lot about a self-represented litigant and, consequently, the appropriate communication style to adopt in your early interactions with the opposing party.
3. BE READY AND PREPARED AT THE SETTLEMENT CONFERENCE
The Rules of the Small Claims Court do not have anywhere near as many tools for dealing with difficult or unsophisticated litigants as the Rules of Civil Procedures do, nor are the deputy justices vested with the authority to provide the type of relief which may be warranted against a vexatious litigant.
The settlement conference, a mandatory step in small claims proceedings, provides your best opportunity to address many obstacles that come with navigating a proceeding against an unrepresented party. At these settlement conferences, judges have a very broad power to make orders and lawyers should seek to take full advantage of these. These can include requesting an outright dismissal of the claim, or can address a variety of procedural issues, such as service, expert reports, document production, etc.
You will often save your client’s money by spending a good amount of time preparing for a settlement conference, even for those cases you know will not settle.
4. LET YOUR CLIENTS KNOW IT MAY BE AN UPHILL BATTLE
Finally, it is important to warn your clients that dealing with an unrepresented litigant may lengthen proceedings and increase their costs. To prevent any surprises, it is important to warn them that they may be given more latitude by adjudicators concerned (rightfully so) with access to justice. While this may result in situations where it will feel unfair to your clients, it is a necessary factor that you and your clients must take into account when agreeing on a litigation strategy.
About the author
Genvieve Fauteux is an associate at Borden Ladner Gervais LLP.
This article orginally appeared on the OBA Young Lawyers Divsion's articles page.