Dealing with Self-Represented Parties at the Conference Stage
I try and approach separations in a cost effective manner for my clients. Part of that is identifying if and when litigation is necessary. Further to that, once litigation is commenced, it is my job to develop strategies and produce materials in such a way that puts my client in a position where he or she will have the best possible chance for success.
There are, however, certain obstacles that may present themselves when making an effort to attain a positive result for my clients through litigation in a timely and cost effective manner. One of the most common is self-represented parties.
Whenever one spouse gets a lawyer and the other does not, this – believe it or not – creates some problems for the represented spouse.
- It likely means they will be spending more money on the resolution process, as if there is any substantial drafting to be done, it will almost always be done by their lawyer. It is never a good idea to have a self-represented party draft a Separation Agreement or Consent Order.
- Self-represented parties don’t know the Rules. This may cause a delay in the production of disclosure or increase the amount of time the parties spend while at Court. In extreme cases, it will render certain attendances useless if the unrepresented party did not (before a Case Conference, for example) prepare a Case Conference Brief. What often happens is that self-represented parties come to Court with all of their material and disclosure rather than producing it in advance. This forces the other side to adjourn the matter and return to Court at a later date. While this may come with some cost consequences against the unrepresented party, costs awards are discretionary, and even when they are made they may not fully compensate the represented party.
- Self-represented parties are sometimes shown lenience by a Judge that would not otherwise be afforded to a practicing lawyer.
- The self-represented party is over dramatic. He or she will likely base their materials and oral arguments based on what they see on television or at the movies. In my experience, they go on and on before a Judge trying to talk their way into sympathy or into a positive result.
The best way to handle this and the other problems I have noted is to ensure two things:
- That all communication between a lawyer and the self-represented party is in writing; and
- That all material required by a Rule for a particular Court appearance is prepared on time and in such a manner that will allow the Judge to have a full understanding of your case before anyone even gets to Court. Essentially, the strategy is to let your material do the talking. Chances are that the self-represented party will want to do plenty of actual talking that will almost always dig a deeper hole for him or herself than he/she was already in when they arrived in a case where they did not submit their materials. Conversely, in these types of cases I do not usually have to say that much, and the less I say, the more likely it is that we are having a good day in Court. This may seem counter-intuitive, but if I have been persuasive with the materials, there would not be much left to say.
For the Feldstein Family Law Group, I’m Nick Slinko.