It’s a reality many employment lawyers and HR professionals are familiar with — self-represented litigants (SRLs) can, at times, be frustratingly difficult to deal with. They can be emotional, often lack legal knowledge, miss deadlines, and misunderstand court procedures.
It’s the legal equivalent of an experienced fighter taking on an amateur in the ring. It is simply not a fair fight.
An Ontario judge recently called on lawyers to maintain high standards of professionalism, and to adjust their behaviour accordingly, when dealing with SRLs, after a lawyer failed to respond in a timely manner during a wrongful dismissal case.
This includes clear communication of legal concepts, avoiding unnecessary legal jargon, and treating SRLs with the same respect and courtesy afforded to other lawyers, the court said in the case involving a wrongful dismissal claim.
“Lawyers enjoy a privileged position in our legal systems because of their education, training, and expertise,” said Justice Ranjan K. Agarawl. “But that power comes with a corresponding responsibility to communicate professionally and promptly with all justice sector participants, including SRLs. Lawyers should afford the same courtesy to SRL as to each other.”
‘Go high’
Lawyers are trained to navigate the complexities of the legal system, to dissect evidence, and to outmaneuver opponents. But when that opponent is not another seasoned lawyer but a layperson, the power dynamic can be skewed. The SRL is an easy target, often making mistakes that can be seized upon to win a case.
It’s easy to get caught up in the adversarial nature of the legal process, especially when dealing with an SRL who may be emotional, combative, or simply misinformed. This is where the true test of professionalism lies. The temptation to “go low” in such situations can be overwhelming, but it’s in these moments that lawyers and employers must strive to “go high” — if we can steal some phrases from the Obamas.
Because how we treat those who are less informed, less powerful, and less prepared says more about us than about them.
Employers’ role in encouraging ethical behavior
For employers, the reputational stakes are arguably even higher. The behavior of a lawyer in court reflects directly on the company they represent. An aggressive, win-at-all-costs approach may secure a short-term victory, but it can also cause long-term damage to an employer’s brand.
In an era where corporate responsibility and ethical behavior are more scrutinized than ever, how a company handles legal disputes, especially with former employees, can have lasting implications on the employer brand.
After all, cases that go to trial end up becoming public documents — available in full on legal websites like CanLII and reported in media such as HR Law Canada where the company name is often front and centre.
When an employee — or former employee — decides to take legal action, it’s often not just about the money. It’s about how they feel they’ve been treated. Even if the company is in the right, an overly aggressive legal strategy can make it seem otherwise. It can turn a straightforward case into a public relations nightmare, painting the company as a bully rather than a fair and responsible employer.
Employers should join ranks with this judge to encourage their legal teams to take the high road. This doesn’t mean rolling over or conceding to every demand made by an SRL, but it does mean handling the case with dignity and respect.
Better to defend an outcome on the merits of its case rather than the missteps of a uninformed plaintiff.
This is especially important in today’s digital age, where word of mouth and online reviews can have a significant impact on a company’s brand.
This column originally appeared in HR Law Canada. For more information, visit www.HRLawCanada.com.
