The plight of the litigant in person

Family Law|March 29th 2016

It comes to something when the plight of the litigant in person in the family justice system resulting from the legal aid cuts makes a headline in a national newspaper. The reason for the headline was the findings of a report into the issue by Citizens Advice.

The report, entitled ‘Standing alone: going to the family court without a lawyer’ presents Citizens Advice research that reviews the challenges faced by litigants in person and the gaps in service left by the abolition of legal aid for most private law family matters. The research explored what people’s experiences are, not only in court but before and after the case, to assess how well current services meet people’s needs.

The findings are pretty damning, and not all immediately obvious. As one would expect, the report finds that the majority of litigants in person find representing themselves difficult, time consuming and emotionally draining. Doing so also leads to worse outcomes compared with those who are represented by lawyers. But there is more: nine out of ten of them reported that the experience affected other aspects of their lives, particularly in four areas:

  1. Their mental and physical health suffered, and existing mental issues grew worse. Some reported physical effects include loss of appetite, sleepless nights and high blood pressure.
  2. The experience strained their working lives – the time taken preparing their case putting extra pressure on relationships with employers. This effect was particularly marked with self-employed people.
  3. Their finances were affected. Some lost working hours (or lost their jobs altogether). There was also the cost of attending court, and simple expenses such as printing documents, photocopying and postage for large bundles of documents.
  4. Relationships with friends and family were put under pressure, particularly when litigants in person turned to them for support.

The report identifies eight ways to improve the process of going to the family court without a lawyer:

  1. Litigants in person need a clear way to navigate through the court process. As things stand at present, many don’t know whether or not they have a good case that they should take to court, what alternatives there are to court and whether they are eligible for legal aid. The report also tells us that lack of clear direction has led to an increase in the number of people choosing not to resolve their family problems at all.
  2. Information should be easy to find, consistent, reliable and user-friendly. Without knowing where to go and what to look for, it can be difficult to know what information to trust. Information may be out of date, biased, incorrect or incomplete.
  3. Paperwork and processes should be designed with the layperson in mind. The right forms are difficult to find and too complex to complete. As the report says, submitting evidence that is relevant, clear and concise is a difficult skill which can take years of training and practice to develop.
  4. The physical court environment must help, not hinder, litigants in person. Many courts are austere and intimidating environments for anyone involved in a case, especially for those in violent, abusive or threatening situations.
  5. Litigants in person need the tools to cope with pre-trial negotiations, particularly when the other party has a lawyer. Effective pre-trial negotiation requires preparation, an understanding of the information a judge will want, knowledge of case law, realistic goals and a clear sense of what outcomes would be acceptable.
  6. Guidance for legal professionals needs universal adoption. The report found that good practice exists amongst lawyers, but is not consistent. For example, many lawyers still use old-fashioned and technical language. There are also of course particular problems for judges faced with cases in which neither party is represented.
  7. People need more information to make the most of lawyers’ services. Legal help may be available to litigants in person, for example pro bono or ‘unbundled’ services, where the litigant just pays for the lawyer to deal with one particular aspect of the case.
  8. Evidence requirements shouldn’t be a barrier to those eligible for legal aid: this is of course a reference to the evidence requirements for domestic violence victims who seek legal aid.

The report concludes with three key recommendations drawn from the above findings:

  1. Reliable advice and information should be provided by a trusted source, both online and in person.
  2. Court reforms should be a catalyst for making physical courts and court processes more user-friendly.
  3. Vulnerable people should receive the support they need to resolve their problems.

Of course, as I have said here before most of the effects of the legal aid cuts were completely foreseeable by the government, and therefore many of the issues referred to above should have been addressed before the cuts were implemented. Personally, whilst I hope that those in power heed the report’s findings, I don’t see any way that litigants in person can be provided with a level playing field, short of the re-introduction of legal aid. Sadly, that is not going to happen, but at least the plight of the litigant in person is being brought to the attention of the general public, many of whom will find themselves in that unenviable position at some time in their futures.

The full report can be read here.

Photo by Jere Keys via Flickr

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Comments(6)

  1. Andy says:

    Typical of the over charging solicitors,with increased court fees that no wonder the lay person who trying to do a divorce as cheap as possible is then crushed by the dated systems and jargon that will baffle most people.

    It’s all well and good this joke of a government in cutting all help and before long we will be conducting pay as you go…
    Then this makes for a “Judge Rinder “farce 30 minute divorce instead of months if not years of legal battles and spiralling costs..yes it will be cheaper to do nothing as in the long run be cheaper but future issues will arise…suppose the clean break option will no longer apply,then this leaves the door open to apply at later stage for other financial attack…
    God help us all..

  2. Andrew says:

    This is interesting:
    .
    .
    “She [a litigant] thinks victims of domestic abuse need a bit more support from the court to ensure they are safe from perpetrators of domestic abuse.
    .
    Many courts are austere and intimidating environments for anyone involved in a case, especially for those in violent, abusive or threatening situations. Security guards, x-ray machines, poor signage, and busy communal spaces can be unwelcoming, confusing and distressing.”
    .
    .
    Security guards and X-ray machines are essential for the safety of all and particularly of people like this litigant. You can’t have it both ways.

    Many court buildings only have one entrance; the parties have to get there through the same streets; the men’s loos are often next to the ladies; if one party finds a conference room that means somebody else cannot have one; if there is only one coffee machine both parties have the same right to use it.

    Not for the first time, I sniff a preference for keeping one party – and guess which – away if the other party does not want to be in the same space. It can’t be done. That nasty Article 6 and all that.

  3. spinner says:

    These are all metaphorical tiny sticking plasters when the patient in this case the family legal system is haemorrhaging blood. An adversarial system designed to have two representatives that will fight their clients case by it’s own definition doesn’t work when one or both sides are not represented.

    Save everyone ten years of pain and cut to what’s going to happen anyway and properly define as in Scotland what is and what isn’t matrimonial property and setup a formula for spousal maintenance as per most of the rest of the world.

  4. D says:

    It’s like the perpetual motion machine delusion.. you never get something for nothing. By cutting legal aid then representation in person was bound to happen. So by saving from the cuts, the representation in person then means expenses increased or wrong judgements by having to allow for representation in person instead of by legal professions. Take from one area it bites you (and everyone) back in another area.

  5. Tony Booth says:

    We speak with many Domestic Violence litigants in person who after their Hearing have to arrange to have Orders and supporting documents served.

    Many by this stage are emotional, stressed and bewildered.

    As John says ‘most of the effects of the legal aid cuts were completely foreseeable by the government’ and we should not have this situation.

    Hopefully some notice will be taken of this Report and steps taken to signpost better the Court process for these litigants in person

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