In order to qualify as a barrister or solicitor in England and Wales one must sit several tough legal examinations, undergo intensive professional training and then prove one’s self during a long period of apprenticeship. Aspiring lawyers are not permitted to speak in court until they have passed through all of these challenging stages over a period spanning at least five years.
In spite of these exacting requirements, the courts are quite prepared to allow unqualified people to represent themselves in court. Indeed, this is becoming increasingly common as a direct result of government policy. This article looks at the problems facing litigants in person and the steps that could be taken to reduce these problems, benefiting both the litigant and the system as a whole.
The Rise of Unrepresented Litigants
Litigants-in-person are becoming increasingly common in the courts. In 2011, for example, research from the Personal Support Unit, a group set up to help unrepresented litigants, reported a 19% increase on the previous year. These figures are guaranteed to increase in the near future.
The main reason for this is the recent reforms to legal aid funding. Fewer types of cases will be eligible for legal aid support as a result of changes introduced in the Legal Aid (Sentencing and Punishment of Offenders) 2012. For example, people with housing, welfare, and education cases will now all be broadly ineligible for legal aid support. Furthermore, reductions in legal aid fees will make lawyers less willing to take on as many cases as before.
As a result, people will have no choice but to take control of their cases themselves. It is therefore wise for potential litigants in person to be aware of what this means in practice.
What are Litigants in Person Required To Do?
Broadly speaking, litigants in person must assume all of the responsibilities of a lawyer working on their case. In practice, these tend to include:
- Case Preparation – thinking about which witnesses to call, writing questions, making bundles of evidence etc.
- Negotiation – discussing offers to settle the case with representatives from the other side.
- Drafting – parties are required to produce formal documents indicating their positions (known as ‘pleadings’). A litigant-in-person would, for example, have to draft their own statement of case or request for information.
- Administration – litigants will be responsible for helping to arrange the dates of court hearings and for the disclosure of documents.
- Advocacy – this is perhaps the most onerous requirement for an unrepresented litigant. The litigant will be required to present all of his or her oral submissions in court.
- Legal Research – while judges will help litigants to understand the law, research may have to be conducted by the litigant into complex areas such as damages and costs in order to satisfy court requirements.
There are consequently a large number of tasks that a litigant-in-person must undertake if they are to represent themselves in court. These skills take years to learn and develop for professional lawyers and it is possible to infer from that just how difficult they must seem to a lay person. It is perhaps unsurprising, therefore, that litigants-in-person tend to create a series of problems in the courts system.
What Are the Challenges Presented by Litigants in Person?
One reason the recent legal aid reforms were so fiercely opposed by the legal profession is because of the likely rise in unrepresented litigants. The legal community was already aware of the problems that litigants-in-person could create in court and feared the negative impact of any increase.
The most obvious problem presented by unrepresented litigants is the risk of injustice following a person’s failure to put forward their case properly. A lay person may lack the skills to convincingly make submissions on the strength of their evidence or to ask the right questions of key witnesses. This can seriously affect chances of winning in court and may sometimes lead to the wrong outcome.
In addition, litigants-in-person inevitably create delay within the system. Complex matters, such as disclosure, must be explained to an unrepresented litigant in detail that would not be required if they had the services of a lawyer. Extra time must be afforded to ensure compliance with directions. More time is needed in order to narrow the issues in a case. All of this delay leads to greater expense and reduces the efficiency of the justice system as a whole.