In his first annual report senior Law Lord, Lord Phillips of Worth Matravers, has "accused people who represent themselves in court as wasting judge's time". It is inevitably true that litigants in person do place a greater burden on the court in terms of the time that is required to deal with them. This is no doubt because lay people, representing themselves, often have little appreciation of what is relevant and what is irrelevant to the determination of their case. Why would they? They're not lawyers. Furthermore, given this failure to understand what issues the court will be able to make judgments upon, litigants in person often seek to address all sorts of issues, no matter how inappropriate. After all, they have got their day in court and they're going to make the most of it. Does this justify the criticism levelled at litigants in person?
Anyone who has sat in court and watched a litigant in person conduct their case may be forgiven for feeling a little bit exasperated and having some sympathy with the view that they waste the court's time. I have witnessed a few and they are generally pretty hopeless. That's no great surprise. Those of us who are qualified to stand up in court on behalf of others have worked long and hard for the privilege. It would be completely unrealistic to expect anything much of a non-lawyer conducting litigation on their own behalf, in which they have a vested interest and no real understanding of the underlying legal issues. However, the reason many people choose to represent themselves is because they either have no money to pay for expensive legal representation, or they have previously had legal advice / representation but have received such a poor or inadequate service that they have voted with their feet and decided to go it alone. If this is so it's the system itself which needs addressing. It's no good complaining about the detriment to the court system caused by those who represent themselves. There needs to be a system of funding which enables people to get proper legal advice and representation in the first place as well as a system which provides an incentive (by way of severe sanctions or penalties if necessary) to ensure that those who do hold themselves out as providing legal services are actually competent to do so.
Anyone who has sat in court and watched a litigant in person conduct their case may be forgiven for feeling a little bit exasperated and having some sympathy with the view that they waste the court's time. I have witnessed a few and they are generally pretty hopeless. That's no great surprise. Those of us who are qualified to stand up in court on behalf of others have worked long and hard for the privilege. It would be completely unrealistic to expect anything much of a non-lawyer conducting litigation on their own behalf, in which they have a vested interest and no real understanding of the underlying legal issues. However, the reason many people choose to represent themselves is because they either have no money to pay for expensive legal representation, or they have previously had legal advice / representation but have received such a poor or inadequate service that they have voted with their feet and decided to go it alone. If this is so it's the system itself which needs addressing. It's no good complaining about the detriment to the court system caused by those who represent themselves. There needs to be a system of funding which enables people to get proper legal advice and representation in the first place as well as a system which provides an incentive (by way of severe sanctions or penalties if necessary) to ensure that those who do hold themselves out as providing legal services are actually competent to do so.
4 annotatio:
As someone who has represented a number of LIPs (at a later stage, ,e.g. appeal, obviously) I think that Phillips has blown a fuse. Lips are there largely because they can't obtain representation; either at all or at an affordable price. The solution is, as you say, to have a properly funded legal aid system or compel people to buy legal insurance or for the judiciary just to fucking deal with it.
There is of course no single category of LiP. Many are undoubtedly there because they cannot afford representation and neither Legal Aid nor a CFA is available or suitable. Most of these are dealt with in the lower courts or in family matters, I suspect, and usually dealt with courteously and competently in my limited experience.
There are undoubtedly some who have had poor or inadequate service from lawyers, but I suspect that the majority (not all, by any means) of those who say this is the case have fallen out with their solicitors/counsel because the lawyers insisted on telling them things they didn't want to hear.
I often deal with new enquirers and there are a largish proportion of callers that begin by bemoaning the failure of anyone else to take the matter on. But when the caller is pressed for detail, it rapidly becomes clear why - there is no case (or it is hopeless) and they have been (repeatedly) told this by previous lawyers. They usually want help with their appeal, having lost.
This category and the category of the obsessed, for whom the case is the chance to right every wrong that life has dealt them and for which someone must be to blame, I suspect make up the majority of the LiPs that the higher courts encounter - just stand in the queue at the RCJ Admin or Appeals Court office on any working day to see what I mean (I do realise counsel doesn't do this sort of thing, ever).
Lord Phillips, I imagine, bases his comments on the higher courts' experience. He is wrong, but I can see why he came to that conclusion.
Of course proper legal aid would help - it used to cover more than half the population when introduced. But realistically, that just ain't going to happen any time soon, if at all. In the meantime, there will be an increasing number of LiPs.
You have got me thinking whether there is something that I could do, though...
"You have got me thinking whether there is something that I could do, though..."
NL, I have visions of some magnificent altruistic gesture on your part - shall we see headlines announcing the emergence of a great philanthropist in pursuit of justice for the masses at some point soon?! Joking aside, something radical needs to be done if justice is not going to become (if it has not already done so) the preserve of the monied classes...
"Who was that masked trainee?" Heh. Nothing so dramatic.
I was toying with something more like 'Nearly Legal's cut out n keep guide to being a tolerated trespasser', or some such, based on the non-lawyer searches hitting my site. It is not just conduct but content of the law that is a problem for LiPs after all.
I work in legal aid, so you can take my view of the restrictions on access to justice as read.
Post a Comment