How can lawyers learn to love litigants in person?
11 April 2013
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7 October 2013
With Legal Aid being cut beyond recognition, Zoe Saunders takes a look at what potentially lies ahead with the rise of litigants in person
The Government’s evisceration of Legal Aid leaves those of us involved in the court system feeling a bit like the inhabitants of an island about to be hit by a tsunami, watching the sea recede further and further away, powerless to do anything but wonder how big the wave will be and how much damage it will cause.
The tsunami will come in the form of litigants in person who would previously have had recourse to public funding for advice and representation but will no longer have that resource and will have to represent themselves. The damage will hopefully not be loss of life or damage to property, but will be to the ability of the court system to process cases in anything like a reasonable time.
Judges are already expressing serious concerns. See, for example, the comments made by district judge Harold Godwin, president of the Association of Her Majesty’s District Judges. The exasperation expressed by Sir Alan Ward in the first four paragraphs of the Wright case is also well worth reading. But the concerns go to the very highest level of the judiciary, with Supreme Court President Lord Neuberger expressing significant concern about the impact of the cuts.
It may be that mediation will rise up to save us from the worst of this impending tsunami, but I am not convinced. Not because I am not a fan of mediation, but because I know that most of the cases that can be resolved out of court are already resolved out of court and mediators have no magic wand to wave over intransigent parties.
So presuming the dire predictions are right, what can we do about it? And should we do anything about it?
Dealing with the latter question first, both barristers and solicitors are under duties that suggest that we must assist in mitigating the damage. For example the following parts of the bar’s Code of Conduct are relevant:
301. A barrister must not:
(a) engage in conduct whether in pursuit of his profession or otherwise which is:
(i) dishonest or otherwise discreditable to a barrister;
(ii) prejudicial to the administration of justice; or
(iii) likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute;
302. A barrister has an overriding duty to the Court to act with independence in the interests of justice: he must assist the Court in the administration of justice and must not deceive or knowingly or recklessly mislead the Court.
307. A barrister must not …
(c) compromise his professional standards in order to please his client the Court or a third party, including any mediator;
701. A barrister:
(a) must …take all reasonable and practicable steps to avoid unnecessary expense or waste of the Court’s time and to ensure that professional engagements are fulfilled;
708 (conduct in court):
(c) must ensure that the Court is informed of all relevant decisions and legislative provisions of which he is aware whether the effect is favourable or unfavourable towards the contention for which he argues;
Likewise the relevant SRA principles are:
1. uphold the rule of law and the proper administration of justice;
2. act with integrity;
3. not allow your independence to be compromised;
4. act in the best interests of each client;
5. provide a proper standard of service to your clients;
6. behave in a way that maintains the trust the public places in you and in the provision of legal services;
So on the basis that we are all under a duty to help the ‘administration of justice’ what can we actually do?
As a first stop the Resolution Guide to Good Practice on Dealing with Litigants In Person is very useful and not just for family lawyers.
In particular I think that their suggestion that we spend a little time thinking about why a litigant in person is not instructing a lawyer is very helpful. They suggest:
It could be because they:
a. Cannot afford to;
b. Think that matters are agreed or very straight forward so that there is no need;
c. Believe that lawyers are only interested in making money out of their misery; or
d. Believe they are capable of dealing with the matter as well as any lawyer.
…you may not know what the reasons are for them not instructing a lawyer so you should be sensitive to all of the above.
I suspect there will be a huge increase in litigants in person who fall into category (a), but it helps to consider why they are acting in person so that you can modify your approach to dealing with them.
Whichever of the categories your litigant in person fits into, how can we learn to love them? Perhaps love is optimistic, but at the very least I think there are some practical steps that can be taken by lawyers to make dealing with litigants in person a lot easier. Here are my top 10 tips:
- Encourage them to engage with you: explain that they will be assisted by talking to you, that the court will expect you to have negotiated prior to any hearing, etc.
- Set clear boundaries: explain who you are, why you are talking to them and set the parameters of your involvement with them, for example that you can explain the relevant law and procedure but not give legal advice to them, that you can summarise their case (orally) to the judge.
- Start by listening to them: find out what they want or expect from the case. Not only can this save a lot of time, but it gives you a clear idea of their understanding of the case and it is amazing how much more receptive people are once they feel you have listened to their side of the story.
- Bring duplicate copies of any documents to court, together with any proof of service, this will help avoid adjournments in the event your litigant in person doesn’t attend, or claims to have had too short notice of proceedings, etc.
- Always check whether they have handed/sent documents into court: litigants in person are often unaware of the need to ensure documents are served as well as filed.
- Speak in clear English and avoid jargon: it may seem obvious to say but we assume understanding of a lot of basic legal jargon. For example your litigant in person may not understand what ‘directions’ you might ask the judge for unless you were driving somewhere.
- Always check understanding: don’t assume your litigant in person can read, many people who are illiterate or have learning disabilities or severe dyslexia are too embarrassed to raise the issue, they may have forgotten their glasses, etc. Ensure that any agreed order is explained line by line.
- Be prepared to give the court considerably more assistance: ensure that you have all the relevant law, rules and guidance available - the judge may want issues spelt out in more detail than usual. Bear in mind that you may also have to assist with law, rules and guidance relating to the litigant in person’s case as they may not be aware of the issues.
- Check who is coming into court: litigants in person may not be aware that they need to tell you about a McKenzie Friend, or in family proceedings may not be aware that the court hearing will (generally) not be open to the public.
- Never underestimate a litigant in person: treat them with as much respect as you would any other opponent, do not assume that you can ‘get away’ with things because they are in person. Some litigants in person do very diligent research and are well-informed, well-prepared and articulate.
In general I think we can learn to love litigants in person if we take reasonable, practical steps to assist them and the court, thereby effectively assisting our own clients. Making litigants in person love lawyers, on the other hand, is probably a challenge too far.
Zoe Saunders is a barrister at St John’s Chambers