The rise of the DIY lawyer

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 removed public funding for the vast majority of private family law proceedings and for some parties to public law proceedings. As a result, there has been a dramatic increase in the numbers of litigants in person (LIPs), which has created a number of new issues.

So, what can both sides of the profession do to adapt to the new legal landscape and rise to the new challenges?

Starting point

Almost all parties to family law proceedings would be better off with experienced representation rather than trying to put their own case. Therefore, when dealing with an unrepresented party,
the starting point must be to explore whether
they can afford some legal help, even if full representation is beyond their means.

Many solicitors now offer a service where litigants can pick and choose what they are willing to pay a solicitor to do and what they are capable of doing themselves. This can be a practical solution and for many ‘the best of both worlds’. However, some firms are reluctant to be on the record without control over the entire litigation and instructing a barrister on a public access basis may be an option in these circumstances.

Many barristers offer a short initial consultation free of charge and even this small intervention can set a previously difficult opponent on the right track. All practitioners should have a contact list of solicitors who can offer a reduced service and a list of barristers who accept instructions on a public-access basis so they can refer opponents in person to these potential sources of help.

The Bar Council has published a free booklet giving advice to LIPs (www.barcouncil.org.uk/media/203109/srl_guide_final_for_online_use.pdf). However, while the Bar Council is undoubtedly well intentioned, the booklet runs
to 74 pages and would demand a level of understanding and concentration beyond
many LIPs.

Is it realistic, for example, to expect lay people to appreciate the purpose and art of cross-examination (pages 26-27) when many practitioners get it wrong, at least some of the time, despite years of practice?

The reality is that, despite the creative efforts of solicitors and barristers to make advice affordable and, notwithstanding initiatives like the Bar Council’s to provide free sources of information, we are going to have to get used to dealing with LIPs who are largely unaware of the court process and have no one on their side to help.

It is vital to be open, fair and professional with both your own represented client and the LIP from the outset. Even the most hostile clients ‘get it’ when we explain that, because the other side is not represented, we are under a duty to talk directly to them and explain the court process. Similarly, many LIPs quickly overcome their initial suspicion when the role and intentions of the advocate are explained to them.

Most unrepresented parties are stressed
and uncertain and therefore likely to respond positively to a reassuring voice explaining in clear and fair terms what the set up in the court room is, what the purpose of the hearing is, what the judge will expect them to do and any legal tests that will have to be satisfied.

Neutral terms

It is important to be honest that while your duty ‘out here’ is to explain the legal process in neutral terms, your duty ‘in there’ is to your client. Most LIPs are perfectly capable of grasping that concept and grateful for the honesty of
the advocate.

For solicitors involved in litigation with an unrepresented opponent, it is enormously helpful to inform instructed counsel in advance that there is a LIP on the other side. If possible, arrange for your own client and the opponent to attend court in good time, as discussions will take longer than with represented parties.

A telephone call or email to the LIP a few days
in advance of the hearing, reminding them of it and checking that they know the practical arrangements, is a courtesy which may pay dividends and avoid wasted costs for your
own client.

Judges should (and, for the most part, do) play a vital role in ensuring that proceedings are fair for LIPs. The risk, counter-intuitively, is that represented parties may end up feeling disadvantaged. There is nothing more frustrating for a privately paying client (who may have real difficulties in paying legal fees but consider it a priority) than to feel that a judge has bent over backwards to ensure a LIP has had their say at the expense of hearing from the privately paying client’s advocate.

This occurs when unrepresented parties are allowed to speak out of turn and interject during court proceedings, while represented parties are told by the judge that they must communicate through their advocate who, of course, will wait their proper turn to put the point that their client is bursting to get across there and then. It must be right that judges take time at the beginning of a hearing to set out the format, who will speak, when and, if necessary, for how long.

It is always helpful for a court to inform a LIP of how it proposes to deal with the application before it. In circumstances where, for example, an unrepresented party sends numerous letters, thus increasing your client’s costs, ask the judge to set out at an early stage that there can be costs consequences for vexatious or unreasonable litigation conduct.

LIPs rarely understand the need to be open with disclosure and proactive in trying to limit
the issues and, again, these explanations are better coming from the judge rather than the represented parties’ barrister, given that ‘the other side’ may be seen to have a vested interested in such matters.

In the long term, it seems inevitable that the entire conduct of cases involving unrepresented parties may have to change, with judges adopting a more inquisitorial role, as currently happens in some small claims. This is especially so in cases where neither side is represented.

In the short term, judges and practitioners will have to develop a degree of patience and adopt an increasingly relaxed approach to procedure and etiquette. SJ

Top tips for dealing with LIPs

• Ensure you have the correct contact details for the other party and check with them that addresses are secure and that confidential documents will not be read by third parties.
• Stress to them that proceedings are ?confidential and that they must not discuss them with anyone other than close family ?and legal advisers.
• Guard against your own client being penalised by having to pay additional costs because the court imposes obligations on you, such as providing bundles or writing to experts, when the burden would ordinarily fall to the (unrepresented) applicant.
• Last minute or late correspondence is only likely to exacerbate any difficulties with communication and you cannot assume that a LIP has the same instant access to email, for example, that a professional opponent does.
• Identify to the court that time estimates for hearings need to take account of there being an unrepresented party.

Make sure that a LIP understands at an early stage that:

• Litigation need not be combative and, even though you are on opposite sides, your duty to assist the court and not mislead it means that you will not be trying to trick them.
• The LIP must comply with court directions ?and, for example, obtain evidence by any date ?given, as the court will only adjourn for a very good reason.
• The LIP needs to ensure the court has their correct contact details.
• If they provide statements from others, they must make sure the witnesses are available to attend court at a final hearing.
• The times at which they must send correspondence and that they must send you a copy of everything they send to the court.

 

Catherine Mason ?and Stephen Brown are members of the family law team at ?Sovereign Chambers in Leeds ?