There is an old saying. Maybe you have heard it. A person that represents themselves in Court has a fool for a lawyer.
There must be some truth to this. A recent study of the Supreme Court of Canada found that out of about 700 applications for leave to appeal by self represented applicants over six years not a single one was successful.
With the increasing cost of lawyers and of the access to justice many people who cannot afford lawyers, or who believe that they can do a better job themselves, try to be their own lawyer in court. Like the study of the Supreme Court of Canada it is extremely rare for things to end well for a self represented litigant. I’m sure it happens – but not often.
Perhaps the most difficult challenge for self represented parties is to establish credibility with the judge. The assumption of course is that everything a self represented person says will be biased towards their own interests. Most people assume that when a lawyer goes to court their job is to present their client’s strongest case and to do this everything that the lawyer says must be slanted towards their client’s best interest.
Unfortunately it’s a little more complicated than that. The job of a lawyer that goes to court is of course to present their client’s strongest case. That is not the issue. The challenge is how to present the clients strongest case in a way that will persuade the judge and or jury to decide in the client’s favor. The lawyer’s job is not so much to argue or defend. The lawyer’s job is to persuade.
Persuading a judge or jury of your client’s claim is pretty much the same as persuading your spouse, or your friend, or your business colleague that your way is the better way. It’s not much different. And the first step is getting the judge or jury or the other person to listen. If they don’t listen, you can talk until you are blue in the face, it won’t make any difference. And secondly, the judge or jury – just like anybody else – has to believe that you are not trying to fool them. The judge or jury has to believe that you are being truthful and fair in what you say. In other words – a lawyer needs to be objective. If the judge or jury believes that you are just a mouth piece for your client and will say anything that your client wants you to say then chances are you have a lost.
And this is probably the biggest reason self represented people often fail. They are perceived as completely biased.