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Self-Representation In Estate Litigation: Is A Lawyer Required?

Self-Representation in Estate Litigation: Is a Lawyer Required?

When people are involved in small-scale estate litigation cases, they commonly wonder whether they can represent themselves in order to save money in legal costs. In short, the answer is yes; people are allowed to self-represent themselves in BC; however, those who choose to self-represent can find themselves at a large disadvantage.

What’s Expected from a Self-Represented Litigant?

The recent estate case of Sull v. Pengelly (2019) featured a self-represented litigant. The courts specified exactly the obligations that a self-represented litigant must adhere to:

  1. Familiarize themselves with the relevant legal practices and procedures that pertain to their case;
  2. Prepare their own case; and
  3. Be respectful of the court process and the officials within it.

Essentially, when a litigant chooses to self-represent, they are held to the same standards as a lawyer and must be well-prepared so as to not unduly delay the court proceedings. Further, the courts do not have any special treatment for self-represented litigants. The case quoted that, “the mere fact a party is self-represented is not a basis on which to depart broadly from the rules that govern litigation, for the administration of justice is not well served by an imbalance in the latitude afforded litigants.” In sum, a self-represented litigant is treated as if they are an trained lawyer and are expected to act and prepare for the court hearing as a lawyer would, and are hence put at a disadvantage by their legal inexperience and lack of formal legal training.

When is Self-Representation a Good Idea?

Being a self-represented litigant almost always poses a significant disadvantage when the case is against someone who has formal legal representation. Self-represented litigants simply don’t have the experience to know what to present before the courts, how to find the resources necessary to research the relevant legal issues, or are not familiar with the legal procedures involved in an estate dispute claim.

While self-representation may save money in legal fees, it comes at the cost a significant amount of time to research the relevant legal issues and to prepare the case. Further, self-represented litigants have a heightened chance of losing their case with an estimated 98% of self-represented litigants failing to win their case. People should approach representing themselves in an estate dispute with a high amount of caution as the lack of legal training and experience can mean failing to get the desired result from the claim.

Other Options Available

In some cases, lawyers will offer to work on your case on a contingency basis. This means that the lawyer will not be paid unless the case is won, in which case the lawyer receives a percentage of the winnings. If the case is lost, the lawyer does not charge the client anything other than their out of pocket expenses (referred to as disbursements) for pursuing the case. If cost is the main determinant to choosing to self-represent, a contingency fee agreement with a lawyer can be a great option to consider. It’s important to note however, that contingency fees are typically higher than regular lawyer fees because of the risk of loss on the part of the lawyer.

There are also other approaches that one can take when it comes to estate dispute litigation that fall somewhere between complete self-representation and full lawyer representation. A limited scope retainer or unbundled legal services is one option. In a limited scope retainer, the litigant hires a lawyer to help prepare their case, advising on which documents should be prepared and what evidence should be used before the courts. The litigant then represents themselves before the courts with the information imparted to them by a lawyer. This way, self-represented litigants can be sure that they are following proper legal procedures while they have the autonomy to present the case before the courts as they wish.

In the end, even though complete self-representation can save legal expenses-if they win the case– it ultimately puts litigants at a considerable disadvantage, particularly when their opponents have retained counsel. Lawyers will always strive to represent their clients to the best of their abilities, ensuring the best possible outcome. If a person is considering self-representing, pursuing a limited scope retainer or full lawyer representation, consultation an experienced estate lawyer can be helpful in making the right choice.

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