Law Times

Law Times • June 18, 2012 FOCUS Case highlights difficulties of facing litigants without lawyers Self-represented opponents A the trial to assist the appellant, as needed, and to ensure that the trial was conducted in a manner that was fair to both parties," they wrote in the April 30 decision. The contrast between the appellant's viewpoint and the appeal court's finding highlights three-judge panel of the appeal court found the trial judge had in fact "attempted throughout the high expectations some self- represented parties have in court, says Cathryn Paul, who runs a collaborative family law practice in Oakville. "If one party has a lawyer and the other doesn't, you've got an immediate imbalance, but people often don't realize that until they get to court," says Paul. "I'm concerned that some BY MICHAEL McKIERNAN Law Times sented litigants, according to an Oakville, Ont., family lawyer. In Wodzynski v. Wodzynski, the recent Court of Appeal decision high- lights the difficulties faced by self-repre- unrepresented mother appealed a Superior Court decision that dis- missed her application for child support and a property transfer. She complained about unfair treatment from the judge. But instead, the unanimous no evidence of prejudice to her case from the judge' tance with her evidence and final submissions. "It' to be in," says Paul. "There's huge s a tough position for a judge pressure on them to try to be as fair procedurally as possible to both parties. This decision shows that they don't have to bend over backwards. These cases need to move forward whether both sides are represented or not." During the family law summit, Ottawa lawyer Carol Cochrane, co-managing partner at Low Murchison Radnoff LLP, present- ed her list of the do' of dealing with self-represented parties. Below is an edited version: s and don'ts DO'S 1. Take control. At the earli- est opportunity, lay out the ground "Indicate that you will only deal with them in writing, rules in Dealing with self-represented litigants in writing is key, says Carol Cochrane. back comes, act quickly to stamp it out. "You'll find all of a sudden, you get six, seven, a dozen e-mails a day looking for an immediate response, says Cochrane. "You will not agree to have them pop by your office for a chat, you will not agree to take phone calls." When the inevitable push- people think they can give it a try alone and then just try to fix it after the fact with an appeal using the same facts. Yes, it can be cheaper in the short term but in the long run, there are other costs to consider. You've got to bear the consequences of that decision." A recent study by profes- sors Nicholas Bala of Queen's University and Rachel Birnbaum of the University of Western Ontario reflected Paul' attitudes of unrepresented parties. At the Law Society of Upper Canada's sixth annual family law s view on the summit on May 10 in Toronto, they presented the results of a survey of 275 family law litigants in Ontario. The study found a significant proportion of unrep- resented litigants, particularly men, believed a lawyer wouldn't have gotten them a better result. A majority of men believed they were no worse off without a law- yer. There was also a hard core of 10 per cent who thought a lawyer would actually damage their case. In Wodzynski, the mother claimed the judge should have asked her if she wanted an adjournment, shouldn't have accepted the husband' books, allowed her presentation of evidence to become "nearly incomprehensible, to explain what was involved in making final submissions. But the appeal court found no issue with the judge's conduct. " and failed s document 2. Be nice. Procedural errors or documentary omissions present a temptation to ham- mer an opponent. But sim- ple acts of courtesy can help foster goodwill that will ulti- mately benefit the client, says Cochrane, who also makes frequent use of consents to late filing of documents. says Cochrane. "You may need to clarify this issue and indi- cate that you would appreciate just one e-mail a day and that you will respond as quickly as possible, hopefully within 24 or 48 hours." " 3. Pursue costs. at every step in the proceed- ing and let them know that you will when appropriate, "Pursue costs says Cochrane. "The fact that they're self-represented shouldn't prejudice your cli- ent' 4 Stay safe. "Self-reps may become angry or frustrated when the process is not evolv- ing as they hoped it would, and that anger may be direct- ed to you or your client," says Cochrane. costs." Rule 1(8) of the Family Law Rules allows the court to order costs where someone hasn't followed the rules or has disobeyed court orders. things turn nasty, courts can provide extra security, such as a police officer in the courtroom or an escort out of the building. In cases where It noted the mother never asked for an adjournment and in fact agreed to the filing of the docu- ment books. In addition, it found DONT'S 1. Don't give advice. "You're going to let them know that you're acting only for your client, not for him or her, " says Cochrane. ThomsonRogers_LT_May7_12.indd 1 www.lawtimesnews.com 12-06-12 3:55 PM " s entitlement to recover writing. " "You will not provide legal advice to them." Instead, give referrals to places such as the local family law information centre, legal aid or a lawyer prepared to work on a limited- scope retainer. "Encourage independent legal advice to be obtained," 2. Don't be condescending. says Cochrane. "Do this at the outset and repeat that encour- agement again and again during the course of the file. " s lack of assis- Legalese isn't your friend when dealing with a self-represented opponent. "Appreciate your audience and who you are speaking with," says Cochrane. "We tend to slip into the not- withstanding, heretofore kind of crap that we don't need to use. Keep it simple. also off limits. "If you put out that kind of a letter, you know it' Rudeness and sarcasm are " 3. Don't sugarcoat the truth for your client. Your client won't like it, but the truth is it' the continuing record or into a brief or accompanying a let- ter to the law society com- plaining about your services," says Cochrane. s going to find its way into going to cost more facing an opponent without a lawyer. "Disclosure may be harder to get, there may have to be more letters prepared and sent, there may be more attendanc- es required, make things worse is to pre- tend otherwise, she notes. "Your client may be balking and asking, 'Why do I have to But the easiest way to " says Cochrane. s pay for something the other side should be doing?' The response should be because it helps advance your case. If you make the judge' 4. Don't forget to laugh. Things are going to get funny when you're dealing with people who "learned their advocacy skills from Ally McBeal and Boston Legal, ier, you will be looked upon more favourably. s job eas- " back and enjoy the ride. A decade ago, Cochrane was in motions court having asked for supervision of a father' Sometimes it's best to sit " says Cochrane. access to his child. The self- represented father respond- ed with a cross motion to have her disbarred. In front of a gallery full of visiting schoolchildren, he submit- ted that Cochrane had vio- lated his rights and that her middle initial, A, "clearly stood for asshole. s into the ground or I could have laughed it off and kept a sense of humour, Cochrane. "I could have dug myself " " says LT PAGE 11 UNMASKING THE MYSTERY. Medical malpractice litigation is one of the most difficult and challenging areas of law. At Thomson, Rogers we enjoy a reputation built on experience and skill in prosecuting these claims. Above all else, our greatest asset is a proven record of success. Contact our Medical Malpractice Litigation Group: Denny Dixon, Richard Halpern, Wendy Moore Johns, Sloan Mandel or Aleks Mladenovic. YOUR ADVANTAGE, in and out of the courtroom. TF: 1.888.223.0448 T: 416.868.3100 W: www.thomsonrogers.com

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