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Philip Slayton

‘I can do better than that’

The other week I bumped into my old friend Marty Katz. Marty was once my articling student. Talented lawyer though he was, it was evident that the practice was not for him. He went on instead to an interesting career in the artistic and media world, and now is a successful film producer.

Marty had seen a column I wrote in Canadian Lawyer a few months ago about self-representation before the Supreme Court of Canada. “You really want to know about self-representation?” Marty said. “Speak to Michael Alexander. He was my classmate at the U of T. He represented himself before the Supreme Court and has plenty to say about it.” So I looked up the 2005 Supreme Court of Canada case of Royal Bank of Canada v. State Farm Fire and Casualty Co., and set off in search of Michael Alexander, who was one of the appellants.


The facts in Royal Bank v. State Farm were simple enough. State Farm had insured a house that burned down while unoccupied. The house had been controlled successively by the Royal Bank and Michael Alexander, both of whom held mortgages that had defaulted. Neither mortgagee owned the property, choosing to proceed by power of sale rather than foreclosure. After the fire, both claimed under the State Farm policy. State Farm refused to pay up, saying that the appellants had failed to notify it that the house had been vacated, which was a change material to risk requiring notification under the policy. The Supreme Court found unanimously for the appellants, deciding that the clause relied upon by State Farm was inconsistent with the main provisions of the insurance policy and was superseded by those provisions.


Royal Bank and State Farm were, of course, represented by practising lawyers. Michael Alexander represented himself. He thought his lawyers had done a bad job at the Court of Appeal. Alexander e-mailed me that, as he sat in the courtroom taking notes, “my constant thought was, ‘I can do better than that.’ After the case was lost at the Court of Appeal, I decided that I couldn’t trust my fate (I was facing bankruptcy) to the ‘experts’ and that I was going to have to do it myself to make sure it got done the right way.”


What was it like to be before the Supreme Court pleading your own case? Alexander writes, “I had the greatest day of my life. . . . I was ‘energized’ in the way I used to be before a big game when I was a starting guard for my high school basketball team. . . . [I] crushed State Farm. . . . I could hear my voice, as though it were in a feedback loop; it conveyed strength and conviction. The more I spoke, the more confident I became.”


Alexander tells his Supreme Court story well, with many human-interest sidebars. He reports that a school tour visited the court the day he was there. “We’re here for the Alexander case,” one student told him in the foyer. “I’m Alexander,” he said. “Oh my gawd,” she said. “You are Alexander, oh my gawd.” He writes, “I was the Beatles for about five minutes.” Alexander describes meeting the State Farm entourage, about 20 lawyers and executives, at the bottom of the stairs leading to the courtroom. “They tried to stare me down. . . . It was like a scene out of West Side Story or a gangsta video.”


Of course, Michael Alexander isn’t typical of the person who represents himself in the courtroom. That person is generally driven by desperation and an inability to pay lawyers’ fees. He knows little about the law and likely will make a hash of his case. He is representing himself because he has no choice. Alexander, on the other hand, is a graduate of the University of Toronto law school. He went to graduate school and articled at a Bay Street law firm. Then his career took him in other directions. When he appeared before the Supreme Court, he was no longer a member of the law society, and — as he puts it — appeared as a citizen instead of a lawyer.


Judges are not big fans of self-representation. Chief Justice Beverley McLachlin, in a speech to the 2006 Canadian Bar Association annual conference, expressed considerable reservations about it (although the Supreme Court of Canada web site gives tips on representing yourself in leave to appeal proceedings). I asked Alexander in a telephone interview how he was treated before the court. “The judges were fine,” he said. “Not dismissive at all. They treated me like anyone else. I was held to the same standard as the other lawyers who appeared.” He singled out the chief justice for special praise. “She created an atmosphere that made it possible for a self-represented litigant to feel that he could ask for justice and might receive it.”


Should more people do what Michael Alexander did? It seems rational to represent yourself if you think you can do as good a job as most lawyers (or better) and you don’t want to pay hugely inflated legal fees. Perhaps there will arise a new class of people representing themselves, affluent members of the middle class who have turned their back on lawyers and increasingly believe that paid professional representation is unnecessary.


Alexander now describes himself as an entrepreneur, professional speaker, and writer. He’s working on a book entitled 10 ways to beat a bully: How to turn weakness into strength and win when the odds are against you. He thinks the middle class may abandon the legal profession. When we talked, he said, “Wait a minute. You’ve given me a great business idea. Classes teaching people how to represent themselves effectively in court!”

Philip Slayton has been dean of a law school and senior partner of a major Canadian law firm. Visit him online at
www.philipslayton.com

  • Accountant: CGA

    Brian N. Stoodley
    This piece is much like my dispute with big bully State Farm. I would never treat an insured party the way they have treated me. To me they have acted with total disregard of their mission statement and massive ongoing noble sentiments of television and other advertising about how they are there for those they insure.

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