6 ideas to do better if representing yourself in family court
You’re in family court and can’t afford, or don’t want, a lawyer – or had a lawyer and have run out of money. What to do? Acting for yourself sounds scary and intimidating. It is. But it needn’t be. We’re going to set out some steps you can do to make being a self-rep more effective.
There are thousands like you and most could do better
There are roughly 320,000 people in family court in any year. Estimates are that between 64% – 80% of them are self-reps, or self-represented litigants (SRLs). That’s between 204,800 – 256,000 people acting for themselves. And, with varying degrees of success, they’re all getting through the system.
If each side is a self-rep, then the odds of one of them winning are 50/50. The take their chances, present their case, and get a decision. (The average family court matter takes around 2 years to complete.) But the “winner” could usually have done better if they’d had some guidance and help.
But where one side has a lawyer and the other doesn’t, the self-rep does way worse. A recent, 4-year, study of Ontario Superior Court family law cases showed that in those cases the represented party won 73% of the time and the self-rep won only 14% of the time. (The other 13% of cases were either no decisions or split decisions.) So not having a lawyer puts the self-rep at a really big disadvantage.
There are lots of reasons for this, but we’re going to focus on how to improve those odds.
Being good at what you do, doesn’t mean you’ll be good at representing yourself.
Here are some tips to do better.
Face it. You’re probably pretty good at what you do. You know how to get the job done. You may have had some training before getting the job or maybe some on-the-job training. And you’ve likely been doing it for a while. But going to family court isn’t something you’ve ever done before. So being good at what you do doesn’t mean you’ll be good at representing yourself. Here are some tips to help you do better:
1 Know your story – the 3 Ws
This isn’t as easy as it sounds. You need to practice over and over how to tell the judge your 3 W’s: Why you’re in court. What you want. Why you should get it. And you need to be able to tell them in a clear, brief, and simple way.
Pretend you’re in line getting your morning coffee at Tim’s. The person in line in front of you asks about your day. You tell them you’re going to family court and they ask why. The line moves up a customer. You need to be able to give your 3 W’s before that person gets to the front and has to give their order.
Take 3 sheets of paper and write one of the 3 Ws at the top of each sheet. Write out your answer to each question. Take a deep breath and go back to your first answer and make it shorter and more to the point. Then do this with the other two. Keep going back and making each answer shorter. Leave in only the most important parts until you can answer each question in 1-2 sentences, 3 at the most.
I’m going to court to get more access. I’m asking to extend the alternate weekend access to end with me taking Sam to school Monday morning instead of returning him Sunday night at 7:00. I’ve shown that I can get his homework done, and the extra time will allow him to spend more time with his cousins and not have to rush whatever we’re doing to finish dinner so he can be home by 7:00 pm. He loves being at my home and I have a separate room and bed for him.
I’m going to court to ask for more child support. I’m requesting that it be increased to match Henry’s higher pay for his new job. Henry got a better job last March, and has refused to tell me his new salary or to make any adjustment to the child support payments.
2 Organize. Organize. Organize.
You need to organize your material, and whatever exhibits you may need, to tell your story to the judge in a sensible way.
For your written material: Tell your story in a way that makes sense, that reads naturally, and puts the important things the judge needs to know up front and in an easy way to read. Use headings and sub-headings.
Sometimes this means using headings such as: Background. The events of May 3rd, 2016. Sally’s use of drugs. My involvement with the children. What I think would be best for our children. The orders I’m requesting.
Sometimes you’ll be focusing on just one event in which case the headings might be: The incident as John’s school on June 12th, 2016. The 2 previous incidents and how George handled them. What the school staff and John’s counsellor recommend. How I can carry out the recommendations better than George. The orders I’m requesting.
Perhaps it might be: The circumstances at the time of the current child support order. I lost my job in September 2015 and only found a new one in March 2016. I’m not earning as much as I was and child support should be reduced. Why Sally’s not cooperating. A Table showing my overpayment of child support from September 2015 to now. The orders I’m requesting.
Each story is different. But thinking through how to tell it in clear and simple language, and the using headings, makes it easier for the judge to see that you know what you’re talking about. That makes it easy for the judge to understand why you’re in court, what you want and why you should get it.
Keep each paragraph to just one thought and try to user no more than 3 sentences unless you have to. Even then, try to break it up.
By organizing the way you tell your story, and by keeping it focused and clear, you’re making it easier for the judge to agree with what you want.
For your exhibits: Include the documents that you’re referring to so the judge can see that you’re being accurate. Put in the documents you know the judge will want to look at to understand your case. And put in the documents that help you tell your story. Give each exhibit a letter (The email from Susan on February 10th, 2016 is attached as Exhibit “C”.) so then you can refer to Exhibit C whenever you talk about that email later.
You’ll find that the time it takes to organize your story and your material is well worthwhile. It makes your case stronger and more effective, and easier to deal with when you have to speak to the judge.
3 Forget the nasty:
As tempting as it is to tell the judge how nasty the other person is so they’ll “know the real him or her”, forget it. Judges don’t like to see mud thrown around. It weakens your argument. Stick to the important things: such as what’s best for the children and why, or the reason support payments should be changed. That makes your presentation way more effective. And when you absolutely have to tell something “bad” about the other person, do it in a way to show how how it affects the children, or affects their credibility. Don’t make it about you. Make it about whatever the judge has to deal with.
Trying to make the judge feel sympathetic to poor you and your woes isn’t a good strategy, even though it may feel good.
4 Know the steps in your case
Many self-reps find that knowing what will be happening at each court attendance, and what you need to do to keep moving through the system, to be mystifying and confusing. You think you’re going to court for one thing and discover something else is happening. Thing get bogged down because someone didn’t file the right document or do the right thing. It’s frustrating.
There are 2 resources on the Internet we strongly recommend to help you understand the process and be prepared for what to do next.
The first site is the wonderful Steps in a Family Law Case by CLEO (Community Legal Education Ontario). This is an interactive flow chart where you can figure out where you are in the process and what to expect next. You get the forms you need, and the Rules that apply, for each step along with a description of what’s going to happen. This applies for Ontario cases.
The second site is our own Steps in the family court process with links to a variety of other relevant sites.
5 Reasonable compromise is better than a fight-to-the-death victory:
If we feel that a certain thing is the “right” conclusion we generally don’t like to settle for less. Especially when we have friends and family urging us on and encouraging us to “keep up the fight”. But settlement in a family court case is more often than not the wisest and most effective thing you can do.
First: You never really know what a judge will do. So even though you’re sure you should win, doesn’t mean you can be sure you will win. Even lawyers lose cases they thought they were sure to win. So don’t count on getting all you want if you leave it to a judge to make the final decision.
Second: In most cases you’re going to have to work with the other party again, especially where children are involved. So getting a win that humiliates them and make you victorious will only make that harder to do. Keep in mind that a court decision is based entirely on the facts before the judge on that day. But you’ll be dealing with the other party over and over again as circumstances change, and you don’t want to have to go to court every time that happens. Eventually you’ll need to cooperate with, and get the cooperation of, the other side. So a compromise allowing both parties to feel they won a bit and lost a bit but are generally satisfied is better that trouncing the other side and making them an even worse “enemy” than they may be now.
6 Know what you’re talking about:
We all know people who talk as if they “know” everything. The odds are, they don’t. But they get away with it because the people they’re dealing with don’t know better, or aren’t fast enough with a response. If you know what you’re talking about you can deal with these people.
Making sure you know what your request to the court is about allows you to answer questions from the judge in a straightforward way. You’ll have a better idea about what makes a “reasonable” compromise. And you’ll have a more reasonable set of expectation about how your matter will end.
It’s not easy to get the information you need if you’re acting for yourself, but there are ways.
- Search the Internet for information: But be careful. There are lots of sites out there. You need to be sure that what you’re looking at is reliable and useful for you. Check government sites with family law information and lawyers’ sites with Q&A sections. There are also a variety of lawyers’ blogs. Be cautious about a site that has an “agenda” or an obvious bias. And keep in mind that legal information that’s correct for one jurisdiction may not be correct for your jurisdiction. So rely only on information from an authoritative source in the province where you live.
There’s also the Resources section of The Family Law Coach. Here you’ll find sections dealing with such things as Introduction to Family Law, The Family Court System, Steps in a case, Guides for self-reps, Tips, 15 Skills for effective representation in court, Legislation, a Library, and sections on individual family law issues. Each section sets out other sources on the Internet for reliable information. We’ve gone through each site and have confidence that they are all reliable.
2. Look for unbundled services: An unbundled service is anything that’s a part of what’s done on a full retainer, but not all of it. It’s a slice of normal service that can be as big or small as the client and the lawyer agrees.
There are lawyers serious about offering unbundled services for self-reps, but this is relatively new. So you need to be careful about whom to choose because some lawyers use the term “unbundled services” in the hope of attracting clients who will become full-service clients. One way of protecting yourself is to get what the lawyer is proposing, and the cost, in writing and then ask another lawyer for what they’d charge for the same service. Ask each what could be done for the figure you have in mind to spend and if they would finish the job and charge no more if they’re hired.
Most lawyers offering unbundled services still charge their normal hourly rate and don’t give you a fixed quote for the service, although there are some who will. So if you’re concerned about your budget, you should ask for a fixed quote before you begin to be sure you know what the overall cost will be.
3. Check for fixed fee services: This has now become easier. The Family Law Coach does just that and does it online by email or phone so you can access the services from anywhere. Take a look at our fixed fee services. At the present, there aren’t any other sites offering the same sort of predefined services, at fixed fees, accessible from anywhere. But The Family Law Coach not only offers a group of such à la carte services, but also has a Directory of lawyers, mediators, and others who do the same. (Check the Providers Directory in the Resources section.)
There’s lots more in The Family Law Coach Resources section – check them out.
These are a few of the things a person acting for themselves can do to present a more effective case. There are many more Tips and suggestions for self-reps, for free, in the Resources section of The Family Law Coach.