How to be your own lawyer (and why it's such a terrible idea)

A well-worn legal proverb states that a litigant who represents himself "has a fool for a client". Perhaps, but it appears that more and more litigants are prepared to take that risk -- and a serious risk it is.

In remarks to the Pro Bono Appreciation breakfast made March 26, 2010, Robert Bauman, Chief Justice of the B.C. Supreme Court, set out the statistics regarding self-represented litigants before the Supreme Court of British Columbia. These included the following for the past four years:

·    in roughly 15% of the trials before the Supreme Court, one of both parties has been self represented;

·    in roughly 21%; of the long chambers matters before the Supreme Court, one or both parties has been self represented, and

·    in roughly 22% of the settlement conferences held, one or both of the parties has been self represented.

Chief Justice Bauman's remarks can be found here.

Make no mistake -- representing oneself is a bad idea. In my experience, the typical in-person litigant simply is not equipped to properly prosecute or defend a case (be it civil, criminal or matrimonial) in the Supreme Court.

The case of American inventor Robert Kearns, who successfully sued a number of auto-makers for patent infringement, in some cases acting as his own lawyer, is the exception. And notwithstanding the Hollywood treatment of his struggles in the movie Flash of Genius, one could argue that Kearns' legal fight on his own behalf was perhaps more a sign of obsession than a search for justice (see more here).

Unlike fictional representations of legal proceedings (most of which come to us from American film or television, and are therefore almost totally inapplicable to Canadian practice), actual litigation involves much more than simply standing up and explaining to the judge how right you are. It involves organization, clarity, and appreciation of basic courtroom procedure. Most cases presented by in-person litigants lack these qualities. Quite apart from these failings, however, most in-person litigants lack the objectivity to recognize what is and what is not relevant to the proceedings. If one cannot speak to the salient facts or law, one has no virtually no chance of persuading a judge to decide the case in one's favour.

In any given case there will be dozens (or more) facts and legal issues. Legal training provides lawyers with a sense of which of those facts and issues are the most important. An experienced lawyer will ensure that the court focuses on the facts and issues that most persuasively convince the court of the rightness of that lawyer's position.

All of this said, however, the single biggest failing of an in-person litigant in my opinion is that person's complete and unfailing belief in the correctness of his or her position. That sort of blind commitments generally leads one to believe that the court will simply ignore whatever facts and law are adduced and find in favour of the in-person litigant. I have seen this delusion punctured with regularity.

Unfortunately, the inability of in-person litigants to appreciate the weaknesses in their legal position cause untold difficulties for the court, lawyers, the other party, and, ultimately, the in-person litigant himself. As noted in a recent matrimonial case by Mr. Justice McKinnon in Supreme Court where the Respondent represented himself (read here):

"Unfortunate is the only word I can find to describe this totally unnecessary trial that required six days of court time and tens of thousands of dollars in legal costs. I hasten to add that this is not a criticism of counsel for the claimant, but rather a sad reflection on the intransigence of the respondent, caused mostly by misconceptions, both legal and factual, that he labours under."

The increase in the number of in-person litigants is perhaps inevitable given current economic conditions and the increasing cost of lawyers. Regardless, a negative result in legal proceedings can be far more costly than the price of a lawyer -- and even a fool can appreciate that.

I wouldn't want Allan Schoenborn ordering a latte next to me at Starbucks

The community outcry over triple-murderer Allan Schoenborn receiving escorted passes into the community by the B.C. Review Board (read the original disposition here: Link 1) appears to have abated as a result of Mr. Schoenborn changing his mind and withdrawing his request for such passes (Link 2).

The real issue, however, is how the Review Board ever concluded that Mr. Schoenborn was a candidate for escorted passes in the first place. The basic facts of Mr. Schoenborn's case are well known. But did the Review Board bother to read the Reasons for Judgment of Mr. Justice Powers in convicting Mr. Schoenborn? The reasons are available here Link 3, and they make for chilling reading.

While Mr. Justice Powers eventually found Mr. Schoenborn NCRMD (Not criminally responsible by reason of mental defect -- arguably one of the most needlessly obscure phrases in the Criminal Code), there were a host of other findings by the judge which surely would have put even the least curious of the Review Board members to oppose any sort of escorted release. These included:

• All of the evidence led to the inevitable conclusion that the killings were planned and deliberate.  Mr. Schoenborn understood what he was doing and intended to cause the children’s death.
  
• Mr. Schoenborn is a person that is extremely self-absorbed and self-centred.
  
• He sees himself as the major part of every event that goes on around him.
  
• He is a man concerned about himself and his feelings more than anything else.
  
• He lacks insight into himself and his illness...[h]e tends to downplay his own mental illness or to disguise it.
  
• [H]e will be almost impossible to treat [and] it will be extremely difficult to treat and know whether his illness is actually under control or whether he is merely suppressing the symptoms.

What is perhaps most disturbing is that these findings were made by the court on February 22, 2010, a mere 14 months ago. Did the members of the Review Board actually believe that Mr. Schoenborn had improved so dramatically in 14 months that he could transition from planned and deliberate murder to ordering a latte amongst members of the public? And if they did believe this, did they believe it enough to be the ones standing in the Starbucks lineup with Mr. Schoenborn?  A man who is "almost impossible to treat" and in whom it is difficult to tell whether he is "actually under control or merely suppressing his symptoms"?

The Review Board in this case didn't have a difficult decision if one went to the trouble of reading Mr. Justice Powers' judgment. Whatever other information the board received, that should have been enough.

Let's hope they consider that the next time Mr. Schoenborn needs a caffeine fix.

Inaugural post

"This is a court of law, young man, not a court of justice." Oliver Wendell Holmes, Jr.

"You can't handle the truth!" Jack Nicholson, A Few Good Men


As a practising lawyer, a significant part of my job involves explaining to clients (and others) the difference between "law" and "justice".

The simple truth is that courts are imperfect institutions run by imperfect individuals. Courts produce results, not justice.


In fact, one could argue (and many do) that our justice system is "broken", producing perverse outcomes more often than logical ones. 

Like democracy, however, it's the best system we've come up with so far. So we appear to be stuck with it.


The purpose of this blog is to investigate and comment upon various cases, legal topics, and even individuals (where warranted). The goal is to scrutinize one of our most important institutions -- the legal system -- and shed light on what really happens in the courtrooms, boardrooms and backrooms. Whether you're a party, a lawyer, or just an interested citizen, how the legal system operates is important to an understanding of that system.



I welcome your comments and suggestions.