How to manage a self-represented litigant at trial

There are two sides to the management of the self-represented party – the manner that s/he is treated by counsel and the appearance of how that party is treated. Both are critical. The former is established well before trial. Counsel must address this in written form before trial by satisfying Rule 2.04(14) and by advising the self-represented party that neither counsel nor the judge will be protecting his/her legal interests in court. The written communication should be shared with the trial judge at the outset of trial so that the court is aware that counsel has indeed discharged his/her duty to the self-represented party and provided him/her with yet another opportunity to retain counsel for trial. By doing so, counsel has now demonstrated to the trial judge that s/he is conducting her/himself ethically and in accordance with theRules. This will go a long way in setting the expectations of every participant in the trial – the lawyer, the self-represented party and the judge. One thing that all represented parties wish to avoid is the weakening of their lawyer’s efficacy because of the self-represented party or the assistance provided to him/her by the trial judge. Typically, where the trial judge observes that counsel is taking advantage of the self-represented party, the judge will step in to assist him/her to ensure that the process if fair. But if the trial judge observes that counsel is providing the self-represented party with some direction and guidance as to procedure, and affording him/her the opportunity to present the case, then often the trial judge will not step in.

In situations involving a procedural mistake or misstatement of the law, the ethical counsel will advise the court of the error. As the Honourable Chief Justice of Ontario Winkler stated in the introduction to The Advocate’s Society’s Principles of Professionalism For Advocates, legal professionalism is “an attitude or an approach that will inform a lawyer in his or her day to day work. Its elements have been described to include scholarship, integrity, honour, leadership, independence, pride, spirit, collegiality, service and balanced commercialism. Professionalism is understood to be at the heart of being an ethical lawyer, and the basis upon which we uphold public confidence in the justice system and meet our obligations to serve the public, defend the rule of law and promote true access to justice.”

Accordingly, counsel is well advised to disclose any error and litigate the case on its merits. In so doing, counsel is following the call to action of the Honourable Chief Justice Winkler by demonstrating integrity and upholding public confidence in the justice system.

But in cases where the self-represented party is purposely using this status to exact an advantage or abuse the process, counsel needs to present the problem to the trial judge and do so on the record. In such cases, just as the trial judge will ensure that the self-represented party is treated fairly, so too the judge will ensure that the same fairness is afforded to the represented party.

This indeed occurred in Radonicich v. Reamey [2008] O.J. No. 2210, where Master Haberman stated:

“If the plaintiff were counsel, he could face Law Society sanction for his conduct. Further, members of the Law Society of Upper Canada are informally bound by a code of civility when they deal with one another and with self-represented litigants. The Principles of Civility, published by the Advocates Society several years back have been cited by several masters (including this one) where counsel had not conducted themselves in accordance with what the Society has advocated.

As these principles take the form of guidelines rather than rules, per se, I see no reason why self-represented litigants should not be expected to conduct themselves in a similar manner when dealing with counsel. These principles are really about mutual respect, something that all parties and counsel who come before this court should be entitled to expect from one another. Membership in the Law Society of Upper Canada should not be a requisite for such an expectation.”

Then at paragraphs 30 and 31, Master Haberman writes:

“For this plaintiff’s enlightenment, I highlight the following statements of principle: 

• Counsel shall be treated with courtesy and civility
• His feeling towards the litigants that counsel represent shall not influence his demeanour when dealing with counsel
• He must be truthful and honest when dealing with counsel
• He shall fulfill or comply with all promises or agreements, whether oral or in writing made to counsel
• He shall consult counsel before scheduling dates for litigation events
• He shall agree to reasonable requests for scheduling changes of extensions of time, and not attach unfair or extraneous conditions to extensions of time
• He shall refrain from taking advantage of or act without fair warning;
• He shall not cause any default or dismissal to be entered without first notifying counsel
• He shall avoid ill-considered or uninformed criticism of the competence, conduct, advice, appearance or charges of counsel
• He shall refrain from attributing bad motives or improper conduct to counsel except when relevant to the issues in the case and well-founded
• He shall avoid making disparaging personal remarks to or about counsel.

The plaintiff shall govern himself according to the above statements of principle in his dealings with counsel and he shall adhere to the requirements and timelines set out earlier in these reasons.”

Trials are complicated and stressful. Figuring out how to manage a self-represented litigant at trial only adds to that. However, there are indeed steps that can be taken to alleviate that stress and allow counsel to focus on their case.

Editorial Note:
This article was originally published in 2015, but its insights remain highly relevant today. As the number of self-represented litigants continues to grow, the legal profession must balance fairness, ethics, and civility. The principles discussed here reflect enduring guidance for maintaining professionalism and managing courtroom dynamics in an increasingly complex environment.

Steve Benmor, B.Sc., LL.B., LL.M. (Family Law), C.S., Cert.F.Med., C.Arb., FDRP PC, is the founder and principal lawyer of Benmor Family Law Group, a boutique matrimonial law firm in downtown Toronto. He is a Certified Specialist in Family Law, a Certified Specialist in Parenting Coordination and was admitted as a Fellow to the prestigious International Academy of Family Lawyers. Steve is regularly retained as a Divorce Mediator/Arbitrator and Parenting Coordinator. Steve uses his 30 years of in-depth knowledge of family law, court-room experience and expert problem-solving skills in Divorce Mediation/Arbitration to help spouses reach fair, fast and cooperative divorce settlements without the financial losses, emotional costs and lengthy delays from divorce court.