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.
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