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Self-represented parties should do their homework

2019-08-29

Jonathan Miller HeadShot

People planning to represent themselves in court should take the time to learn about the process and their obligations — and opposing legal counsel should also assist as much as possible in those circumstances, says Toronto litigator Jonathan Miller.

“Some people can’t afford to hire a lawyer, yet still don’t qualify for legal aid, so they often decide to represent themselves,” says Miller, an associate with the Toronto office of Shibley Righton LLP. “But if they don’t have experience with the legal system, these people don’t know what they don’t know.”

He points to a recent case where a self-represented litigant presented what he thought was sound reasoning to the court.

“The judge listened, then called them ‘organized, pseudo-legal commercial arguments,’” Miller tells AdvocateDaily.com. “He said the reasoning might have sounded good to a layperson, but there was really no legal basis for the argument he was making, so he lost the case.”

He says legal counsel who find themselves facing a self-represented litigant have a duty to give that person every opportunity to have their case heard.

“Lawyers have a responsibility to deal with other parties and the court in a way that upholds the integrity of the system,” Miller says. “However, there is a fine line between being helpful to a self-represented litigant and crossing the line by giving legal advice or saying something that is potentially harmful to your own client’s case.”

He says one way he has helped people navigate the judicial system is to remind them of the 30-day deadline for court filings.

“That is something that I can do to help the person and maintain the integrity of the system, without being offside of my obligations to my client,” Miller says.

Most self-represented cases are in small claims court, he says, which is designed to facilitate that form of representation much more than the Superior Court system.

“I’ve seen some people defend themselves who were very knowledgeable in the law and the processes they were involved in, but I’ve also seen many examples at the opposite end, where people really have no sense of how the process works and what their obligations are,” Miller says.

He recommends that people who can’t afford legal counsel to represent them in court should at least consult a lawyer or paralegal about the process they are about to undertake.

Some lawyers give free consultations, Miller says, though that can also pose a problem.

“It can be difficult to give advice without getting into a kind of client/lawyer relationship, which could pose problems if that advice is misconstrued,” he says.

 

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2019-08-29