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Going it alone?

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More people are appearing in court without a lawyer than ever before, changing the nature of judging family and civil trials in particular. Stuart Barlow considers how to manage litigants in person effectively

Earlier this year, a senior District Judge expressed deep concern that many more litigants are representing themselves, albeit without the legal knowledge and skills possessed by the professional lawyer. He went on to say that courts are required not only to decide the outcome of a case, but also to tease out from the parties the issues and established facts, ascertain the area of law, and then decide the outcome, following deliberation of statute and common law.

Never underestimate a litigant in person. They can often surprise you in terms of competence and understanding

When parties represented themselves, judges no longer benefitted from lawyers being able to speak privately with their opponents outside court. Those discussions often found solutions to cases to avoid the expense and time taken by a full court hearing. The result is more fully contested final hearings with often less favourable outcomes for the parties.

A greater amount of time is now required to despatch individual cases, placing the burden and increasing the weight of responsibility on the judiciary.

There was a warning that the legal aid restrictions threaten to have far-reaching implications in the way family cases are concluded.

It comes as no surprise that there has been a significant increase in litigants in person. For family lawyers, no one will escape from the implications of this sea change. Experience tells us that almost all family lawyers have dealt with at least one case where the opponent is unrepresented. In the past our hearts would sink at the prospect of facing a litigant in person at court. Now we should prepare for this to happen more frequently. We need to face up to task with due thought and attention, and, if possible, appropriate training. No aspect of family law will be exempt, whether it be financial, domestic violence, children or divorce-related.

I have had to deal with litigants in person in a variety of cases over the last couple of years with a varied amount of success. I would venture to suggest a few thoughts.

  • Be prepared to face a variety of personalities, from the gentle to the needy to the belligerent. It may be that you will not know which description fits your opponent until the morning of the hearing.
  • Almost certainly, there is more work to do beyond the hearing and it often proves costly for your client. He/she should be forewarned.
  • Appreciate that the court will often be more flexible towards a litigant in person in favour of a pragmatic approach.
  • The outcome of the hearing is likely to be less predictable.
  • There will be more contested hearings and appeals.

I now offer a few practical ideas.

1. Encourage the unrepresented opponent to engage with you. This is not always easy or indeed possible. A less combative style is recommended.

2. Take duplicate copies of documents to court with you and be willing to hand copies over to the opponent. They will often have no copies themselves. This goodwill gesture can win them over sometimes.

3. Check with the opponent as to what documents they have filed with the court. You may be surprised by what the court has, but you have not seen.

4. Avoid legal jargon as this may come over as rather pompous.

5. Encourage your own (represented) client to be willing to compromise on minor issues, but set boundaries/limits on what you can do.

6. Check who is coming into court. Opponents often bring a friend (or indeed the whole family) who assume that they can sit in the public gallery. This can save a heated discussion before the judge and avoid a delay in the start of the proceedings.

7. Never underestimate a litigant in person. They can often surprise you in terms of competence and understanding.

8. Give yourself more court time than usual. Don’t arrive a few minutes before the hearing, expecting your opponent to agree to all your demands. That simply creates tension. Arrive at court in very good time, allowing you to be able even to greet the opponent as they pass through security.

9. Tell the opponent in advance what you are asking the court to decide on. Don’t spring surprises. This gives them time to consider and digest the information before going into court.

I should stress that my recommendations alone cannot guarantee success. With some litigants in person, you are in a no-win situation whatever you do. But good preparation may help your case run more smoothly, reduce tension (and there often is much of it) and give you the professional satisfaction that you have done your best.


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