Tag Archives: litigants in person

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. Continue Reading…

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).

Continue Reading…