The Conundrum of the Difficult Client

From the moment I created my first public legal education family law website, BC Family Law Resource, in 2001, I have been contacted by people from across Canada, mostly in British Columbia, dealing with difficult family law issues on their own. Although a study of the users of the website’s current incarnation, JP Boyd on Family Law, found that a significant share of users are legal professionals, it was litigants without counsel and people simply browsing for legal information who I originally set out to help.

In the years that passed, hundreds, maybe thousands, of people have gotten in touch with me for legal information about their family law disputes. Unless I’m drowning in deadlines, I always took – and continue to take – the time to talk or write to them and shine some light into the murky depths of family law.

Most of these folks have been glad to have my time and left our conversations with a better sense of the road ahead. A notable few, however, were beyond my capacity to help and not only resisted the information I gave them but were upset, if not enraged, that I had failed to support their vision of the future and refused to tell them what they wanted to hear. By and large, these people felt that they had been unfairly persecuted or victimized, by the system or by their former partner, they held unshakable but highly improbable goals, or they saw themselves as among the vanguard of a marginalized segment of society pushing for much-needed reform. Some were fixated on remedying historical wrongs, long out of limitation and appeal periods, and had exhausted every conceivable recourse, including complaints to the law society and to the judicial council. Others had so conflated their children’s interests with their own that they could no longer assess the magnitude and significance of the events in their lives, and perceived every slight, such as a minor delay in dropping off the children, as an injustice of the highest order and an existential threat to their children’s wellbeing.

As private counsel blessed with an abundant stream of referrals, I had the discretion to choose my clients. I would usually decline to work with individuals who had more than three previous lawyers, individuals who were combative and unlikely to follow the courses of action I recommended, individuals with unrealistic expectations I could not reshape and individuals expressing a degree of conflict markedly out of proportion with the events they described. It is not unreasonable, I think, that I should select clients who posed less of a risk to my reputation, my insurance premiums or my standing with the law society.

However, Russell Alexander posted some comments yesterday on the recent decision in Kirby v Kirby that has given me pause for thought. As Alexander describes things, this case required an almost inconceivable 17 years plus a 10-day trial to get to a final order, due in part to the wife’s lack of representation. The chickens ultimately came home to roost on the question of costs. Here’s Alexander’s summary:

The court then examined the spouses’ respective conduct during the course of the litigation. In fairness, it noted that both spouses were responsible for the fact that the file languished for years and years. But it credited the husband for making greater efforts to settle without a trial, for being better prepared, and for behaving “much more admirably during trial.”

On the other hand, the wife’s conduct was unreasonable: she made late-breaking “wild allegations” of being raped by her husband, and failed to comply with prior orders. Even her submission on costs was filed late, after being granted an extension, and it did not comply with the court’s express directions on its length. (The court read it nonetheless, as a courtesy.)

As the court summed it up: “she single-handedly caused the hearing to be significantly longer than it should have been” and her conduct in the past two years or so was “worthy of serious condemnation by this Court.”

It concluded that the case “ought to have never went to trial,” and [held] that “awarding to [the husband] every cent of the $190,438.63 is in the cards.”

However, the court noted that the wife is “indeed, mentally ill,” a fact confirmed by the family physician’s evidence, and surmised that some of her unreasonableness is due to her psychological issues. Concluding that this militated against awarding the husband his full costs, the court reduced the total to an even $150,000, all-in. Those costs were to be immediately deducted from the wife’s share of the proceeds of the matrimonial home.

I won’t speculate on what was driving the wife – perhaps her family doctor was right, perhaps not – but in response to a brief reference to Alexander’s article I posted on Twitter, one person commented:

If [the wife] doesn’t have counsel because her behaviour causes counsel to not want to represent her, is it actually an access to justice issue, in the sense that this term is commonly understood?

This is an interesting point, and I think the answer is yes.

As the research on litigants without counsel points out, while the majority of this population don’t have lawyers because they can’t afford the legal fees, some don’t retain lawyers because they believe they’ll do a better job or get a better result if they do it themselves, and others don’t retain lawyers because they can’t find one who will agree to be hired.

Our court system is a public good, like our health care system and our K to 12 education system, and the only prerequisite that must be met to access it is residence in Canada or involvement in a legal dispute with a “real and substantial connection” to a jurisdiction in Canada. However, the system’s roots in the common law and adversarial tradition have resulted in a complexity of principle and process that is deeply intimidating to those who are not legally trained; consider the mind-boggling length of most superior court rules, the number of pages in most Supreme Court of Canada family law judgments, the inaccessible language used in most family law statutes, or the disorganized state of the case law that must be read to understand and apply those statutes. Having a lawyer is often essential to piecing these bits and pieces together and successfully navigating a labyrinthine system to prosecute one’s claim.

I now wonder about those people I turned away in my former career as a representational advocate. (Now that I work primarily as a family law arbitrator and mediator, I no longer feel this conundrum quite as sharply.) Although my decision to not represent those individuals was made for rational albeit selfish reasons, they nonetheless left my office without counsel, and were likely destined to a parade of initial consultations in their efforts to hire someone else.

Is this an access to justice issue? Well, yes, it is. This difficult segment of the litigating population is uniquely vulnerable, especially when the challenging nature of their temperaments are buttressed by personality disorders and other mental illnesses, and are especially in need of representation if justice is to be done. Also, let us not forget the financial and emotional impact such individuals have on those on the receiving end of their wrath and indignation, or the administrative burden their cases typically impose on the courts. It seems to me that all three players – the intransigent litigant, those whom they are suing and the court system managing their claims – would benefit enormously if such litigants had counsel. (After all, the job of counsel is not to supply unthinking obedience to clients’ instructions, but to provide a cogent analysis of the pros and cons associated with the client’s instructions and suggestions of alternative, better courses of action.) Perhaps with counsel on both sides, Kirby would have concluded in two years rather than 17, after a five- rather than 10-day trial, and at a cost to the husband of $19,000 rather than $190,000.

However, this category of party is the category for whom the frivolous-and-vexatious litigant provisions of the courts’ enabling legislation were designed, not that I am suggesting that Ms Kirby falls into this category. These individuals are seen as troublesome irritants, and are precisely the sort of party for whom legal aid funding will be denied. Why would we expend the public purse funding the prosecution of questionable claims doomed to fail? And yet, the financial, emotional and administrative toll taken by unrepresented litigants pursuing such claims is likely exponentially greater than the cost of providing them with lawyers to manage their migration through the system.

Another idea might be to fund mental health support through legal aid where litigants are able to retain counsel privately. That sort assistance might help lawyers and clients negotiate instructions and develop strategy, help clients appreciate and understand legal advice they don’t want to hear, and help lawyers better manage the overall conduct of their clients’ claims. It also might encourage lawyers, who are naturally allergic to anything posing a risk of complaints, to make the leap of faith required to represent challenging individuals.

It seems to me that some way must be found to provide difficult litigants with counsel, with mental health support, or with both. They are equally entitled to access justice as anyone else, and not providing them with assistance has repercussions that extend far beyond the success or failure of a particular claim.

Comments

  1. The problem is indeed “the system’s roots in the common law and adversarial tradition”. If we are to tend our garden, as Voltaire’s Candide suggested, then we should root out this weed and sow the seeds of a more nourishing plant.

  2. What comes to mind is the kind of intervention that Public Guardian and Trustee agencies provide.
    The widely recognized purpose of a litigation guardian is to protect the litigant who is incapable of making the necessary decisions in a proceeding… but it is also to protect the other litigants. Putting aside the thorny question of how and under what test a vexatious litigant’s right to individual agency and autonomy ought to be overruled, there is the curious case of 626381 Ontario Ltd. v. Kagan, Shastri, 2013 ONSC 4114 (CanLII), .
    That case is a civil one, but it involves a plaintiff who insisted on a capacity assessment for herself… resulting in the PGT being appointed (with the consent of defendants) to act as her counsel in a couple of her many out of control lawsuits. In a predictable yet fascinating turn, the plaintiff then attempted to remove the PGT before it could get approval for settlement of one of her claims.
    I’ll end with a link to an article by Gary Caplan and Hy Bloom called “Litigants Behaving Badly: Querulousness in Law and Medicine,” Advocates’ Quarterly vol. 44, no. 4 (November 2015): p. 411-459. . At p 456 they write:

    “As a starting point, one might be prompted to ask why is there any need at all to “pathologize” vexatiousness or to treat such conduct as a medical and not a legal matter? After all, the legal response to querulous conduct, now more than 120 years in the making, seems, superficially at least, up to the task. Moreover, there are surely many such litigants, overinvested as they are in their pursuit of justice, who do not fall within the purview of psychiatry. Indeed, to apply a medical label runs the risk of abuse, particularly given the under-developed treatment of such conduct in the medical literature.
    One of our fundamental arguments in this paper is that greater latitude to assess the mental health of a troublesome litigant at the earliest stage of a proceeding in which that admittedly invasive step can be taken has significant positive implications for the courts’ time, the parties’ costs, the mental health of not only the problematic litigant but also for other parties, who may be stressed in the extreme by their escalating sense of powerlessness and helplessness. Earlier psychiatric assessment of the litigant in question also provides an opening to avert violence, a potential outcome which has received too little attention in the vexatious litigant discussion, but, is a known phenomenon, as the case of Bart Ross shows. Timely psychiatric assessment may allow for earlier intervention for those querulous litigants who have symptoms and conditions amenable to psychiatric and psychological treatment.”

  3. John-Paul makes a useful point here about the need for services that meet the needs of those with a diagnosed mental illness. Litigants with a serious mental illness that is affecting their ability to work with a lawyer and resolve their case cannot be shut out of the system. In my view, part of the solution lies in offering specialized training for a cohort of lawyers who have the necessary skills and tools to maximize the chances of making a successful lawyer/client relationship with a mentally ill client, and who will make this the focus of their legal practice.

    I also appreciate JP’s shout-out to the reality (reinforced by multiple studies) that most people are representing themselves because they cannot afford a lawyer. But in the same sentence, we seem to be back to the type of ungrounded speculation that reinforces the stereotypes and myths about SRLs that the NSRLP has worked so hard for the last five years to break down.

    There is no qualitative data showing that a significant percentage of SRLs who are representing themselves are doing so because they believe they can do a better job than a lawyer (some “tick the box” surveys might produce this result, but the reality as interviews show is much more complicated). In my own study, this justification was sometimes presented at the beginning of an interview as an initial explanation for their decision to self-represent – many SRLs feel shame that they do not have a lawyer, others feel defiant having confronted so many obstacles– but then walked back as the (30-90 minute) interview went on, and a different picture emerged (for the overwhelming majority always lack of funds). Similarly, while I am aware that when someone who feels that they have not be well-served by their first counsel, they often present questions and challenges to a potential second or third lawyer that many lawyers dislike, but there is no study that has identified a significant number of SRLs who want a lawyer but can find no one to represent them. Again, this has to be understood with the complexity and context it deserves; the public is no longer willing just to be “told” by their lawyers, they want to know how their money is being spent and they seek explanations.

    But perhaps the most upsetting part of this blog for me (and the many SRLs I have heard from about it) is the way it conflates people who are “difficult” (upset, traumatized, in a bad situation, or unrealistic in their expectations) with those who are mentally ill. That favourite canard of lawyers, the “personality disorder”, also makes an appearance. It is worth reminding ourselves that judges and lawyers also have personality disorders, and they also experience mental illness. When they adopt an angry, aggressive tone we easily ascribe it to “zealous advocacy” or the pressure of working with SRLs from the Bench. The reaction to an angry or frustrated SRL is very different. Just because an SRL is upset about spending a lot of money without a satisfactory outcome (usually the fault of our adversarial system, not the lawyer, but that is not a distinction that means much to individuals in this situation) does not make them mentally ill or personality disordered.

    Can we please stop assuming that justice system insiders with no relevant training possess the credibility and expertise to make mental health diagnoses and draw such conclusions?

    PS While this was a quote from Russell Alexander’s article about the Kirby case, I also find the repetition of the assertion that the wife made “late-breaking ‘wild allegations’ of being raped by her husband” deeply offensive, as well as a perfect example of the problem I am trying to draw attention to here. Just how is it that we think we know this?

    My blog today – “A Place of Powerlessness” – discusses this issue in greater depth.
    https://representingyourselfcanada.com/a-place-of-powerlessness/

  4. Thanks for your comments, Nate and Julie. I appreciate them both.

    Let me be clear about one particular point in this post. I did not equate litigants who are difficult with litigants who have mental health challenges. What I said was this:

    “This difficult segment of the litigating population is uniquely vulnerable, especially when the challenging nature of their temperaments are buttressed by personality disorders and other mental illnesses, and are especially in need of representation if justice is to be done.”

    Although I suggest that mental health support might be useful for difficult litigants, the purpose I had in mind was this:

    “That sort assistance might help lawyers and clients negotiate instructions and develop strategy, help clients appreciate and understand legal advice they don’t want to hear, and help lawyers better manage the overall conduct of their clients’ claims.”

    In other words, I suggest that such support might help clients and lawyers engage in tough conversations in the manner of a facilitative counsellor, not because there are underlying mental health issues requiring treatment. Likewise, I do not suggest “that justice system insiders with no relevant training possess the credibility and expertise to make mental health diagnoses and draw such conclusions.” Far from it.

    Some difficult litigants are indeed beset with personality disorders and other mental health conditions. Many are not. That, however, is beside the point I am trying to make. Regardless of whatever aggravating psychological factors may or may not be present, these litigants would benefit enormously from legal assistance – from justice system “insiders,” unless there is another category of advocate available – and what might help lawyers provide this assistance is support from someone who can help them have the hard conversations that are necessary to this end.

    My suggestion has got nothing to do with pathologizing challenging clients, and I took pains to avoid implying that all challenging clients are “mentally ill or personality disordered.” They are not.

  5. I am grateful JP has opened the discussion on the issue of mental wellness and our adversarial justice system including the lawyers and justices who are at the helm.

    It is offensive for the legal profession (or anyone else) to “ass-u-me” that because a client is not represented by counsel they are the mentally ill party or that their mental health challenges, as I prefer to call such diagnosis, is the problem.

    Has anyone ever considered what caused the decline of a party’s mental health in the first place?

    Our present justice system is enough to drive any sane litigant into madness never mind add to the injury or illness of those already within the spectrum.

    To assume that a represented party (or their counsel) is not the one with a mental health issue would be highly incorrect.

    It is time EVERYONE took a step back regarding the issue of mental health and wellness. Please stop referring to mental health as an illness or disorder. We do not say “he has a heart illness or a diabetic disorder” do we?

    So, stop it.

    The opening statement in JP’s blog is defining to me. The mere fact that he groups healthcare and K to 12 education, in with our court system, shines the spotlight or rather a high-powered fog light, on the whole issue.

    Which one of these things is not like the other? Two of the three services JP references are more or less fully publicly funded. The odd man out being court which is not fully publicly funded. I can speak from experience both as having retained counsel and to being self-represented, that the issue of mental health is absolutely not solely on the shoulders of an unrepresented party.

    If you disagree, perhaps explain to everyone why legal practitioners hold among the highest drug and alcohol addiction rates of any profession? Why we have justices telling rape victims they should have held their legs together and a little bit of pain during intercourse should be expected, or wearing Trump “Make America Great Again” caps into court or letting a university hockey star off the date-rape hook because it would ruin his future career? Why does the legal community accept abusive conduct under the guise of sharp practice or zealous representation, which is extremely harmful and unfair? Why does the justice system feel it is ok to asset strip its citizens through what I would describe as alleged legal fraud?

    Now THAT’s nuts.

    JP is absolutely correct. Our laws and justice system is supposed to be “a public good”. So why are we not designing a system that is properly and fully funded, less adversarial, more streamlined in terms of process, and the 50 billion-dollar legal industry question – more easily accessible to anyone whether represented or not? Why is an archaic unhealthy adversarial system still considered ok? It is not ok.

    It is my view that the justice system itself is seriously affecting everyone’s mental health and wellness and for those who are predisposed to mental health challenges, the justice system and its adversarial process is the nail in the coffin to anyone suffering or predisposed. I have said it before, the system is making everyone sick, literally, and the collateral damage extends into our family life, our workforce, our economy and it is costing our healthcare system millions of dollars as a result of the harm it is (allegedly) causing to its citizens.

    So, stop it already.

    Eliminate the adversarial system. It is extremely toxic and unhealthy and it sure is not contributing to a healthy community.

    Do a little bit of reading. It shouldn’t be a stretch for anyone to read the work of Professor Jennifer Freyd, University of Oregon, who has researched institutional betrayal for over 25 years or Dr. Karin Huffer’s research on legal abuse syndrome. Professor Macfarlane’s work has been ground-breaking in drawing attention to the extreme challenges the justice system having upon the Canadian public.

    Pay attention to all of their incredible work.

    Understand what causes mental health challenges such as Post-traumatic Stress. Primarily, PTS is a result of a moral injury. Betrayal trauma is real and our justice system is ripe for stimulating legal abuse, extortion and asset stripping.

    Who wouldn’t become unwell from such experiences as these?

    Put yourself in the shoes of the person you are imposing your limitations and stigma on regarding mental health.

    I invite the legal profession to turn the mirror onto themselves and seriously reflect upon the cause and effect of exactly what is stimulating or causing “mental illness” in the justice system.

    Stop talking and start implementing real changes within the system. The most inexpensive way you can change the justice system now is by changing your own attitude and how you view what you see as mental illness being the problem.

  6. Footnote: My comments were not intended to be directed to JP but rather to express frustration on this issue and how the legal profession views those managing mental health challenges. Mental health is everyone’s issue.

    How can the system help rather than hinder (and/or stigmatize) the challenges that unseen disabilities such as mental health, not all being personality disorders (that’s too easy a blanket to throw), but may include autism spectrum, aspergers syndrome, early onset of dementia, legal abuse syndrome (which is real), depression, anxiety, post-traumatic stress, traumatic brain injuries, and a host of other challenges.

    Thank you for writing and ‘listening’. I am hopefully that such conversations provide a shift in perspective to anyone reading them.

    E.

  7. Thank you JP for starting the conversation on such an important subject. I am in full agreement with Julie and Elizabeth so I won’t reiterate their points.

    I am not familiar with the details of this case but I cannot believe that in the 17 years of family law litigation NO ONE at the court house or in the legal profession stepped in to assist this SRL with an exit strategy.

    Last year I asked a room full of justices and prominent lawyers: “If you had a personal issue before the court would you represent yourself?” The resounding answer was “NO!” Interesting … those with an intimate knowledge of our legal process and the Law choose not to step into the legal arena on their own. Could it be that they are aware of the mental and emotional costs associated with representing themselves?

    It may be that SRLs are more inclined to have unrealistic expectations of our legal system rather than have a pre-existing mental health issues. If you are not provided with quality information about the legal process before you have to become an SRL then those expectations will not be aligned with reality (i.e. the difference between factual information and legal arguments). It does not take long for SRLs to realize that their lack of legal training is a serious liability and struggle to find a way out. An exit strategy is often elusive, or not available, without the support of an experienced legal expert who takes the time to educate and communicate options effectively.

    I encourage law professionals who have SRLs show up at their office to keep an open mind. Before you decide whether they are a worthy client, consider having an honest & candid conversation to find out why they chose this difficult road. You will also want to explore what information was provided to them by the first (2nd, 3rd …) lawyer they contracted with. The answer(s) may surprise you and I guarantee you will learn a lot about the dark side of our legal system. I have the highest respect for laypeople who dare to venture into the legal arena without the armor of a law degree. I also understand that it is usually done out of necessity and comes at a great cost to the individual. It takes a lot of courage and sacrifice to stand up for oneself.

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