Insurers may want to “try hardest” to settle claims with self-represented litigants: judge

Given the additional time, effort and expense required to try cases involving self-represented litigants, insurers might want to give special consideration to settling these cases early, a Nova Scotia judge observed at the Canadian Defence Lawyers 7th Annual Insurance Symposium held in Toronto on Mar. 4.
“There’s not always going to be a good experience [in cases involving self-represented litigants], no matter what you can do,” said Nova Scotia Supreme Court Trial Division Justice John D. Murphy. “The difficulties that arise can be very hard to predict. There may be a lot of ill will, frustration and expense for your [insurance] client.
“We always like to see you in court, but the cases that you may want to try hardest to settle are those where there is a self-represented litigant on the other side.”
Murphy spoke at the CDL judges’ panel, which included trial judges from B.C., Ontario, Quebec and Nova Scotia. The panel considered a range of civility issues facing the bar, including lawyers filing affidavits on substantive issues on a client’s behalf (which in many cases cancels solicitor-client privilege), assessing costs for unreasonable court conduct and self-represented litigants.
Judges on the panel all noted the number of self-represented litigants in Canadian courts is increasing. Ontario Superior Court Justice David Brown noted self-represented litigants are estimated to be involved in 25% of the Ontario’s civil cases, and in a much higher percentage [up to 50%] of family law cases.
“We can’t handle that,” Brown said. “The system is not designed to manage that large of a volume of litigation with parties who really don’t know what they are doing.”
Litigants may go without representation on a point of principle, or because they cannot afford a lawyer, Murphy observed.
One major frustration within the bar may be that while the legal profession’s Rules of Civility apply to trial lawyers, they do not apply to self-represented litigants.
“So you may feel the playing field is not level, and in some ways it is not,” Murphy said. “Because an unrepresented litigant is not an officer of the court or bound by professional confidentiality rules, you may want to ask the court to take steps to make an order that materials will not be disclosed outside the process.”
Murphy appealed to counsel to be patient with the courts when dealing with claims involving self-represented litigants.
Judges have to spend a lot of time explaining the process to self-represented litigants, as well as making them aware of their procedural rights, Murphy said. He asked defence counsel to remind their [insurance] clients that this does not mean judges are showing favoritism toward or adopting the position of the self-represented litigant.
Murphy recommended getting everything in writing from a self-represented litigant. Brown added that courts may wish to consider hybrid trials – featuring a combination of written and oral trial submissions – so that when the oral or written skills of a self-represented litigant falter, they can fall back on a different means to deliver their arguments at trial.
Murphy said using humour or sarcasm with self-represented litigants will almost always backfire, and thus shouldn’t be attempted. Also, attempts to characterize or summarize the arguments of self-represented litigants can inflame the passions of self-represented litigants, thus causing the focus of the proceedings to meander, resulting in additional time and expense for the insurer.