2014
Self represented litigants: getting a helping hand
Chris Owens / 0 Comments /For non-lawyers faced with a legal problem, sometimes there is no choice but to ‘do it yourself’. But without years of training this can be an extremely difficult and stressful experience. Many cases are lost not just because the person doesn’t have a claim or defence. Sometimes a lack of familiarity with the law and legal concepts can prove fatal to a relatively good case. 
This seems, and is, unfair. But for many self represented litigants, this is their reality. A recent edition of Radio National’s Law Report dealt with the issue of self represented litigants and how they impacted on the courts and other court users. The general message, whether intended or not, seems to be that the problem is really the fault of the self represented litigants themselves.
What are self represented litigants?
A self represented litigant is a term used to describe someone who is involved in a court case without using a lawyer. This means that in court they represent themselves, prepare their own case, question and cross-examine witnesses and make submissions. As funding for free and low cost legal services fall and as population grows, self represented litigants are becoming more common. And the growing prevalence of self represented litigants is causing severe headaches for the courts as they try to figure out ways to assist and guide them, without providing what could be seen as an unjust advantage. But is it a headache of the courts own making?
The courts’ approach to self represented litigants
Although progress has been made, generally the courts do not cater to, or deal well with, self represented litigants. The courts are very much an exclusive club with a membership of magistrates, judges, lawyers and court staff. Outsiders find it difficult to understand the language, the format and most of all the expectations of them when they first step into a court. Magistrates sigh in exasperation as self represented litigants fail to grasp what is (to the magistrate at least) a very simple concept. Lawyers share knowing nods and smiles as yet another lawyerless participant fumbles their way to inevitable failure.
Some courts provide a dedicated staff member to handle enquiries by self represented litigants. Others have resources on hand, such as brochures and fact sheets to assist them through the maze. But most of these fall well short. For example, in the aforementioned Law Report story, Judge Phillip Misso of the Victorian County Court explains with pride how his court provides self represented litigants with an eight minute video that explains “who the plaintiff is, who the defendant is, how you prepare your case, what the expectation is, the things that you should familiarise yourself with, court rules and things of that kind“. All of that in an eight minute video? Even worse coming from Judge Misso is that he believes some of the self represented litigants who come before him actually have cases but because they can’t afford a lawyer, don’t have a legal background themselves, and are unable to properly present or argue their case, invariably miss out! I guess they should have paid attention to that eight minute video.
As a lawyer who appears in NSW Local Courts I see the interplay between magistrates and self represented litigants regularly. Many magistrates have little patience for lawyers, let alone self represented litigants. On a significant number of times I have watched self represented litigants struggle with the concept of cross-examination. A common example might be in an assault case where the defendant is cross-examining the alleged victim, and their case may be that they did not hit them at all. Whereas a lawyer would ask questions like “The defendant did not hit you did they?” or “I put it to you the defendant did not hit you!”, self represented litigants, when they want to disagree with the witnesses evidence, will just tell the magistrate that the witnesses is lying. When this happens some magistrates will invariably say “Put it to the witness”, which is then met by blank, uncomprehending stares. And the magistrate will repeat this phrase as if by saying it over and over will magically alter its incomprehensibility.
“Put it to them” is hardly a phrase used in everyday life. We are all taught that if we want something we ask for it. But few would be taught that if they want a hamburger they need to “put it to the fast food vendor”. Parents, when teaching their children how to communicate will provide examples, like “Say to the nice lady ‘I would like a hamburger please'”. Of course, magistrates are hardly ever the parents of defendants, so the analogy has its limits. Yet either magistrates are so concerned that any assistance beyond the nominal will be seen as favouritism and give the prosecution a reason to appeal the decision, or they have spent so long amongst lawyers that they know no other way of speaking. Probably it’s a combination of both.
Does it have to be this way? Certainly not. There is barely a difference between a magistrate saying “Put it to the witness”, or saying “you need to say to the witness “You are lying now aren’t you?”” They mean much the same thing, but the difference is that only one is comprehensible to average self represented litigants. Yet the courts are loathe to be seen as favouring one side over another.
Interpreting the rules
It’s not just the courts’ language difficulties that cause problems for self represented litigants, however. It’s the complex rules that make it almost impossible for the average person to run their case. In NSW many civil cases are governed by the Uniform Civil Procedure Rules, which are an admirable attempt to place all the various rules relating to starting, running and finishing a case, as well as rules around enforcing judgment. But for the first (and possibly only) time litigant there is far too much information in a far too confusing format to be of any real assistance. For example, what most people about to start a case would really like to know is how to start a case. But searches of ‘how to start a case’ and ‘start a case’ in the Uniform Civil Procedure Rules draw blanks (whereas the word ‘case’ produces 166 results).
There has been a push in recent years to produce legislation in a plain language format, in an effort to make access easier and more equitable. For example, the Corporations Act 2001 has been written in an allegedly plain language format. But even with this important step the legislation is still complicated and difficult to understand.
The simple and unavoidable truth is this: for most people who either want to start a case or are forced to defend a claim or charges, the complex court structures, rules, conventions and language are an almost insurmountable barrier right from the start.
What helps is there for self represented litigants?
To some degree the delivery of assistance to self represented litigants has improved. On the one hand governments and CLCs develop services and resources to assist the unrepresented. For example, the LawAssist* website offers comprehensive guides to self representation in a number of legal areas. It also provides information in alternative formats, including text, interactive guides, flow charts and videos. The Tasmanian Magistrates Court provides a virtual tour, which is a great initiative. Familiarity with the court environment can reduce the stress for some. There are also plenty of written resources (online and available in PDF) that explain specific types of applications. These are made available by various government departments, Legal Aid services, and community legal centres.
Perhaps one of the problems is that all these resources are scattered and not centralised. There is no one location (whether online or physical) that a person can go to for resources to help themselves. A centralised location (in particular online) would:
- ensure self represented litigants could find help with all their legal problems in one location
- avoid doubling up of resources.
How can lawyers help self represented litigants?
It seems counterproductive for lawyers to help self represented litigants. After all, they are usually opponents. Perhaps even more importantly, the better prepared self represented litigants are, the less need there is for lawyers. But this is a blinkered view. More and more tribunals are being formed where legal representation is the exception rather than the rule. And even in jurisdictions where lawyers are welcome the costs exclude many from their services.
Lawyers can help self represented litigants, and in effect open up a new market to themselves. From a traditional perspective, lawyers are involved from start to finish. But lawyers that are only willing to do that limit their clientele. There are those that can’t afford to have a lawyer run their case, but could pay for assistance with discrete tasks. For example, a criminal defendant may not be able to afford say $900 for a lawyer to go to court and talk on their behalf for sentencing. But they may be able to afford $200-$300 to pay a lawyer to write submissions out for them. Then, when they go to court to represent themselves, they can read more or less what a lawyer would have said. For a third to a quarter of the price.
By offering unbundled services to self represented litigants, lawyers can tap into markets that they otherwise would have no access to. However, there may be some resistance amongst the legal profession to offering such services. Lawyers have a duty to the court. Many may feel that they risk breaching that duty unless they are involved in all aspects of a case. Others won’t feel comfortable coming to court for a hearing unless they have been involved in all the preceding steps. Some will be concerned about the risk of professional negligence claims from clients who are not fully informed.
At the moment there is no easy solution for self represented litigants. The various court rules are complex and inconsistent. Magistrates and judges may as well be speaking another language. Resources are inadequate and scattered. And many lawyers are unwilling to provide limited representation. But with increasing numbers of self represented litigants, and ever decreasing funding for services, the problem will only get worse.
In April 2014, the Productivity Commission released its draft report on Access to Justice Arrangements. Our next post will look at the report and some of the draft recommendations.
Owens Lawyers can help you if you have a legal problem but can’t afford full representation. Contact us to find out about our unbundled and limited representation services.
*Disclosure: the author has contributed extensively to the LawAssist website.
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