Thursday, October 13, 2011

Will the rise of the litigant in person mean poorer justice, as well as more delay?

A story in the Gazette today, and in particular a comment upon the story, has got me wondering whether the increase in litigants in person may not just increase delay for all court users, but also reduce the standard of justice.

The story highlights research by the Personal Support Unit, which indicates that the state of the economy has already led to a dramatic increase in the number of litigants in person, even before the proposed cuts to legal aid, which will surely cause another huge rise. The story refers to the previous article by one of my former local district judges Peter Glover back in August, when he warned that more litigants in person will threaten the county courts with additional delays.

However, what really got me thinking was a comment upon the story by 'DomCoop'. He/she says that litigants in person frequently fail to comply with directions, produce worthless documents that contain nothing more than a rant, and fail to properly reply to questions raised by the other side. I'm sure that all family lawyers have experienced these things. The problem arises however, as DomCoop says, when the court "inevitably overlook all the failures to comply", making the proceedings a lottery for the other party, with the actual case being run only coming out during cross-examination at trial.

I can't recall myself coming across a situation where the court lets a litigant in person 'get away with it' in this way, but I can imagine the temptation for courts to allow such things, as they try to progress matters without yet more delay. And that temptation will surely get greater if the numbers of litigants in person continue to rise.

Don't get me wrong: I have nothing against litigants in person, but they must not cause opposing parties to be at a disadvantage, in addition to having to suffer increased delays.

11 comments:

  1. litigant in person13 October 2011 11:59

    This is an interesting post. My recent experience tells me that the rise of litigants in person means that legal representatives will exploit the lack of knowledge of the LIP. So, as well as litigants in person not complying with the rules, there is going to be a rise in those representing the other parties ignoring the rules safe in the knowledge that the LIP won't know what to challenge or how.

    I have experienced this first hand in the employment tribunals and in the court of protection and see no reason why it's not likely to be the case everywhere.

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  2. Hmm, positively exploiting LiPs is quite wrong, and should be reported to the court, if the LiP should become aware of it.

    (By the way, I like your name. Are you a professional litigant in person?)

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  3. answer to the title... 'yes'.

    the fact that a lip may well come out with little more than a rant is imho largely the result of ignorance of procedure. until i trained i had a view of the courts and courtroom procedure that i imagine many intelligent, sane lips have. i assumed they would work on logic (perhaps i fell into the trap of expecting 'good old-fashioned common sense' to carry the day) and where about a search for the truth.

    now that i am a legal professional (dog help me) i am better informed. i know that certain things must be done and certain things said (or not said) in certain ways. i know that any search for the truth is low on the list of priorities. courts and those running them are conditioned to ask certain questions and expect the answers to them in a particular format.

    great for certainty - where professionals are involved. shit for your average lip.
    and it's the reason why most counsel can be delightful to lips and do all the stuff our professional code expects of us safe in the knowledge that however honest and intelligent the lip, however strong their case, procedure will screw them up good and proper - so of course we don't need to (even if we were low enough to do so - and i imagine some are and some aren't - it's like life, really; we all vary).

    the one thing that will give a lip a chance is their understanding of procedure and 'court culture'.

    i have seen judges bend over backwards for lips (and i think they should - if you can't make your case against them even with the court compensating for the things they inevitably don't know, then perhaps your case is not worth making or you need to get a different job).

    so, no, i disagree that counsel will disregard procedure because the court will pull them up on it (rightly). but i agree that more lips will be the result of the wicked cuts and that this is bad because people need lawyers like they need doctors. not because the professionals are better or cleverer but because in the peculiar setting of the court most people will do better if their case is put by someone who works in that environment every day. and of course more lips is bad for the system (important only because we all pay for and rely on the system and it will thereby become slower or less fair) and bad for justice because when you don't know what points the law thinks matter you don't know how to structure your argument.
    that's why everyone needs access to a god standard of representation free at the point of delivery.

    we are prepared to pay for a nhs (by and large); we should pay for a national law service too. interesting that the right to a fair hearing is enshrined in law but the right to medical treatment irrespective of whether we can afford it isn't; yet we provide the latter and deny many the means to achieve the former.

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  4. I have come across this in AR proceedings.

    No form E produced, no replies to questionnaire, a wasted FDA and still the judge refused to make a costs order against the LiP even though he produced an invoice to show he'd received minimal legal advice. (Surely filing of a Form E would have been advised).

    I came to the conclusion that in this case my client was probably better off acting for herself so that they both got the same treatment from the judge..

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  5. Very interesting. Thanks for that.

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  6. if anyone (apart from you john, obviously) bothered reading my somewhat lengthy comment all the way through (i did and felt a bit tired at the end) i imagine they will have realised that i wasn't insisting that:

    'everyone needs access to a god standard of representation free at the point of delivery'.

    i think merely a good standard of rep should be enough for anyone. wonder how god would do as a lip tho...

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  7. I'm sure you provide a god standard of representation, SW.

    I wonder what kind of oath god would swear before giving evidence: "I swear by almighty me... "

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  8. LOL, I think that's funny. I swear by almighty me, :-). Reminds me of some of the oaths around my divorce.

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  9. god would probably affirm. he has never been that sure of his own existence.

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