Lawyers sidelined by rising tide of lay litigants

Part One of an investigation into the increase of self-representation

Abraham Lincoln, who practised law before becoming the 16th President of the United States, was not impressed with people who represented themselves in court. The old adage: “He who represents himself has a fool for a client,” has been attributed to him.

Most New Zealand judges and lawyers would probably concur, but increasingly more people are being forced, or are choosing, to go it alone in the courtroom - and it’s a worldwide phenomenon. In Britain alone it is estimated that up to 80% of cases in the Family Court involve people who represent themselves. Such are their numbers that the Bar Council has produced a detailed layperson’s guide to self-representation in civil actions, including important points of courtroom etiquette.

The 74-page manual, which was compiled with the help of leading barristers, has helpful hints like: “Make sure you speak loudly, slowly and clearly”. “You might be tempted to speak like lawyers on TV. Resist this temptation. Lawyers do not really speak like that. Some bad lawyers do, but judges hate it.”

People who choose not to use lawyers are known by a variety of terms, such as self-represented litigants, litigants in person, lay litigants or, to use the vernacular, self-reps.

The rise in their numbers is being driven by a number of factors, including legal aid cutbacks, the cost of legal representation and, in some quarters, a distrust of lawyers.

Until now, comparatively little substantive research has been carried out in New Zealand into the scale and nature of this issue. The Ministry of Justice undertook an exploratory study a few years ago and examined eight courts in five cities. It found that the proportion of criminal cases involving self-reps ranged from 1% in Dunedin to 7% in Palmerston North, while their involvement in Family Court cases ranged from 17% in Tauranga to 7% in Manukau.

Drawing on information supplied by judges, lawyers and court employees, the study discovered that while there had been little change in the number of self-reps taking part in criminal cases, their involvement in the Family Court had increased over a five year period. The latter group were typically European males with an average age of 37 who were representing themselves in care-of-children and domestic violence cases.

Waikato dairy farmer Hamish Burdon is fairly typical of this group. Ten years ago the 42-year-old was forced to represent himself in a custody dispute over his two children because he couldn’t afford a lawyer. He had no legal training or familiarity with the court system but he won his case, spurring him on to study post-graduate law at Waikato University.

Today, Mr Burdon is one of many self-reps around New Zealand who are assisting a new study being undertaken by Auckland University law graduate Bridgette Toy-Cronin. Ms Toy-Cronin, who also has an LLM from Harvard, won a New Zealand Law Foundation doctoral scholarship to examine the characteristics of unrepresented civil litigants: how many, who they are, why they are not represented and what can be done to assist them. (www.selfrepresented.org.nz)

On her preliminary findings to date, she says anecdotal evidence suggests the numbers of self-reps are rising. “This would make sense because legal aid has been cut back and there was a recession on, so people were less able to have an income to pay for a lawyer,” she says. “And when the government’s Family Court Proceedings Reform Bill becomes law almost everyone will be required to be self-represented in the early stages of Family Court proceedings.”

Ms Toy-Cronin’s research is also based in part on her own experiences as a litigator when she came across several people representing themselves.

“It’s quite hard to litigate against someone who doesn’t really know the rules of engagement.” She says some of the challenges facing self-reps are difficulty understanding court procedures, how to advance their cases and details of the law. “But the hardest part for them is keeping their emotions out of the proceedings. The old saying is, a good lawyer is one that can keep the emotion out of it, but when you’re representing yourself, you can’t.”

For the moment Ms Toy-Cronin is focusing her research on litigants but she will soon be turning her attention to judges and lawyers and seeking their input.

Taking on the might of the law without a lawyer can be a very stressful business as one Canadian study discovered. Julie Macfarlane, a law professor at the University of Windsor in Ontario, interviewed around 280 self-reps and was disturbed by some of their stories. (http://www1.uwindsor.ca/law/news/dr-julie-macfarlanes-research-on-self-represented-litigants-in-the-news)

“What has surprised me is how traumatised people are by the experiences they’re having, how many lives are getting wrecked, how much anger and frustration there is out there,” she says. “People consistently describe both physical and mental health issues as a consequence of this - everything from insomnia and depression to social isolation. It makes you wonder, given that self-reps are now a majority in the (Canadian) legal system, how much longer the system can hang on.”

Professor Macfarlane says the proportion of self-reps varies, but in the Family Court it is always more than 50% and can rise as high as 80%. “In the civil court, the Superior Court in Ontario for example, I’ve seen anything from 35 to 65%.”

Canadian businessman Jamie Ryan spent $30,000 on legal fees fighting a child access dispute before deciding to take over the case by himself. He says that trying to navigate the justice system without a lawyer is the hardest thing he’s ever done and it’s been deeply disillusioning. “It’s a system that’s just so archaic and detailed, and it’s built around criminality. It’s just a vortex of confusion and delays and expenses.”

Given his views it’s not surprising that many Canadians appear to have lost faith in the justice system. “People are really angry,” says Professor Macfarlane. “What is it, exactly, we are offering people when we say access to justice? If we continue to use it as a mantra without really delivering on it, and we don’t listen to what people are saying, I don’t know where this is going except down.”

She is also critical of Canadian judges who, she claims, give self-reps a hard time in court.

“Most judges believe that if you’re a self-rep, you’re a pain in the ass, you’re going to be really annoying, you’re going to be really unreasonable and they get treated with contempt.

“Judges must change. This is not the gig they signed up for. They signed up for a gig in which they would have nice, respectful, courteous, arcane, legalese conversations with lawyers. They need a completely different set of skills to deal effectively with a (court list) filled with self-represented litigants.”

Of course, this ignores the fact that some self-reps bring the opprobrium of judges upon themselves through vexatious legal actions that would test the patience of Job.   

This article will be continued in next week’s Issue 34 of Law News.

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