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

People involved in small-scale estate litigation cases often question if they can represent themselves to save on legal costs. In short, yes, the law in BC allows people to self-represent. However, those who choose to do so may find themselves at a significant disadvantage.

What to Expect

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, the court holds a self-representing litigant to the same standards as a lawyer, and they must prepare well to avoid undue delays in court proceedings. Further, the courts do not have any special treatment for self-represented litigants. In the case, the Court stated, “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, the court treats a self-represented litigant as a trained lawyer, expecting them to act and prepare for the court hearing as a lawyer would, which puts them at a disadvantage due to 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 lack the experience to present the necessary information to the Court, struggle to find the resources for researching relevant legal issues, and are unfamiliar 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. The lawyer receives payment only if they win the case, sometimes earning a percentage of the winnings. If they lose the case, they charge the client only for their out-of-pocket expenses, known as disbursements, incurred while 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.

Other Limited Legal Services

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 engages a lawyer for case preparation assistance, receiving advice on the necessary documents and the evidence to present 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.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.