With my recent Roman holiday in mind, together with my concern for litigants in person who may not be able to afford legal representation or believe they can do as a good a job as a lawyer, what follows is my latest column for Solicitors Journal.
While I accept that some litigants in person will succeed, I believe that they will only do so because the merits of their case overwhelmingly deserve it. However if a case is finely balanced, it will turn upon the skills of the lawyers ranged against the litigant in person. That person, untrained, inexperienced and unable to argue competently against technical points of law, simply cannot hope to compete.
To my mind the case of N v N, about which I wrote earlier in the week, graphically illustrates my point. I can’t help but think that had Mrs N (the mother of two children) been legally represented throughout, perhaps she would not have been the subject of a section 28(1)(a) bar, and those later hearings could have been avoided.
Only Fools and Clients
The government wouldn’t like us to start pulling our own teeth, so why encourage more litigants in person, asks Marilyn Stowe
There is a well-known saying: “A lawyer who represents himself in court has a fool for a client”. We lawyers know the truth in that maxim. Like everyone else, lawyers do get caught up in the legal system. A few of them, if they get divorced, decide to handle it themselves – even if family law is not their speciality. Many of them discover, to their cost, that they were wrong.
Yes, you may be a brilliant and accomplished lawyer. Yes, you may know all the tricks of the trade. But lacking the skills and counsel of those who practice in the field, and caught up in the emotional roller coaster of divorce, how can you be sure that what you doing is correct? Once you are tangled up in our adversarial family law system, the detached, objective and hard-won skills of the opposing lawyer are trained fully and squarely upon you. What you really need is calm, commercial advice. You need to be defended and protected.
To be fair most lawyers realise this, and to some extent a lawyer can be forgiven for assuming that being a lawyer is a passport to skill in every area of the law, including family law. When events begin to get out of hand, most lawyers are wise enough to take advice or suffer the consequences.
However there is a growing trend for litigants from all walks of life, not just law, to represent themselves. Some do so to try and save costs, although in my experience, this can turn out to be a false economy. Others do so because they believe themselves perfectly capable of conducting their own cases, despite their lack of legal knowledge, their lack of experience and their lack of awareness of the potential consequences.
By removing legal aid from all but a tiny fraction of would-be litigants, the Government is now actively encouraging hundreds of thousands of litigants – the poor and vulnerable among them – to represent themselves. As solicitors, we know what these hapless people don’t: that going into court and litigating without lawyers can turn the courtroom into the Colosseum.
Would our Government advise its citizens to pull out their own teeth? Or conduct their own surgery? They wouldn’t dare. So why is the law any different? Is professional care in law not as reasonable a requirement as professional care in dentistry or medicine? On what basis, if any, does the Government have confidence in the non-existent legal skills of its citizens? How can they possibly think it acceptable for litigants in person, who are new to the law and ignorant of the tactics, of the twists and turns of litigation, to represent themselves in legal proceedings?
I have personally encountered many litigants in person who bear a heavy emotional burden. Armed with books and determined to “win”, they go into battle like gladiators. The case is all about them, their spouse – hated, with or without good reason in many cases – and their children. What happens in court will affect every member of that family for the rest of their lives. So what can a litigant in person count on? The sympathy of the judge? No. The judge may well give that impression. He or she must be courteous. But a judge adjudicates on law, not sympathy or pity.
I took a straw poll of solicitors in the office, all of whom have had recent experience of litigants in person. Every solicitor had a horror story: from interminable hearings that should have taken minutes, to aggressive misconduct by the litigant, to being wrongly accused of bullying before the judge, to the litigant-in-person’s failure to lodge all the requisite documents, or filling them out incorrectly, or refusing to settle on any terms and transforming cases that could have been reasonably conducted and ultimately settled, into stressful, ugly nightmares. The verdict? A resounding thumbs down.