Do you need a lawyer in small claims court? Absolutely yes. And no.

Last time, we talked about what Small Claims Court in Ontario is (and isn’t).

But the question I hear more often is: If I’m going to Small Claims Court, do I need a lawyer?

The answer – like so many questions of law – isn’t always ‘yes’ or always ‘no’.

The Small Claims rules are written for people without legal training.  Small Claims is intended to hear questions of law and fact in a summary way.  This means that the ‘KIS’ (keep it simple) principle applies.  Most litigants at court represent themselves but some use qualified paralegals, law students and when appropriate, lawyers.

Given the monetary jurisdiction and the limitation on costs to 15% of the claim, it is often difficult to justify hiring a lawyer or another representative to argue in Small Claims Court.

This doesn’t mean there’s no role for legal advice. If you are considering a lawsuit or you are being sued, there is no substitute for an opinion from a qualified professional about procedure, liability and damages. As a plaintiff, do you have a case? What is the value of the claim? Is Small Claims an appropriate venue or is there another way to advance your concern?  As a defendant, do you have your own claim to advance? What defences are available?  For either party, how do I maximize a costs award should I win or minimize the costs payable should I lose?

Many people have a family doctor whom they see for annual an check-up or to confirm the Internet diagnosis of “you should be concerned about this” rash on your foot, or a family dentist for semi-annual cleaning, flossing lectures or Wisdom tooth extraction.  I am an advocate of having a family lawyer.  This is someone who will draw up a Will, help with loan documents to adult children or who can advise on a business structure (or find someone who can do these or more complicated matters).  Your family lawyer can advise of the legal issues people bring to Small Claims Court.  Litigation is not always about the money.  There may be legal or personal principles or a valid business purpose at play in deciding to sue or defend.