Resolution recently published a guide for its members to working with LiPs, an increasingly common phenomenon. You can read the guide here.
David Burrows beat me to posting a review of it, and he was rather underwhelmed with the “homely guide”.
It is addressed to the lawyers who are expected now to liaise with LiPs, but its utility will not be just for lawyers but also for LiPs, McKenzie friends and indeed judges and represented parties – in both managing expectations of contact with a lawyer who is the bearer of duties to both client and court, but also in calling to account those who do not meet reasonable standards of courtesy and helpfulness – although the “you” is plainly the lawyer, the language and tone suggests the writers were alive to the fact that this document would be read by lay parties as well as Resolution members. It might in some circumstances be seen as something of a stick with which to beat shirty lawyers, although how effective a stick it might be is less clear. It will most often be a useful reference point when dealing with a LiP who has unrealistic expectations of a lawyer – I imagine that Resolution members will send a LiP to this document to help explain why they can’t (for example) correspond with a McKenzie friend or respond to every email in.
What is interesting about this document is that, whilst its contents will be no brainers to many practitioners, its tone represents a significant shift from documents produced not so very long ago (I am thinking of the Law Society Practice Direction from 2012) from defensive (how to reduce risk and complaint by minimising contact with LiPs) – to reflective and pragmatic (how to progress cases and achieve resolution by trying to find ways of working cooperatively with LiPs) – and from seeing contact with a LiP as in conflict with the lawyer’s duty to ones own client to seeing it as an expression of both the lawyer’s duty to the court and to the client. By way of example take this mealy mouthed snippet from the Law Society document : “Accordingly, whilst it may be legitimate for you to refuse to do so there could be circumstances in which the interests of your client and the court will be furthered by providing some level of assistance, for example in avoiding unnecessary costs being expended in dealing with a misguided initiative“, which seems a rather outdated expression an old skool “bare minimum” philosophy, only two years down the road. It’s modern and more relaxed descendant is perhaps seen in phrases like this in the Resolution document “take care not to give unsolicited legal advice to the litigant in person but think about what information might be helpful for them, including providing links to websites or organisations that may be able to offer them help or explanations about the law or procedures.”
This document is big on encouraging practitioners to think at all times about how their words and actions may be perceived and (mis)understood and as to the need for them to engage with a justice system where LiPs are as much the norm as lawyers. About time too. Many – I hesitate to say most – many practitioners, both bar and solicitor, make real efforts to deal proactively and constructively with LiPs but even those of us who are alert and who make efforts do not get it right all of the time, and there remain still too many who just turn their face away and see LiPs as the problem, and as someone else’s problem at that.
There are a few glitches in this document, for example the text at the bottom of page 8 seems to be cut off in its prime, and some of the hypertext links don’t work. But overall I think it is a helpful reminder of good practice and a useful document to signpost and refer to from time to time. David Burrows complains that it is shallow and lacking in detail – there are undoubtedly difficult topics it does not attempt to cover but the topics (rightly) identified by Burrows are by and large questions as yet without answer.
In future it might be useful for Resolution to publish a version of the guide addressed to Litigants in Person.
Astounding! During this, the season of goodwill to all men (including lawyers) you just can’t resist having another pop at LiPs. Well maybe you need something pointing out to you, LiPs are PEOPLE. Clients are PEOPLE. There’s very little separating them, other than perhaps money and sense.
The justice system does not exists to make people’s lives difficult, it exists to provide them with justice. If the justice system did what it was supposed to do, lawyers would be out of a job. Lawyers exist because the justice system doesn’t work, it fails to deliver justice to the people it exists to serve. That is not something to be proud of.
Lawyers are there to take advantage of the fact the justice system doesn’t work to try to make it more advantageous for their clients. Note I didn’t make the mistake of saying lawyers exist to ensure their clients get justice, because that patently isn’t true. It’s a grubby little business where money talks.
Let’s compare it to another industry which affects everyone’s lives as fundamentally as the justice system, healthcare. If one of these LiPs, or people as we’ll call them, goes to the hospital to get treatment, they don’t expect to have to take their own doctor in order to access medical treatment, they expect the surgeons and nurses to live up to their hippocratic oath and actually try to improve the patient’s condition. They don’t turn that person away because they filled in the wrong form or missed an appointment.
Lawyers think the problem is the people the justice system is meant to serve. In my view that is utterly wrong. If the justice system is so complicated, bureaucratic and steeped in mysticism that it has become impenetrable to the very people it is intended to serve, then it has failed and has become corrupted by those who benefit from it.
The justice system does not exist for lawyers, it exists for the common people. If you can’t deal with common people then you need to ask yourself what you’re doing in the justice system.
Woah there Brian! Take a deep breath and re-read the post, slowly. Nobody is having a go at LiPs, least of all me.
Happy Christmas.
Lucy
“Resolution recently published a guide for it’s members ”
The Apostrophe Police are on their way. Or you can just fix it before they batter the door down,
Happy New Year to you!
Damn you Andrew, you always spot them! Happy new year!
I am concerned by para 21 of the Practice Guidance which suggests that being a close relative of a litigant is a good reason to grant someone a right of audience. I suggest that in divorce it is a better reason not to.
Many divorce litigants blame the in-laws for the failure of the marriage – and some of them are right. To allow her mother, his brother, whoever it might be, to be present – let alone to speak for the litigant – will in such cases only inflame matters.
I think your view would have corresponded pretty much with the default position a few years ago : let em have McKenzies but we’re not so keen on family members. But my sense is that the position on McKenzies is softening – and the need for any assistance is so pressing that judges are now generally more open to the possible advantages of McKenzies – one more pair of hands to note take or remember deadlines and tasks, one more pair of ears who might hear what the litigant cannot – and many now operate on the basis that you can suck it and see. If they misbehave or appear to be a hindrance rather than a help they can be booted out – but to draw on (and reverse) Jackson J’s phrase coined in another context recently I think it is ever more “Why not?” than “Why?”. I think on balance that is probably the right – whilst the unhelpful family member is a real phenomenon which the court needs to be alive to, the supporters and extended family and new partners outside the courtroom can have a significant impact on what goes on inside even if they never set foot in the court building. Sometimes bringing them in to hear first hand what is going on can be hugely beneficial because then everyone is working on the same information rather than preconception or half truths. So it can cut both ways and it feels wrong to presume that the family member will be an unhelpful presence, although in some instances they may.
If it’s not the poor old LiP, it’s their family that’s the problem. In normal court hearings everyone and their dog is allowed, well maybe not the dog. In the secret family courts letting any other family member in is a problem? One more reason to abolish secrecy, let’s have it all out in the open, just as we do in other courts, whether there are children involved or not.
Oh dear Brian. I didn’t say that either. The thing is, emotions often run high and well meaning family members can unintentionally make resolving disputes difficult by contradicting sensible advice, and can actually put their foot in it by saying something that is most unhelpful to the person they are trying to help. We want our loved ones near us for support in times of crisis but in reality they are not always the best counsel. The best McKenzies can remain calm and objective, and it is really hard for family members to do that. If they can, more power to them.
The Practice Direction on McKenzie Friends is inconsistent anyway in relation to family members in that paragraph 6 requires a McKenzie to confirm that he or she has no interest in the case (which a family member surely would be deemed to have) whilst paragraph 21 identifies “a close relative of the LiP” as a circumstances which would justify permission for them to exercise rights of audience, notwithstanding that para 6 would already seem to preclude that.
Thanks for pointing out the glitches in the guide (hanging my head in shame) – we’re getting them fixed!
Don’t be silly! It’s no big deal. Will let people know when its amended. Thanks Claire.
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