Our latest Professional Update from the Bar Standards Board tells us that there has been “an unprecedented increase in complaints from Litigants in Person”. The figures are not astronomical at 35 in the year to date, but apparently this is more than the total number of complaints received in 2009 and 2010 combined. The author speculates that “a contributing factor to the rise could be the cuts in legal aid which have inevitably forced more people to represent themselves”, although I’m not sure that there have yet been reductions in scope that would account for this acknowledged rise. The allegations include a significant number relating to “allegations of “misleading the court” and / or “dishonest / discreditable” conduct”.” The BSB refers to the “high level of dismissals” going on to note that 70% have been rejected with 30% undetermined. This, it is said, indicates that Litigants in Person “may not have a clear understanding of the role of opposing counsel and are perceiving legitimate presentation of a robust case as tantamount to making false accusations”. The bar are reminded of the importance of assisting Litigants in Person to understand the court process.
Although it is difficult to draw anything statistically significant from such small figures, I am struck by the fact that, whilst it is not spelt out, 100% of all LiP complaints so far dealt with this year have been rejected. Of course the absence of any successful complaint may be an indicator either of the validity of complaints made (or lack of), or conversely it may be an indicator as to the effectiveness of the complaints system (or lack of). Or both.
However, I do endorse the view that many LiPs find it very difficult to see any distinction between a lawyer putting forward a case based on instructions as to the facts which are disputed by the other party, and a willingness to lie. It may be obvious to lawyers, but it isn’t obvious to many other people. That said, many but not all LiPs are able, when it is spelt out calmly and without hostility, that you are doing a job based on instructions. Once you have been able to separate yourself from your client in the mind of a LiP opponent it is then sometimes possible to build a rapport and to get somewhere. There are other LiPs who, based on prior experience or the allegations concerned in the papers it is inappropriate or unwise to approach outside of court. I don’t talk to any LiP where I consider there to be a physical risk or a likelihood of verbal abuse (general rudeness is par for the course, that won’t deter).
There is a real question emerging for the bar (and for the legal profession more generally) as to how to deal with LiPs and how to discharge one’s professional obligations when they are opposing. In the future when LiPs become the rule rather than the exception, should it be our duty to go the extra mile, to provide free legal education at the door of the court? I know of a number of colleagues who think not. Only recently have I begun to wonder whether I go above and beyond the call.
My colleagues are understandably anxious about the risks posed by encounters with LiPs, and that they will be subject to unwarranted allegations and complaint. They will be all the more anxious I suspect upon reading the BSB update, notwithstanding the rejection rate. The approach I know some colleagues take is to offer two options – 1 talk to me if you are comfortable doing so or 2 talk to the judge. Any attempt at out of court discussion with a LiP is abandoned as soon as any disquiet is expressed by a LiP, or as soon as matters become difficult.
That is the talk to the hand, tell it to the judge school of handling LiPs. And I don’t necessarily think it’s wrong (if done politely). The system may no longer be able to tolerate lengthy to and fro of counsel from client to LiP, coaxing, turning of the other cheek and a still lengthy hearing at the end of it. More often than not it does not bear fruit; it can waste precious court time and lead to frayed tempers all round. Many are the days when a determinedly hostile, rude, bullying LiP who has refused all entreaties to discuss sensibly, who has thrown my documents on the floor and refused to give me copies of his, has transformed into a sweet, tearful, and eminently sensible, open to suggestion, unintentionally unfamiliar with the expectations of court poor love – the very moment the threshold of the judges chambers is crossed. If only the judge knew the half of it…
But of course, they do have some understanding of it. This change in approach is not just coming from the bar. Some of the bench too are taking the in court approach. I was recently appearing opposed by a LiP, and the judge called us in early and indicated that it was “better to do this in court don’t you think Ms Reed?” before taking an hour long hearing and doing the to and fro herself (not terribly successfully as it happens, but that’s another story). She was clearly alive to the risk of disputes arising as to what had been said or agreed outside court.
So it seems to me this is one of the areas in which there needs to be some rebalancing of priorities and of responsibilities. Freeze our pay for years. Cut our pay by 13% this year? Cut it by another 10% next year? Cut legal aid entirely for much of what I do? Cut legal help for those who need basic advice on the family court system and send them utterly unprepared to court where they appear as bewildered LiPs? OK. Your prerogative. It’s your policy Mr Djanogly. We lawyers are just a drain on the system anyway, right? So, I’ll carry on doing my job, and I’ll do it well. But I won’t do yours. I’ll draft orders where appropriate, but I won’t type up and e-file orders that HMCTS are responsible for issuing (and I certainly won’t send a copy to the LiP’s hotmail address, before receiving the inevitable inappropriate emails in response in the weeks that follow). I won’t come to court early in order to aid efficiency, where the court has failed to direct it and where it will therefore be unpaid. And I’ll leave the job of public legal education to the state too.