9 Tips for dealing with an Abusive Lawyer: Advice for self-represented litigants, Part 4

Abusive Lawyers vs. Self-Represented Litigants

Today, a reader told me yet another tale of an abusive lawyer and a court that refused to do anything about it. The judge advised the self-represented litigant that court involves “a certain amount of rough and tumble” and they should “get used to it.”

Indeed, that ‘rough and tumble’ against self-represented litigants can involve almost anything when courts let lawyers go over the line. And judges do let abusive lawyers get away with it – every day.

One lesson self-represented persons soon learn is that the respect and courtesy so evident between opposing lawyers, in and out of court, immediately vanishes when a non-lawyer sets foot onto the sacred turf of the legal brotherhood.

Every person who has been a self-represented litigant (SRL) in anything more than a minor civil claim or traffic court knows exactly what I am talking about. Lawyers view self-reps as ‘easy pickin’s’ because, well, we are. Self-represented persons often describe how lawyers deliberately use shows of anger, personal space invasion, belittling comments and sarcasm to intimidate and confuse, both in and out of court.

Summary Judgments as a legal strategy against Self-Represented Persons

Even worse, many lawyer-bullies use their status and credibility as officers of the court and their legal knowledge to deliberately ‘set-up’ self-represented persons in a long-term litigation strategy designed to obtain a Summary Judgment and dismiss the case before trial.

As part of their technique, these abusive lawyers deliberately overwhelm self-reps with a tsunami of emailed communications, always wait to the last minute to serve motions, and use a hundred practiced devices to bully SRLs into becoming ineffective or – much better for the lawyer – goad the SRL into foolish acts of aggression or non-compliance with required legal procedures.

In the court hallways where there is no record, some lawyers aggressively demand unrealistic procedural concessions or case schedules that are designed to place self-reps at a disadvantage. Some lawyers deliberately misrepresent these hallway conversations to the court.

Some unethical lawyers falsely claim to the court that they sent letters or even served documents via courier when it never happened. They then petition the court that the self-represented litigant is irresponsible or vexatious in not responding to the “very reasonable, courteous communications” of the lawyer. Professor Julie Macfarlane and her colleagues at the National Self-Represented Litigants Project found shocking results in their studies of Summary Judgments against self-reps.

Don’t let it happen to you.

Here are 9 Tips for dealing with an Abusive Lawyer 

1. Always remain calm. Lawyer-bullies try to provoke self-represented litigants into inappropriate behaviour and into making inappropriate statements both in and out of the courtroom, on the record and off. Don’t be driven by emotion; the lawyer-bullies aren’t, no matter how angry or threatening they sound. As Michael Corleone says in The Godfather, “It’s not personal. It’s strictly business.” Know their game and be prepared. 

2. Never raise your voice. Speak in a normal tone no matter what the lawyer-bully does.

3. Watch your body language. When aggressively confronted, keep your hands still on the table or, if standing, at your side or clasped behind your back. If appropriate and necessary, back away slowly. Let your body language show everyone exactly who is the aggressor.

4. Be very wary of speaking to opposing lawyers off the record in the courtroom, in the hallway, by telephone or anywhere. Ask that any communication be in writing so there will be no misunderstanding.

5. Answer all received communications as soon as possible, and especially so if there is any inaccuracy or misrepresentation. If you receive an inaccurate fax, letter or email, immediately answer in writing with your position and supporting facts. Unanswered inaccurate letters from the other side can become ‘exhibits’ and ‘evidence’ against you faster than you can imagine. Lawyer-bullies deliberately write inaccurate and misrepresenting letters to self-represented litigants with the intention of placing the communications before the court as ‘evidence’ in the future.

6. Immediately document your off-the-record conversations with opposing lawyers. Unintentional misunderstandings can happen. Write things down immediately, even in a notebook while talking. Have a witness, perhaps a ‘McKenzie Friend’ with you if possible. Have your witness read and sign your notes in agreement. Some lawyer-bullies will lie to the court or misrepresent what you said or ‘agreed to’. Your personal notes, and better, letters to the opposing lawyers saying “As we agreed to this morning…” are your documented record of events. Put the truth into the communication record in a timely manner and do it without fail on every occasion.

7. Secretly Record your conversations with opposing lawyers. ONLY where and when the law permits it, secretly record your conversations with opposing lawyers. Digital voice recordings are your best friend. When permitted in law, turn on the recorder, put it in your pocket and leave it on anytime you will be interacting with opposing lawyers. Today’s technology is cheap, small and will continuously record for the entire day. Why not have a reliable and independent witness with you anytime the law says you can?

8. Put it on the court record. Whether being cross-examined in court or in a boardroom, if a lawyer bullies you in a manner that will not be evident on the written transcript, comment on that specific behaviour to put it on the record. “Sir. Please do not throw books at me.”  “Sir, please do not shout at me.” “Please do not slam your fist into the table.” “Sir, your face is only 6 inches from mine. Please respect my personal space.” “Sir, Please calm down and do not use such language. I am intimidated by your anger.”

9. Be aware that your online and social media presence can be used against you. If you speak about your case, the opposition or an opposing lawyer on Facebook, Twitter or anywhere online, be aware that lawyers can present selected parts of your words to the court, out of context, to make you appear vexatious. It is not unknown for legal personnel to anonymously engage self-represented litigants on social media with the intent of goading them into improper statements about their case. This can be a part of a strategy to obtain a summary judgment. Perhaps you think that no law firm would ever engage litigants or their witnesses in anonymous social media conversations? Think again.

‘Tips for dealing with a Lawyer-Bully’ first made its appearance in my post LSUC Bencher Joseph Groia “Lawyer-bullies prey on the weak and inexperienced”.

Have a tip to add to the list? Write to me: info (at) donaldbest.ca