Reasonable Doubt: When representing yourself in court, you can still use lawyers strategically

by Laurel Dietz on July 6th, 2012 at 12:49 PM

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After much consideration and deliberation, I have decided to do a series of articles throughout July and August expanding on my previous article of how to represent yourself.

My first article on June 8 was barely the tip of the iceberg of what you can do to improve your advocacy skills when representing yourself. Comments from readers of that article were largely negative. It seems people take offence at the suggestion they should represent themselves and blame lawyers for any discomfort experienced about doing so.

To that, all I can say is that, in my opinion, everyone should have a lawyer to help them through the legal process and stand up for them in court. That is the ideal situation.

Unfortunately, your government believes less and less in subsidizing legal counsel for those people facing family and criminal law issues—issues that plague the vast majority of our population. This is the Legal Aid Crisis. Lawyers in B.C. fought for legal-aid funding in the '70s and won. This was a positive moment in B.C. history. Having access to effective counsel when you’re facing legal problems can change your life. It means less stress, which means better physical health and an ability to continue to contribute in any number of ways to our society.

Fast-forward 40 years and fewer people than ever are being covered and for fewer legal issues. If this makes you angry, stressed, or anxious, then sit down and write a letter to your MLA. Until the government takes progressive steps in understanding the benefits to ensuring the average person has legal counsel in times of need, there is little choice out there for you except to represent yourself or find the money to pay for a lawyer.

The steps I propose for people representing themselves are not easy. Representing yourself requires an ability to take control of and responsibility for your legal problems, a willingness to research and learn about the law and the art of advocacy, a flexibility to change course if you’re taking the wrong path, and a desire to achieve your goal. This seems like a lot, but it's not impossible.

Tip #1: Use lawyers strategically, rather than wholesale

Representing yourself might be necessary, but you need not navigate legal waters blindly. The first thing to understand is the law is vast and it is constantly changing. Lawyers practice for many years in one area and still cannot proclaim to know everything there is to know about that area. Clients will still walk in their office after they’ve practiced for 20 or 30 years and present them with a problem that they have not previously encountered.

So what is it that lawyers know that you do not? They know how to think logically and critically in a legal context, identify legal issues, understand basic legal principles that can affect the outcome of legal battles, and how to access and use information that will help them understand and solve your problem. On the job, they learn strategy and tactics to deal with other lawyers, to present a case effectively to the judge, and to manage clients.

Sometimes the hardest thing about a case is separating your emotions from the facts in order to diagnose legal problem. Sometimes it is the most straightforward aspect of your case. Either way, it’s the starting point. Once you know what your issues are, you can start researching and figuring out what remedies you can get and how to get them.

If only to diagnose your legal problem and explain finer points of law, however, people that study the law and practice law will always be useful to you—even when you decide to run your own case.

Unfortunately, the common business model for the provision of legal services today is this: 1. You walk into a lawyer’s office. 2. You tell him or her about your troubles. 3. The lawyer indicates he or she can take on your case for $X/hr and will require $X retainer. 4. The lawyer then deals with your entire case occasionally billing for many hours of reviewing legal documents, correspondence with the other side, hours spent in court waiting, et cetera.

But it doesn’t have to be this way. Perhaps you only want the lawyer to tell you where to start, diagnose your legal issue, or to draft a legal document or a clause in a contract. Perhaps you only want some insight into the other side’s strategy and tactics or a lawyer to edit your documents and make sure you’re on the right path.

Evaluate your legal problem. Determine where you need help and the limits of the help that you want. Approach a lawyer and ask for a limited retainer only for that purpose. You do this on the understanding that you are still the person in control of your case and that at then end of the day, you will walk away and decide how to use the information the lawyer has provided you.