Go Solo To Gain Tactical Advantage?

A letter to the Law Society Gazette last week from a family solicitor suggested that the represented litigant is now at a distinct disadvantage when appearing opposite a litigant in person. Caroline Goorney wrote that:

courtesy of p2-r2 on flickr

A playing field (courtesy of p2-r2 on flickr)

“The rise of the litigant in person is an inevitable fact of life, but their favourable treatment by the courts is beginning to ring alarm bells. While the judiciary are rightly seeking to ensure a ‘level playing field’, my recent experience is that the represented litigant is now at a distinct disadvantage when appearing opposite a litigant in person.

A procedural hearing that should take no more than 15 minutes can now take twice as long, as the district judge patiently and laboriously explains each and every step to the litigant in person; a case listed for one hour can take two, while the litigant in person wastes time in obfuscation and irrelevancies.

The district judge, fearful of an appeal, is often more lenient and generous to the litigant in person than to the representing solicitor; rules are sidelined and breaches overlooked. And all the while the paying client observes in wonderment as his or her legal adviser is repeatedly told to stop objecting, and their original costs estimate quietly doubles.

I am seriously considering advising some of my clients to attend court in person when faced with a litigant in person, so as to ensure a truly ‘level playing field’.”

There are in essence two points here:

  • that the cases take longer by virtue of the twin facts that more needs to be explained to the litigant in person and that the litigant in person will himself take longer to explain his case to the court, and
  • that the court is more lenient i.e. gives favourable treatment to litigants in person.

The consequence of this, it is suggested is that the costs of the paying party are inevitably increased.

I understand where Caroline Goorney is coming from. It can be frustrating (both for lawyer and client) to have done everything by the book and to find that a litigant in person can waltz into court, present a mountain of unseen documents to the court and make hitherto unalluded to points and generally dominate the court process.

But I have to say that in general terms my experience is that the courts are pretty flexible with all parties in terms of procedure, whether represented or not, and that particularly since the introduction of the FPR are not minded to run cases with undue reference to technicality. It is in fact often a litigant in person who will wish to complain about a technical breach of the rules where a solicitor has been slightly late for example in serving a statement on him. It cuts both ways.

In my experience the courts are, where appropriate, willing to say “Enough! You will comply with direction X or the consequences will be Y.”, to say that a litigant in person has had quite enough time, quite enough slack to have been expected to have prepared his case. They will even make costs orders against litigants in person where appropriate. And whilst most judges will strain to be polite, to allow a fair hearing, to allow a litigant to expand even his most bonkers points, they will proceed to make a decision based on the respective strengths and weaknesses of the evidence as presented to the court. That is to say that whilst procedurally the litigant in person may be given the benefit of the doubt, the substantive decision will ultimately be unaffected by their status as such.

It does take longer, that is inevitable. And sometimes that will increase the costs. However where a fixed fee is being charged for attendance at a hearing (as it increasingly is) or where the advocate is paid via legal aid, the costs of attendance are likely to be the same (unless of course the hearing runs into a second legal aid “unit”). However, overrun in cases is not limited only to cases where there is a litigant in person. Difficult legal representatives, or even just diligent ones, can raise issues or pursue arguments that take up more time than anticipated. They may do so properly or improperly, sometimes “having a go” at running points that they would have been likely to drop if there had been a sensible word from an advocate on the other side: “Come on. Are you really going to run that? Can you take your clients’ instructions”? It cuts both ways. Where there is likely to be an increase in costs is in correspondence and in bundle preparation, and in all probability a higher number of hearings over the duration of a case.

But the point is this: whilst a represented party may be frustrated, put to greater expense or generally disadvantaged by the involvement of a litigant in person, a litigant in person is rarely going to secure a positive advantage by virtue of being unrepresented. For all the leniency that a court may adopt in its approach to a litigant in person, for all the efforts to level the playing field, a litigant in person is still likely to be flailing around making the best of a bad job, having palpitations in the toilet cubicles, bumbling on about irrelevances and failing to put forward their killer points. I don’t call that a litigation advantage.

Whether or not electing to act as a litigant in person is a useful strategy for those who can afford it is a difficult question. It is in my view rather speculative and risky to say that one might get a bit more of a sympathetic approach from the court if the lawyer is dispensed with. It may well backfire in any event if it is obvious to the court that it is a mere device. It may be a necessary evil for a litigant who has a limited fund and who may need to pick his battles – I often advise clients that it may be better to save their funds for a particular hearing if they cannot afford representation throughout. But that is not the same as saying that there is an advantage in going it alone. The lawyer at court is not just a cipher, who can translate a client’s case into palatable and clever phrases for the judge to sign up to. The lawyer at court is an adviser, a negotiator, a buffer between hostile parties. Their task may be harder where the other side is a litigant in person, but it is a valuable service if it can be afforded.

 

 

 

7 thoughts on “Go Solo To Gain Tactical Advantage?

  1. Of course, what we are looking at is a gradual transformation of the Courts into clones of the Small Claims Court.

    Soon non-legal ‘bucket shops’ will proliferate to advise the litigant in person how to go about their business in court. And firms of solicitors – some with a century or two under their belt – will find themselves relegated to the roll of cut-price jobbers, out to provide representation at bargain basement prices.

    How long before horse-hair and archaic costume are consigned to the dustbin? Legal oratory, replaced by the ‘cor blimey’. And judicial officers doubling as Law 101 tutors?

    Ask not for whom the Bell tolls….

  2. After helping as a Mac Friend for nine years my perception here in NZ is that an in depth knowledge of the law isn’t that important more important is an understanding of the system and processes.
    Any cases that our group deal with are generally done and dusted much quicker than those who employ lawyers.

  3. […] of the judiciary trying to help but getting the balance wrong is covered in my recent blog post “Go Solo To Gain Tactical Advantage?”). For the judiciary to send out a signal that they could in any material way ameliorate the problem […]

  4. This article is complete nonsense, and was written with a very obvious agenda.

    The article seeks to silence any complaints that might surface about the highly unequal playing field and sexually discriminatory nature of legal aid.

    Little wonder that the author uses “he” to refer to the LIP.

    Anyone with a year or two of experience will be able to recite stories and stories of how LIPs are routinely taken advantage of, manipulated and cheated in so many ways by opponent solicitors.

  5. As far as I can see, all the authors here conscientiously avoided designating the LiP as male or female.

    Does anyone know why we are now supposed to use the term ‘self represented’ btw? Is it in the Rules somewhere?

    • Julie I think it’s the term coined by the Civil Justice Council in their report on the matter last year – that’s when it really seemed to catch on, as if Litigant in Person was somehow discovered to be impenetrable latin – self-represented is meant to be more accessible to the self-represented.
      PS If the original article doesn’t use “him” it must be me who is criticised, because I did (although I often use “her” on this occasion I used “him”, which in point of fact is still more likely to be right than not since there are (in my experience) more male self-represented than female).

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