Category: Access to Justice

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

Abusive Lawyers vs. Self-Represented Litigants

by Donald Best, former Sergeant, Detective, Toronto Police

by Donald Best, former Sergeant, Detective, Toronto Police

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.

Julie Macfarlane, National Self-Represented Litigants Project

Julie Macfarlane, National Self-Represented Litigants Project

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.  Read more

Affidavit filed in action against Canadian Judicial Council, Justice J. Bryan Shaughnessy

Superior Court Justice J. Bryan Shaughnessy

Superior Court Justice J. Bryan Shaughnessy

by Donald Best, former Sergeant, Detective, Toronto Police

by Donald Best, former Sergeant, Detective, Toronto Police

In the next few days I’ll be establishing a separate page devoted to my current Application for a Federal Court Judicial Review of the decision of the Canadian Judicial Council regarding my complaint about the misconduct of Justice J. Bryan Shaughnessy on May 3, 2013.

(Whew! Sometimes it takes a run-on sentence to accurately describe a lawsuit.)

Meanwhile, my lawyer Paul Slansky has filed on my behalf a supporting affidavit sworn by me on April 27, 2016.

You can download the affidavit in two PDF files: Vol 1 (10.4mb) and Vol 2 (11.7mb)

A senior Ontario lawyer examined the complaint and the evidence, and stated…

“In all my years of practicing law, this is the most disgusting thing I have ever seen a judge do.” 

Senior Ontario lawyer writes to Donald Best after examining the evidence against Justice J. Bryan Shaughnessy.

Background

March 31, 2016: Canadian Judicial Council refuses investigation of Justice J. Bryan Shaughnessy. CJC says “No misconduct”

Feb. 9, 2016: Judge J. Bryan Shaughnessy under investigation by Canadian Judicial Council

Dec. 2, 2015: Ontario Superior Court Justice J. Bryan Shaughnessy secretly increased prisoner’s jail sentence; in a backroom meeting, off the court record, without informing the prisoner.

March 9, 2016: Canadian Judicial Council remains silent on investigation of Justice J. Bryan Shaughnessy

 

Donald Best honoured to have work referenced by National Self-Represented Litigants Project

by Donald Best, former Sergeant, Detective, Toronto Police

by Donald Best, former Sergeant, Detective, Toronto Police

I was surprised, delighted and honoured to discover that the National Self-Represented Litigants Project’s latest publication references my article Advice for self-represented litigants, Part 1: Walking away is sometimes the best decision.

The NSRLP updated edition of ‘Access to Justice Annotated Bibliography’ is a resource for law students, researchers and SRLs themselves.

Here is an excerpt from the NSRLP’s article Updated Edition of our Access to Justice Annotated Bibliography and a link to download the Bibliography…

Updated Edition of our Access to Justice Annotated Bibliography

We are proud to announce the latest – Version 4 – edition of our Access to Justice Annotated Bibliography. Designed as a resource for students, researchers and SRLs themselves, the NSRLP Access to Justice Annotated Bibliography is now over 50 pages and includes almost 100 summaries in 3 sections (Canada, US and the rest of the world).

biblio

We are constantly pruning and adding to keep the Bibliography as current and as useful as possible (we welcome all your suggestions for items to include). We are gratified to see more academic writing being done on this topic area than when the Bibliography was first launched in 2013, as well as wider coverage in news reports, both on-line and print, for us to choose from.

Important upgrade: this latest version of the bibliography includes hyperlinks (just hover over the title) for every source that has an on-line location. We hope that this will greatly improve the usability and accessibility of this resource.

The Access to Justice Annotated Bibliography is offered as a free downloadable community resource, and we shall continue to update and revise this at regular intervals to keep it up-to-date.

Ontario lawyer despairs that the legal profession places Privilege over Public Interest

Julie Macfarlane, National Self-Represented Litigants Project

Julie Macfarlane, National Self-Represented Litigants Project

by Donald Best, former Sergeant, Detective, Toronto Police

by Donald Best, former Sergeant, Detective, Toronto Police

As usual, Julie Macfarlane doesn’t hesitate to speak the truths that many in the legal profession find so difficult to acknowledge in public, or even admit to themselves.

Her latest piece is superb and well worth your time, especially if you are a lawyer or a judge. The article should be required reading in every law school in the country.

For me, the one issue in Julie’s article that stands out above everything is how the legal profession, including the Law Society of Upper Canada, usually places privilege over public interest. Lawyers and former lawyers (called ‘judges’) most often choose to protect their own even at the expense of the public interest and the public trust.

Notwithstanding that the vast majority of lawyers and judges are hard-working, ethical, and decent people, the current culture of the legal profession punishes members who dare to report or even acknowledge specific professional misconduct by other lawyers. The standard in the profession is that it is permissible to talk about ethics and misconduct generally, but woe unto the lawyer or judge who points a finger. In many ways this is very similar to the protectionist culture found in policing organizations.

Those in the legal profession who won’t circle the wagons and stand with ‘the Club’ soon find themselves standing alone, with no referrals and few lunch invitations at best. At worst, they are squeezed out of their firms, find their careers diminished and themselves under attack.

As Julie Macfarlane says,

“It’s not the people in the legal profession who are the problem.

It’s what the profession has become.”

Julie Macfarlane: Why I Sometimes feel Despair about the Profession I Love

Canadians are well aware of what the legal profession has become, just as they are well aware of the legal profession’s pretensions of public interest. Ordinary Canadians get it – they just lack the power and capability to do anything about a profession that is entirely self-regulating and accountable only unto itself.   Read more

Advice for self-represented litigants, Part 3: LSUC Bencher Joseph Groia “Lawyer-bullies prey on the weak and inexperienced”

Lawyers Gerry Ranking and Lorne Silver-private

Lawyers Gerald Ranking (left) & Lorne Silver. Strategies for cross-examination of self-represented litigant included screaming, yelling foul words and throwing objects at the witness. (as indicated in transcripts of cross-examination with the Judge not present. The lawyers later apologized to the court, but not to the self-represented litigant.)

The Legal Profession’s culture of bullying

Law Society of Upper Canada bencher Joseph Groia and BC lawyer Gerry Laarakker are two of the high profile people weighing in with comments on law professor Adam Dodek’s excellent article: Ending Bullying in the Legal Profession.

In January 2012, the Law Society of British Columbia found Laarakker guilty of misconduct for not being polite to a bullying Ontario lawyer. Laarakker had to pay $4,500 in fines and costs. The Ontario lawyer-bully walked free because the legal profession has a culture of bullying that law societies tolerate and even support through attacks on lawyers who stand against the practice.

According to lawyer Katarina Germani of Clyde & Co. LLP in Toronto, “(lawyer-bully) behaviour is so often normalized by the profession.”

And as Chris Budgell comments, bullying by lawyers is a problem in the courts, not just within law firms.

Self-represented litigants need to be aware of lawyer-bullies

There is a sometimes difficult to define line between a lawyer diligently representing their client – and engaging in bullying. Although there are contrary opinions I’m sure, I believe that most judges and most lawyers dealing with self-represented litigants try to be fair – if for no other reason than to avoid appeals and complaints.

But, as LSUC bencher Joseph Groia points out, some lawyers are bullies who attempt to prey on the weak and inexperienced. That description certainly includes self-represented litigants.

In my own case, during a January 2013, cross-examination where the judge was not present, senior counsel Lorne S. Silver of Cassels Brock & Blackwell yelled, screamed foul language at the top of his voice and threw objects at me. All this is supported in the transcripts. Co-counsel Gerald Ranking of Fasken Martineau DuMoulin LLP later apologized to the court (but not to me), for the disgusting behaviour, of which Mr. Ranking played his own part during the same cross-examination.  Read more

Justice system rules and practices unfairly place self-represented litigants at tremendous disadvantage

courtroom-private

The deck is already stacked against self-represented litigants. Prohibiting the use of an assistant in court further ensures that self-represented litigants will lose.

by Donald Best, former Sergeant, Detective, Toronto Police

by Donald Best, former Sergeant, Detective, Toronto Police

Self-represented litigants often face a phalanx of lawyers in court; with each lawyer having their own junior to take notes and assist with exhibits and case management during the hearing.

In contrast to the latitude and even deference extended to their fellow legal professionals, most judges prohibit self-represented litigants from having an assistant or non-lawyer advisor in court. This systemic favouritism places self-represented litigants at serious disadvantage even when arguing relatively simple cases, but is devastating in more complex cases where there might be dozens or even hundreds of documents and other exhibits in play.

In my company’s civil case (Nelson Barbados Group Ltd. vs Cox et al), the defending lawyers filed tens of thousands of pages of documents as exhibits. As a self-represented litigant during my Contempt of Court hearing, I had to appear before the court alone and attempt to make my own notes as I simultaneously hunted through boxes for reply documents and exhibits.

The opposing lawyers, Gerald Ranking and Lorne Silver, made team notes and took turns handling the exhibits as the other addressed the court. Occasionally there would also be junior lawyers taking notes. The lawyers refused me permission to make recordings, so I was left waiting sometimes weeks for transcripts before I had accurate notes of what had transpired in court or at examinations.

This type of systemic bias by the justice system and courts against self-represented persons is simply unacceptable in an age where so many citizens cannot afford legal representation. Access to Justice is a human rights issue. It’s time that the legal profession acknowledged the systemic bias against self-represented persons.

Dr. Julie Macfarlane of the National Self-Represented Litigants Project just posted an excellent article about self-represented litigants being forced to appear alone in court. Well worth your time:

The Loneliness of the Self-Represented Litigant

When her case was called, Maria (not her real name) walked towards the front table in the courtroom and, anxiously shifting her papers, asked the judge if she could have her sister sit with her during the hearing. She explained that she could not take notes and listen to what was being said at the same time, and her sister could help her by taking notes for her. Maria said that she had become so overwhelmed the last time she appeared in court that she had started to cry, and felt humiliated getting so upset in public, in front of the people watching in the courtroom. If her sister could sit beside her, it would help her to stay calm and centred.

The judge said no. You have to make your own case, or go and get a lawyer.

But my sister would not speak, she would just take notes, Maria tried to explain.

The judge told her to stop talking and sit down.

Continue reading The Loneliness of the Self-Represented Litigant

Guest Column: How one self-represented litigant lost in court, but won the larger battle

blind-justice canada-private

Reader ‘John” reminds us that ‘Justice’ can sometimes be won outside of court

I have seen one self represented litigant actually win, but in the court of public opinion after the case was tossed for a technicality in filing.

In 1995 or thereabouts Leonard Earl St. Hill represented the Scotland District Association against the Attorney General and Prime Minister of Barbados.

Mr. St. Hill was no lawyer. He appeared before Mr. Frank King and was opposed by the Attorney General.

The Prime Minister of Barbados, as far as the Scotland District Association alleged, acted ultra vires in placing a garbage dump in the National Park on land zoned for the supply of water.

Once the case was lost the Government applied for security for costs of $60,000 BDS if I remember correctly, effectively killing the appeal.

Richard Goddard and others mobilized opposition to the plan to locate the garbage dump in the National Park.

Funnily enough, it happened in Barbados.

Even funnier, the Attorney General was David Simmons, MP for St. Thomas and member of the then ruling Barbados Labour Party.

Simmons caused a storm when he was elevated to the Chief Justice of Barbados in 2001. The Prime Minister was Owen Seymour Arthur.

Both of them and Barbados are known to Mr. Best in his trials.

It is estimated that the Government of Barbados spent in excess of BDS$50 million (US$25 million) trying to mitigate the land slip issues but the springs in the hills above the dump made it into a lake, just as predicted by members of the Scotland District Association.

Twenty years later, no garbage has been dumped there; a victory in the court of public opinion for the Scotland District Association.

It was also a victory for common sense.

Sometimes victories are not won in a court of law and sometimes a loss in court is a win.

This article originally left as a comment by ‘John’ on Advice for self-represented litigants, Part 1: Walking away is sometimes the best decision

Advice for self-represented litigants, Part 2: The Important Rule that most self-represented litigants never learn, or learn too late.

lying lawyers Canada Barbados 5-SANThe Important Rule that most self-represented litigants never learn, or learn too late:

It is an opposing lawyer’s duty in law to deceive and obstruct you.

“Be instantly wary of any advice, suggestion, question or information from opposing counsel. They do not have your interests in mind; quite the opposite.”

For the moment, forget about Civil or Criminal court procedures. You need to know about the lawyers’ Rules of Professional Conduct; because these rules allow lawyers to deceive, cheat, abuse and obstruct the self-represented litigant in ways that ordinary people might consider to be unethical, unfair or unjust.

by Donald Best, former Sergeant, Detective, Toronto Police

by Donald Best, former Sergeant, Detective, Toronto Police

The most formidable challenge of being a self-represented litigant (‘SRL’) is that you must play in a game where the complete rules are known only to your opponents and to the referee (who is called ‘the judge’).

There are different sets of rules for different types of cases and different courts. The rules for Criminal proceedings differ so much from Civil procedure that most lawyers hesitate to cross into the other area of practice in all but the simplest cases. I personally saw one of Canada’s most senior and respected criminal lawyers overwhelmed by the Ontario Rules of Civil Procedure in just a few months. He charged me $60,000 for his reputation and then walked away. (And I thought, “If a man with 35 years before the criminal courts can’t figure out the rules of civil procedure, I’m toast.”)

The rules themselves are complex, and are made even more so by normal practice where rules can be bent, avoided and waived under various circumstances. Different courthouses can have different procedural sub-rules where legal documents must be filed a certain way at one courthouse, and another way in the next town.

There is also the reality that some judges routinely allow lawyers to break, bend or ignore various rules; even as the same judges slam self-represented litigants for being unaware of, or breaking, the same a rules or procedures.

And into the middle of all this chaos steps the self-represented litigant; desperately trying to learn enough of the rules and procedures to be effective against opposing counsel who might have 20 years or more appearing daily in the courts.

You don’t even know what you don’t know.   Read more

Advice for self-represented litigants, Part 1: Walking away is sometimes the best decision

Walking on Ice Litigation-private

Self-represented Litigant: “But I have so much invested in this case.”

Me: “You haven’t seen anything yet. You still have a car and a wife. If you continue, both will be gone by Summer.”

by Donald Best, former Sergeant, Detective, Toronto Police

by Donald Best, former Sergeant, Detective, Toronto Police

Not a week goes by that I don’t receive at least two or three long emails from self-represented people who are facing personal disasters and injustices before the courts. Most of the writers tell of years-long legal battles where they started out represented by a lawyer, only to be forced by dwindling finances to take over the case themselves.

I remind them that the legal system is set up so that lawyers normally profit by dragging out litigation, not by winning or settling for their clients in a timely or effective manner.

The writers speak of their surprise in discovering that truth and justice don’t seem to matter to the courts; only the rules of civil procedure matter along with the unwritten rules of the court staff that often change on a daily basis. (Last week a white cover on filed legal documents was fine, this week it must be green, or blue. Double-sided was fine last month, but this week documents must be printed single sided… and on and on.)

While a very few of the writers are clearly unhinged (or have become so after years of obsessively seeking justice that will never happen), the vast majority who write to me are educated, intelligent people who are highly competent in their own professions. Yet, they find themselves struggling and caught up in legal systems designed to serve the needs of the legal profession first, and operated by lawyers and former lawyers (now known as ‘judges’).

Lawyers and judges frequently become angry with self-represented persons, whether their anger is due to frustration or is deliberately summoned to control, intimidate or damage. The system seems designed to allow lawyers to overwhelm and destroy citizens who cannot afford the price of legal counsel; even when the facts dictate that any jury would side with the self-represented litigant.   Read more

Supreme Court of Canada makes first Tweet; 13 Canadians Tweet back, including me

SCC Supreme Court Canada Twitter Donald Best sml-private

Three hours after the Supreme Court of Canada tweeted its first on Twitter, only thirteen people had tweeted to @SCC_eng

But those who tweeted weren’t shy. Besides sending congratulations and expressing approval at the SCC’s move to improve access to justice, Canadians commented their views about Muslims wearing nicab for citizenship ceremony, that the SCC should move decision announcements from Fridays, charging Harper officials and provide a job for a friend. (I liked that last one.)

Chief Justice McLachlin commended the Court’s presence on Twitter: “Communicating on Twitter forms part of the Court’s commitment to open and accessible justice.  Sharing information about the Court’s work is crucial to its mandate, and Twitter is a useful tool in achieving this objective.”     Read more

1 2 3 4 5