Litigants in Person v Counsel

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.

courtesy of Keoni Cabral on Flickr

TALK TO THE HAND (courtesy of Keoni Cabral on Flickr)

 

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.

22 thoughts on “Litigants in Person v Counsel

  1. If you treat people reasonably and respectfully (even LIPs) then the vast majority of the time you will get similar behaviour in return.

    Sadly many barristers deliberately set out to wind up an LIP, to confuse them and to mislead them.

    I suggest that lawyers are the last people who should be in the family courts where the future of parties precious children is on the line. Often children are treated as commodities and their needs are secondary to the lawyer winning the case for his client by any means necessary.

    In Court yesterday for example a barrister pursued the CAFCASS Officer to spend considerable time alone with her to press the case for no contact and mislead the CO about the background for the case. His frantic and ultimately fruitless attempts to influence CAFCASS and then the Court would have been comical if there were not 2 young children’s futures on the line.

    LIPs need protection from barristers, many of whom will do anything to ensure they please their client and gain further work etc – Sadly the complaints are the tip of an iceberg of dissatisfaction with many counsel’s behaviour at Court.

    I doubt anyone believes in the independence or fairness of the complaints process. Similarly to the solicitors complaints process where their had been a relatively large amount of complaints about lawyers on the year I asked directly the head of the organisation how many solicitors had been removed from practising or otherwise sanctioned because of complaints – the answer was nil.

    The adversarial nature of lawyers is not suited to family courts and crucially to the outcome on children’s welfare. If lawyers want to prove themselves then they should move into areas of law which have far higher standards (criminal and corporate).

    • I think you are unfair on the vast majority of lawyers, who would never act in the way you describe. Family lawyers are more than just adversarial lawyers, and those who are only able to operate in an adversarial style do not get much repeat work. The standards in different areas of the bar are no different, but the skillset required to succeed is very distinctive at the family bar. Most specialist corporate lawyers would perform disastrously in the family courts if transplanted, and vice versa. This does not mean they are not good at what they do. There are those who behave inappropriately and those on the receiving end should be encouraged to complain, and appropriate punishment given. There are instances of members of the bar being disciplined or struck off (including very public ones which have been mentioned elsewhere on this blog), although I can’t immediately think of an example of one being disciplined for her conduct to a litigant in person. This may be as much because of a failure to complain as it is about a failure to deal with complaints adequately once made.

  2. Loo, unfortunately there are ‘groups’ who advocate making complaints against all and sundry because if they don’t, it means they accept that everything said against them is true.

    There are a not insignificant number of LIP’s I know with complaints pending against the Police, their ex-wife’s Solicitor, Barrister, Cafcass and even the Judge.

    Of course none of the complaints ever go anywhere, which only serves to justify their feelings of anti father bias and men hating Cafcass Officers.

    Trying to educate LIP’s is an uphill struggle at the best of times.

    It doesn’t help that the ‘groups’ without exception claim that anyone can handle their own case better than any Solicitor or Barrister.

    I suppose as more LIP’s turn up in court, the system will have to completely breakdown before it can be fixed.

    Swiss

    • Yes, I know. I have had both clients and opponents with complaint-itis. It is, as you say, a self perpetuating cycle. Everything goes to prove the injustice. If the complaint is upheld its because there has been an injustice. If it’s not, it’s because there is no justice. To those coming from a different perspective the making of further complaints is more evidence of the impossibility of successfully engaging the individual with the process and of achieving an outcome they will be happy with. It’s not going to get any better is it?

  3. Following on from your previous book reviews’ how about a review of this weighty tome.

  4. Lucy,

    I think Hyman was against a LiP, which would be a case of a barrister struck off for conduct against a LiP in a family matter.

  5. Hyman is the exception that proves the rule that it is almost nigh impossible to get a barrister struck off for behaviour in and around the Court. It takes a serious criminal conviction to get even the ball rolling….

    If I remember correctly (happy to be corrected) he sent the LIP (anonymously) bogus Case Law via a back street internet cafe.

    Then when the LIP used this made up Case Law in Court, Hyman revealed that it was bogus and blamed the LIP for manufacturing Case Law.

    It was only when the LIP with the help of others traced the email to the internet cafe and the cctv tapes were seen, that Hyman was revealed as behind the scam.

    Even with this despicable and unbelievable behaviour from a top barrister (you could not make it up) against a LIP – Astoundingly he had a plethora of letters of support from those in the legal profession, including from the very top at his trial (looking after their own) saying what a good fella he was.

    If this is what you have got to do to be struck of then no wonder it happens only rarely that barristers are removed.

  6. http://en.wikipedia.org/wiki/Bruce_Hyman

    Crime

    On Monday 6 August 2007 Hyman was convicted of attempting to pervert the course of justice. Hyman had been representing a divorced woman fighting for custody of her four-year-old daughter when he tried to falsely incriminate the girl’s father.

    The father, Simon Eades, was applying for increased access to his child. Hyman had crafted and sent a fraudulent email to the father which appeared to be from a charity campaigning for fathers’ rights and whose content appeared to support the father’s claim that he should be granted greater access to his daughter. When Eades presented the email in court, Hyman accused him of forgery.

    Eades’ own detective work attempting to clear his name led ultimately to the arrest of Hyman. CCTV footage from a computer shop proved that Hyman had sent the email and thus had attempted to falsely incriminate Eades. Hyman’s client denied any involvement in Hyman’s crime. On 19 September 2007 Bruce Hyman was jailed for 12 months at Bristol Crown Court, and ordered to pay £3,000 compensation to his victim. He was released a few days before Christmas 2007 after serving just over two months of his sentence. In November 2008 Hyman was permanently disbarred by the Bar Standards Board.

    At his trial, Hyman produced a character reference from his friend, Sir Mark Potter, who is head of the family division of UK justice. (Hyman had committed his crime in the family court.) A complaint against Sir Mark Potter in this regard is now being investigated by the Office of Judicial Complaints.

  7. Hi. I have had to represent myself in Court and will have to continue to do so in my fight to see my children as the “mediator” has refused to grant me a legal aid certificate. This is because there was an existing contact order, which was broken, that I was seeking to enforce and the mediator assumed he had the right to adjust the contact order. When I pointed out that it was only a Judge who could do that he asked me to leave and refused my certificate. Naturally I complained to Sussex Mediation. So here we are.. I am representing myself and dealing directly with the solicitor for Mother and its actually very enlightening. It’s amazing how they actually evade and questions asked in letters even when I have evidence their client is a liar. I have published the documentation on my blog if anyone is interested? [link deleted] Keep up the good work with this site 🙂

    • I’ve edited your post to delete your name and the link to your blog. Sorry, but I take a fairly cautious approach to material which might publish material contrary to privacy rules. I don’t have time to scrutinise each website people want to link to, so if your blog gives detail about your own dispute I am likely to refuse to link to it or to publish material in comments which may identify you, and by extension your child.

  8. I have to say that some of the allegations made against family lawyers here are unjustified at best and probably arise from ignorance or the vested interests of unqualified laypersons charging LIP’s for their assistance.
    There is at least one charity which frequently advises members to dispense with qualified legal representation and “go LIP” with the assistance of one of their “professional MK’s.” I wonder if it is one of the “groups” referred to by Swiss Tony. I suspect so and would suspect that “Chambers” is one of those who relies on it as his personal cash cow.
    I have also known some to have received the most appallingly misguided and inappropriate advice from some of these individuals. Having ruined their own cases, they then console themselves by writing endless and pointless letters of complaint. I understand that some of these well intentioned but misguided “charities” welcomed legal aid cuts which could be similarly motivated by fiscal self interest.
    Barristers are understandably wary of LIP’s but the majority will behave with courtesy and patience to them and their McKenzie friends, providing they are shown the same.
    It may well be that the complaints procedure is in need of review but, in 5 years I have only known of one complaint that seemed to have any merit and it was upheld.
    The rest arise from an inability to distinguish between a lawyer’s duty to the court and their client and conduct that could be genuinely construed as unethical.

  9. Thanks for providing those figures ref barristers being disbarred out of 20,000? – 140,000? lawyers in all in the UK it appears.

    It’s rather indicative of the problem with many lawyers in they can get rather defensive and personal very easily as ‘Byron Crowley’ has shown in his post. Not what one would expect from a qualified professional officer of the Court.

    • The bar is only about 12,000 strong. And those figures are for one part year, and for those complaints which result in suspension or disbarring. You don’t seem to acknowledge that the fact that the numbers are low may be an indication that generally conduct is of a high standard, whilst the published records of sanctions show that poor conduct is treated seriously and sanctioned appropriately. How many disbarrings WOULD give you confidence in the system? 12,000?

  10. I doubt that any number of disbarrings/suspensions would satisfy those who hold officers of the court in such low regard.
    The idea that lawyers should move into other areas of law that the ill informed perceive to have higher standards indicates a lack of understanding of the different skills required in Family Law. When certain untrained and unqualified individuals find a way to make money from criminal and corporate law, they will no doubt try and advance the argument that there is no place for lawyers in those arenas either.
    Where Family Court proceedings are adversarial in nature, it is almost invariably down to the behaviour of the parties themselves, not their legal representatives who frequently incur their wrath by trying to talk sense into them.
    Family lawyers have nothing to gain and everything to lose by behaving unethically in courts where they will have to appear time and time again.
    The numbers above show just how seriously the Bar takes the issue of genuine misconduct.

  11. I obtained the figures from the Legal Services Board which are from 2008. Did not realise the amount of barristers had dropped in the last 3 years rather than had risen hugely as prior to 2008?

    http://www.legalservicesboard.org.uk/can_we_help/faqs/

    In 2008, in England and Wales, there were:

    16,455 practising barristers. This represents a 39% increase with respect to 1997 (11,819 practising barristers)

    • Well I’m not arguing with the LSB – I was quoting an approximate figure from memory in response to your estimate of “20,000 – 140,000”. I think I had in mind the figure for the self-employed bar (here: http://www.barcouncil.org.uk/assets/documents/Self%20Employed%20Bar%20by%20Ethnicity%20and%20Gender.pdf) It seems that both of your figures was an overestimate and not drawn from the LSB figures you now quote, which are quite different. I doubt the bar has grown much since 2008, I rather suspect it has contracted, so if your 20,000 is an inflationary guess I’d be skeptical. I don’t think the period betwen 1997 – 2008 is at all equivalent to the past few years.
      PS the bar council stats for Dec 2010 bear out my guess – slight contraction if you add up table 1 and table 2 (15,387).

  12. I realise this post is old but, as someone who should have been a lawyer considering I’ve kicked ass against many lawyers/barristers as an LIP (ie, no legal training or experience) I thought I’d comment. In my view, whilst I agree that lawyers shouldn’t be allowed to dictate the welfare of a child, or breath if it was up to me, the problem is wider in that the whole system is wrong and judges are buffoons, so why wouldn’t a lawyer with no moral fibre, soul or conscience want make a tidy profit at the expense of a child’s loss? I wonder, is it not the utter failure of the governments to change the system that creates all the evils associated to the destruction of families and child welfare. If you encourage such crimes against humanity, with enormous financial gain risk free, lawyers are not the sort of people to turn away. In my experience, the business of family law is best served out of a court with an independent body authorised to report and on the basis both parent have equality. If fair and reasonable proposals are set out with one party not agreeing, then it should go to court and the unreasonable party should be considered a risk to the welfare of the child. This would save time and place responsibility on both parents. Above all, instead of parents and lawyers using the system to their personal gain, children will benefit.
    For the record, I spent four years in the high court of justice (ie, Satan’s toilet) upon which was completely unnecessary – I only wanted to have a parenting role with my son.
    From experience, I do not believe it makes any difference being a LIP because a) the system is against you for not being in procession of a vagina in any case b) the system makes no money from happy families and children having fathers c) I’ve yet to meet a lawyer who’s best interest isn’t capitalising on the circumstances instead of fighting for you and your child’s rights first and foremost. If anything, you will save a lot of money being a LIP and surprisingly find yourself making quicker progress. furthermore, though i’ve not read it, I suspect the book ‘Family Courts Without A Lawyer’ is probably a great investment for any father, I mean parent, wishing to see his kids without the legal schmollocks. I commend the author for thinking of us.

    • You’ve “kicked ass”? Constructive attitude there. Did you learn that from lawyers?

      The book does not recommend acting as a LiP, but it does aim to help those who have to do so.

  13. “In my experience, the business of family law is best served out of a court with an independent body authorised to report and on the basis both parent have equality. If fair and reasonable proposals are set out with one party not agreeing, then it should go to court and the unreasonable party should be considered a risk to the welfare of the child. This would save time and place responsibility on both parents. Above all, instead of parents and lawyers using the system to their personal gain, children will benefit.”

    Fully agree Jimbob.

    This would be a good basis for a family law system. No need for lawyers or mckenzie friends in the vast majority of cases then.

  14. I am really not that bothered about whose figures are correct, it was a fair estimate and they were drawn from the LSB website.

    I merely pointed out originally there were probably? now 20,000 barristers which I based on the 16,455 of 2008 stated by the LSB. Who also mentioned that in the previous 10 years to 2008 there had been an increase of 39% in barrister numbers, so extrapolating conservatively to 2011, 20,000 was not an unreasonable guestimate which is why I put ? next to my figures.

    Similarly, with the 140,000? figure, if you add up the numbers in what the Legal Services Board state about 2008 then my figure with ? is entirely reasonable for 2011.

    http://www.legalservicesboard.org.uk/can_we_help/faqs/


    How many lawyers are there?

    The UK legal service sector is a significant employer. In 2008, in England and Wales, there were:

    112,240 solicitors with practising certificates. This represents a 56% increase with respect to 1997 (71, 637 practising solicitors);
    16,455 practising barristers. This represents a 39% increase with respect to 1997 (11,819 practising barristers)
    9,142 practising members of the Institute of Legal Executives (1,642 ordinary members and 7,500 fellows). Most legal executives work for solicitors’ firms, although a few work independently from solicitors;
    906 licensed conveyancers in England and Wales, and around 1,870 CLC students;
    836 registered trade mark attorneys and 1,817 United Kingdom registered patent attorneys
    887 notaries on the Roll; and
    around 800 Law Costs draftsmen, of which around 200 are able to carry out a reserved legal activity.

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