By André Faust
Most people who choose to self-represent in a court of law, whether it is criminal matter or civil suit do so because of financial constraints, or they don’t meet the eligibility requirement criteria for legal aid. However, for the most part these people are at a disadvantage when they are trying to represent themselves in front of the judge.
Right from the beginning, once they decide to represent themselves the cards are stacked against them. The obvious is the lack of experience working within the legal framework. The other drawback that the person has is the lack of objectivity when trying to defend one’s position in front of the courts.
In New Brunswick the situation is even worse for litigants representing themselves as compared to other regions like Alberta, British Columbia and Ontario where they have the necessary resources to assist the self-represented litigant to effectively represent themselves. Unlike Alberta, British Columbia and Ontario, New Brunswickers representing themselves in a court of law must start at ground zero and develop their knowledge and the skill sets to adequately represent themselves with very little assistance.
For the first timer this process can be very overwhelming and daunting. Given the time frame that the self-representing litigant has to prepare for their hearing there may not be enough time to adequately prepare their case to present to a judge.
There are many pitfalls that the self-representing litigant will encounter throughout the preparation and the delivery of their case. The objective of the game is to avoid any pitfalls that may jeopardize the results that you want.
Self-representation, from a psychological and emotional point of view, is extremely difficult. Self-representation is very stressful; the greater the consequences of the outcome the greater the stress. Another difficulty that self-representing litigants face is divorcing their emotions from the case; failure to do so can have severe consequences because the litigant cannot maintain objectivity and might potentially bias their own case against themselves.
In order for the litigant to maximize the outcome of the trial in their favor, the litigant has to know their case inside out, as well as all procedure and evidentiary matters relating to their case, and that in itself is a tough assignment.
The first and foremost is to determine the strength of your case and whether or not you even have a case at all. After all, it doesn’t make much sense to argue a case where the facts are as such that you cannot win. In this situation not all is lost, because depending on the case the judge may have some latitude on the severity of the sentence; in this case the litigant should have a strategy in place to mitigate the sentencing, meaning to lessen the severity of the sentence.
To increase the chances of having a desirable outcome of the case at the bar there are many things that are required beforehand. Above and beyond knowing the Rules of Court and evidence the litigant has to research all of the relevant laws, case laws as it pertains to their case. If it’s a criminal case the litigant has to know how the prosecutor has prosecuted similar cases in the past, and as well how the judge has previously decided on similar cases.
Judges come in all shapes and sizes, and each judge has a personality that is unique to that judge, and it is important to note beforehand if a judge is reasonable, or if the judge is difficult. As well it is to the advantage of the litigant to know what case law the judge will accept; some judges will accept case law from other provincial jurisdictions, whereas some other judges will reject decisions from other provinces and only accept case law and judgements that are from the province where the case is being tried. Knowing this about judges will help in planning the strategy and arguments that are going to be used at trial.
A common mistake that litigants make when presenting their arguments is to argue with the judge, head -butting with the judge is a no-win situation for the litigant, and it should be avoided at all costs. It is equally important for the litigant to recognize when they are beating a dead horse, arguing a point that the judge has decided upon will only lead to a confrontation and will be detrimental to the objectives of the litigant. The layperson has to realize judges in their respective court room have ultimate authority; they have the last word in their courtroom.
While most judges will treat everyone in the courtroom, including self-representing litigants, with respect and courtesy, there are however judges who for whatever reason can be difficult to have to deal with. If the litigant is well prepared, and did their research into the character of the judges and the prosecutors, the litigant will be in a good position to prevent a bad situation from occurring; being well researched and prepared will allow the SRL (Self Representing Litigant) to apply some damage control should an adverse of situation occur.
It can’t be stressed enough how important it is for the litigant to be courteous and respectful in the courtroom, even though emotionally one might be tempted to do the opposite. If this SRL suspects that the judge is aversive it thus becomes even more important to speak clearly so that the clerk can put the litigants’ response on record. The significance of this is that the context of the court hearing will be on record and be available to the litigant in the event that there is an appeal.
To summarize: to be effective the self-representing litigant has to be ready to cope with the stresses and anxiety created by defending oneself in a formal courtroom environment. The SRL also has to be fully prepared and understand the case that is going to be argued. The litigant should anticipate the crown’s arguments and have the rebuttals in place. Being organized and having all your documentation prepared in sequence of the presentation will add to the litigants’ credibility and prevent confusion. Avoid confrontation and head-butting with the judge; always maintain professional, courteous and respectful conduct with all in the court, including adversarial witnesses.
The courtroom is a very formal environment. It has strict rules of conduct and dress; regardless of whether or not one agrees with it, that is reality and one has to work within that framework. When preparing the case to be argued, if at all possible try to discuss it with someone in the legal community. If worse comes to worse you can consult with duty counsel about the law surrounding your case.
It is unfortunate that in the province of New Brunswick there are no resources to help and guide the SRL with their legal arguments and they are often left to the mercy of the courts. Being prepared, having a strategy and contingencies in place will stack the cards in favor of the litigant. Remember to be prepared for the unexpected.