Do’s and Don’t’s for Self Representing in Court

Do's & Don't's of self representing
image source from unsplash by Didier Weemaels

Ideally, we would hire the best lawyer in town to handle our divorce proceedings. That’s not reality, however. The fact of the matter is very few of us can afford a top lawyer, and even many more can barely afford a bottom of the heap lawyer (not that we would recognize that until we’re half way through).

The sad truth about our divorce law is, it isn’t keeping up with the digital age and does nothing to rectify an economic divide when it comes to legal services.

“I have been a divorce lawyer for 20 years and the last time Canada’s Divorce Act was changed was in 1986, pre-dating the internet. In other words, Family Law in Canada operates as if the internet didn’t happen.”-Andrew Feldstein

That may be slowly changing though I’ll expand on that in a moment.

The question becomes should we spend our children’s education fund or our very last penny in our savings account on a lawyer? What choice do we have and how can we mitigate our financial losses during divorce.

Mitigating Financial Loss

The short answer is no and yes, we have choices and options to mitigate our financial losses. In fact, things are changing gradually in the legal system since I last wrote tips for self representing, whereby many ‘lay persons’ are taking control of  their own divorce proceedings. The question is, how are they doing it? There’s legal aid but very few are eligible for that causing a huge gap between legal financial aid and personal affordability of a lawyer. What has been filling that gap are law firms that offer ‘unbundled services’ or limited scope retainers for their clients.

“The term “limited scope retainer” means the provision of legal services by a lawyer for part, but not all, of a client’s legal matter by agreement between the lawyer and the client. Another expression is often used is “unbundled services”.-Self Rep Navigators

This fairly new concept allows a client to utilize a lawyer for consulting on difficult court proceedings, preparing documents and proofing legal arguments that you may want to present. This is a great service in that, as a client, you are able to handle many of the basic filings and court room self represent for the simpler aspects of your case while still consulting and ensuring your work is done to legal requirements. It’s the best of both worlds. It allows for more people like us, to self represent to our ability and therefore save tens of thousands of dollars personally. The additional goal is to avoid costly errors in the courts that are often caused by self represented litigants (SRLs) that are navigating the system alone.

So, if you choose to utilize a limited scope retainer, here’s a quick and dirty list of Do’s and Don’ts for Self Representing in your divorce;

Do’s

know your subject thoroughly-Is it child support you’re going to court to get an order for? Know as much as you can about you local/Provincial/State child support laws before writing your first draft. If it’s alimony or spousal support you’re after, understand the intricacies of these awards. They are not as cut and dried as child support for example.

Collect and include your evidence-this sounds obvious but many people go to court to ask for child custody and make complaints against the other parent without proper evidence. Without proper documentation, your word cannot be taken as fact.

Go to court and observe (multiple times) how lawyers and other laypersons address and speak in the court- take notes. What do judges dislike when someone is addressing them? I can tell you they don’t like when you don’t speak up. They don’t like it when you’re not clear on what you’re asking for. They don’t like it when they ask you a question and you cannot formulate an answer. But if you have done your homework, this won’t happen.

Be prepared to respond to the opposing lawyer-this means you really have to pay attention to what they’re arguing and make a mental note of how you would like to reply or disagree with their arguments about why you don’t deserve disclosure, child support, alimony (or whatever it is you’re there to get). Typically, you will receive in writing, the opposing lawyer’s ‘petition response’ before your court appearance, which will give you an idea of how they are going to argue against you and therefore allow you to anticipate your reply.

Know when you’re over your head-Get legal advice prior to attending court to ensure you understand the legal intricacies of your arguments. I can’t emphasize enough that going to court can be simple or it can be complex depending on the topic or purpose of your case.

Set a trial date. Even if you believe your case may not require a trial, it is important to have a date looming to bring a conclusion to your divorce. It will hasten the negotiations and settlement on both sides.

Be aware of your ex’s lawyer’s strategy. In my experience very few lawyers will utilize a sneaky ‘delay’ strategy. But if your ex’s lawyer is doing this his end game may be to keep his client (your ex) out of the court to avoid binding them to a court order. One of the games the lawyer will play is to ignore your communications until weeks have passed. Later, they may use the passage of time against you in court…like I said, very few lawyers actually use this type of dirty strategy, but as a self represented litigant, you must be aware if it’s happening. To mitigate this vulnerability, you must communicate almost daily to garner responses and secure dates.

Don’ts

File court documents haphazardly-documents have to be filed to the letter of the law. There is no room for error when it comes to filing and this is where your limited scope lawyer can help you. Have them review your documents to ensure all is complete. Your affidavit will be sworn and signed at the time of filing. This will cost a nominal filing fee.

Attend court unprepared-this is obvious but what can happen is you have a date and you are not prepared simply because you didn’t have time. You feel pressure to get it done. Ask for a continuance instead of attending unprepared.

Fail to communicate with the opposing lawyer and your limited scope lawyer-try to respond to every email and question the lawyers have for you. If you are not sure how to respond to the opposing lawyer’s query consult your lawyer first.

Disparage your ex unnecessarily-the judge gets it. You’re frustrated. By the time you get to court, you’ve had to work hard at negotiations that have likely failed. Your divorce is a process that naturally incites anger. Fair enough. That’s still no excuse to go off the rails of legal arguments and personally attack your ex in court.

Make false statements in court or in your sworn court documents-if you’re not sure, then don’t state it as a fact.

In sum, anyone willing to self educate and put effort in, will have a fair chance at success as a self represented litigant (SRL). Since limited scope retainers are becoming more commonplace, learning how they can benefit you as a SRL, is a good place to start. Understanding your risks and responsibilities while self representing will also reinforce your ability to attain legal orders and resolve divorce disputes.

Most of us do not want to self represent. However very few of us are in a financial position to fully retain a lawyer who will be charging us $100 every time they touch our file. Enter, unbundled legal services.

The trick is, knowing when we require legal advice, seeking it, understanding the value of our lawyer while maintaining some autonomy in the legal system. This is a balancing act we can all learn and get results from. Remember to review the quick and dirty do’s and don’ts before entering court. Plus, check out my handy sample affidavit for assistance in writing your own either for child support or for spousal/alimony support.

Further reading:

Canadian Divorce Law basics from the Department of Justice

U.S. family law basics from the Department of State

Self Represented Litigants from a lawyer’s perspective 

Why Canadian Divorce Laws are not keeping with the changing times 

Don’t miss my previous post explaining why divorce legal proceedings are a river raft ride plus more tips for self representing

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28 Replies to “Do’s and Don’t’s for Self Representing in Court”

    1. Thanks you, Tamara. I always appreciate shares 🙂 I’m sure you won’t find yourself in this kind of situation. Still, good to know for other legal things that crop up in life.

  1. you are so very, very clever!! i have recently had the misfortune to incur huge bills from an estate lawyer. my aunt passed away and named me as residual beneficiary. it was a lovely thought but has left me with nothing but bill and a mink coat!

    1. Hi Beverly, oh my gosh! Does the mink fit? 😛 I’ve heard so many nightmare stories of people being trustee’s of estates and the headaches and red tape involved is overwhelming. I’m not sure these tips would be applied to that because typically, don’t find ourselves in court for estate things (depending). Dealing with lawyers is a whole other side of legal events that require skill/experience as well. Reviewing their bills can take hours, just to be sure there are no errors. Agh! Thanks for stopping by!

  2. Great advice, Lisa!!

    One comment I’d like to add–remember anything that you file at court, especially if you’re bringing in exhibits/evidence–MUST be served to the other party. There are rules regarding giving notice, providing copies, etc. to the other party and if there’s no proof that you’ve given the documents to the other side, then that can delay your hearing(s). This is a good thing–the other side must provide their filings/evidence to you as well. It can be a pain in the butt sometimes to serve the other party or prove that you sent the information, but at the end of the day, it’s to ensure that everyone has had a fair opportunity to look at what’s being presented in court.

    xoxoxo
    Jane Thrive recently posted…Oh Tween, My Tween!My Profile

    1. Yes, thanks for that reminder, Jane! Those are the rules of court that have to be followed to a T. Rules can be found on line but certainly if you have a lawyer on a limited scope, they can advise on the exact days notice. Typically it’s 8 days notice and that means serving with all the documents (affidavits (including exhibits) and the petition itself). Always better to serve the opposing party or their lawyer with longer notice to be safe. Thanks for sharing your experience and valuable tips!

  3. My divorce was pretty straightforward on paper, despite all of the strife involved. At one point, we’d considering using online documentation self-service filing, but then decided not to. I can see how it’s a good option for some couples though.
    Jeri recently posted…#AuthorInterview: AK TurnerMy Profile

    1. Hi Jeri, that’s awesome that the legal part of it was simple. It doesn’t take away the emotional toll yet it does ease some of the financial strain. On-line filing is a great option for couples who are dividing assets and agreeing on support or maybe there are no children…in the end though, having a lawyer review any agreement before signing it is always wise.

  4. I cannot imagine the amount of red tape involved with the judicial system and divorce….not to mention the expense. It’s a good thing though that you are sharing your knowledge for others going through something similar—they will find this info handy.

    1. Yes, it really stinks. My knowledge was gained by making mistakes and hope others will benefit from these tips. Thanks, Marcia for stopping over 🙂

  5. It sounds like there is a lot one needs to know when it comes to self-representing in court. I like the point of making sure you are prepared with evidence – because evidence speaks the truth and you will be able to present more confidently in the court room.

    The point about not slagging off your ex-partner is also a wise one. Already preparing and coming to court is an emotional time and focusing on emotions, we may forget about what really happened – and having rational head helps with arguing for your case and you feel more in control, more convincing. Great write up, Lisa and thank you for sharing 🙂
    Mabel Kwong recently posted…5 Challenges Of Being A Non-Fiction Writer, Blogger And Published Book AuthorMy Profile

    1. Hi Mabel, indeed our emotions get the better of us and that’s why it is hard to self rep. Necessity is causing more people to self represent so it’s important to understand both the pitfalls and benefits (which I have learned from being dumb :))

  6. Our close friends went through a very nasty divorce. He considered going at it by himself but we encouraged him to get a lawyer because she was very sneaky (I mean she stole his beer fridge with a massive hockey decal on it and she HATED hockey!). So he eventually got a lawyer. It was still brutal but at least he had his tail end covered.
    Good tips Lisa!
    Kimberly recently posted…Washed Away: From Darkness To LightMy Profile

    1. Oh, my gosh. Isn’t it ridiculous the things people do when they’re angry. She knew that was meaningful to him, so she took it. Some of the regrets women I’ve spoken with have, is they left personal items behind. They may not be valuable but they’re sentimental. You’re right to advise a lawyer to your friend. I think that’s best. It’s only with extended litigation where funds are low that a person should take a look at what they can handle themselves. Of course, any legal agreement must be reviewed by a lawyer. Thanks for sharing Kim. Hope your friends are finding closure.

  7. INCREDIBLE advice, Lisa. Seriously, you are doing such a service for so many women going through these hardships… I’ve seen someone go in and out of courtrooms and the representation is always so unbelievably expensive, so it’s great to have these material for anyone who is considering self representation. Thank you for sharing!
    Charlotte recently posted…March goalsMy Profile

    1. Thanks, Charlotte! I hope this helps! I’ve learned the hard way, LOL but there are some things that CAN be done as SRL. Thanks for stopping by!

  8. Yeah!! I think that this is very essential for all of them who are going to divorce. I am very much happy for that because my Aunt wants to divorce and she needs a lawyer who can support her better. Finally, I got it and very much happy for that………..

    1. Thank you, Cori 🙂 I’m sure you won’t have to deal with this as most do not. It’s important to stay objective but not easy during divorce.

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