Proctor : July 2018
34 PROCTOR | July 2018 Opposing the self-represented litigant Tips for early career lawyers The ability to properly and effectively manage disputes involving a self-represented litigant (SRL) is beneficial to all parties and assists in resolving disputes before they become too lengthy and costly. There are many ways in which early career lawyers can ease the burden for their senior authors and clients. Assistance available from Queensland Law Society includes ‘Self-represented Litigants: Guidelines for solicitors’, released in November 2017 (the QLS guidelines), and the QLS Ethics Centre’s ‘Guidance Statement No.9 – Dealing with Self- represented Litigants’, released in December 2017 (the guidance statement). Some of the top tips from these publications include: Communication is key Communication is twofold, in that it is key not only with your client but also with the SRL. It is important that your client is conditioned when opposing a SRL. You need to communicate and pre-empt complications which may arise and how they may affect your clients’ case, and their budget. Clients who have never opposed SRLs before may not be aware of the increase in resources and time, and the differing attitude of the courts. This discussion should occur early to avoid any issues along the way. The QLS guidelines and the guidance statement both note that, as a legal practitioner, you need to bear in mind your costs disclosure obligations in accordance with the Legal Profession Act 2007 (Qld), including your obligation to warn of any changes to the cost estimate.1 In practice, it is appropriate and recommended that you update costs estimates, and do so often. A good time is following a directions hearing, or the provision of a pleading. Both these occasions will allow you to provide an updated, accurate cost estimate for your client. In addition, an ‘SRL buffer’ amount included in the estimate may be appropriate when the SRL is unfamiliar with court processes and procedures, or has in the past been difficult to deal with. This will assist in preventing unwanted surprises at billing time. Communication with the SRL is equally important and will assist in minimising issues as your matter progresses. The QLS guidelines and the guidance statement both suggest setting parameters with the SRL early on and, importantly, confirming that: • they are not represented • you act for your client and in their best interests • your communications with them are not confidential and may be communicated to your client and the court (the exception being settlement negotiations), and • they should seek independent legal advice as soon as possible. 2 Ensure that all communications are clear and easily understood to avoid any misconceptions. Tone is also critical in these circumstances, and bear in mind that the usual language and tone you would use with an opposing solicitor may not be appropriate.3 Managing difficult behaviours Most experienced practitioners will be able to tell you a story about dealing with a difficult SRL, and I have personally had my fair share. However, it is all about managing expectations and maintaining strong boundaries. The first step should always be setting strong boundaries in the initial communication (as noted above). Be clear in your role and your obligations to your client. You will often find that the court and the SRL may rely on you to guide the process, however you need to be aware of your obligations to your client and the grey area you may find yourself in if some advice creeps into your communications. If the SRL is particularly difficult, it may be appropriate to establish within your team a communication protocol. This will assist in ensuring that the SRL has a clear line of contact and that communication will not be missed. In some instances the SRL may display some hostility towards you, particularly in court. Bear in mind that you are the face that the SRL sees and therefore may be subject to their frustrations. SRLs have a significant amount of personal interest in their matters and emotions are often running high, not to mention that court is a scary and unfamiliar process for those who have not been exposed to it. Ensure you maintain your professionalism and remember your duty to your client and the court. When possible, it is also beneficial to get the court involved early. For example, the Supreme Court of Queensland has a dedicated supervised case list involving self-represented parties in Brisbane which assists in effectively managing disputes with SRLs. The purpose of the supervised case list involving self-represented parties is to ensure cases are properly prepared for trial, reduce the cost of litigation and minimise the risk and cost of a trial being adjourned. 4 Regular directions hearings can assist in progressing the matter, holding the SRL accountable and avoiding inappropriate or unprofessional behaviour on behalf of the SRL. For more information on the supervised case list involving self-represented parties, consult Practice Direction 10 of 2014. Cement your settlement Reaching a settlement is likely to be the most cost-effective and quickest way to resolve a dispute with a SRL. Settlement negotiations with SRLs can be quite lengthy and it is important you ensure that any settlement is ‘rock solid’ and that any settlement deed can be used to prevent further proceedings against your client.