In what I increasingly start to regard as being the halcyon days of my career, the mid to late nineties, it was relatively rare for a family lawyer to have a case where the other side represented themselves. Litigants in person, as they are known, were few and far between. Legal aid was available for people of modest means, and for those who did not qualify, they would usually use a solicitor. Twenty or so years later, the position is very different.
Legal aid is now severely restricted in family cases to those who are victims of domestic abuse or who are facing attempts by social services to take their children into care. There are relatively few law firms who will undertake legal aid work; I have not undertaken a legal aid case for over a decade, when the combinations of financial pressure caused by low payment rates, combined with bureaucracy was such that I reluctantly decided that I would only act for privately paying clients.
The decline of legal aid has led to more and more people deciding to represent themselves. Law firms have evolved as a result. Many now offer the clients the option of either the traditional full representation option, or a cheaper, but less comprehensive pay as you go “unbundled” option where the client only uses the solicitors as and when necessary for limited amounts of work, but otherwise goes it alone or uses a direct access barrister.
Therefore, nowadays family solicitors and barristers are much more likely to encounter litigants in person in their cases. This inevitably brings challenges of all sorts which you just don’t get when the other side has legal representation:
1. Delay – When the other side is not represented, everything goes more slowly. Court proceedings take longer as the under-resourced Family Court is clogged up with cases where one or both parties are representing themselves. Paperwork isn’t completed properly, if at all.
2. Suspicion – Where one side hasn’t got a solicitor, they are often immediately suspicious of anything that their ex’s solicitor tells them.
3. Non-cooperation – It is not unusual for litigants in person to try to ignore the presence of a solicitor acting for their ex. They try to cut that solicitor out of negotiations. They ignore correspondence because they want the ex to just give up and give in to what they want.
4. They tell their ex that all lawyers will do is complicate matters. That particular claims misses the point entirely that the law is complicated and it is the lawyers’ job to help their clients to understand it and negotiate their way throughout; we don’t make it more complicated. It’s the politicians who are responsible for complicating the law.
5. Allegations – Some litigants in person decide that the best way to fight their case is to make complaints about the solicitor acting for their ex. It has happened to me on a few occasions over the last twenty or so years. I am pleased to say that those complaints were nonsense and were rejected by the complaints bodies.
6. Delays by the court – the court spends startlingly small amounts of time checking the terms of agreed court orders that are submitted to it. Such is the pressure of time on district judges and deputy district judges that paperwork which has taken hours of solicitors’ time to draft and finalise is approved by the court in a matter of minutes. However, where one party is not represented, the impression that I get is that the court spends far more time checking the paperwork rather than assuming that the solicitors have got it right. If the court is concerned that the deal may not be fair to the litigants in person, it may reject the order.
7. Rushing off to court – solicitor have traditionally acted as gatekeepers to the system. We filter out cases that should not be litigated by giving realistic legal advice and trying to negotiate an agreement, rather than immediately opting for court proceedings. Where one or both parties are not represented, court becomes the default option. I have lost count of how many cases I have had where it would be suitable for resolution using family mediation, but where one party will not mediate because they have not obtained legal advice and been advised about its benefits. (To be fair there are still solicitors who do their utmost to avoid mediation and other alternatives to court, but I hope they they are a dying breed).
8. McKenzie Friends – litigants in person are entitled to bring someone with them to court who can provide support for them during any hearings. These people, often friends or family, are known as McKenzie Friends. They are not allowed to act as advocates, nor are they allowed to address the court without the court’s permission to speak. Unfortunately, there are some McKenzie friends who try to present themselves as being a low-cost alternative to a solicitor and who charge for their services. One recent case saw the McKenzie Friend being castigated by the court for describing himself as a “quasi-solicitor”; the judge bluntly pointed out that you are either a solicitor or you are not. Such paid McKenzie Friends should be avoided like the plague; they are untrained, uninsured and unregulated, and they frequently have their own agendas.
These and other problems cause many solicitors’ hearts to sink on occasions. I have heard some solicitors jokingly refer to litigants in person as “irritants in person”, and given how often I receive an unjustifiably rude or antagonistic email or phone call from a a litigant in person, it is understandable why solicitors sometimes feel that way.
However, the reality is that the good old days of legal aid – when people who couldn’t afford a solicitor would get one paid out of public funds and the solicitors and barristers would be paid a reasonable legal aid fee for their hard work – those days are not coming back. There are precious few votes in legal aid. It is a regular complaint of lawyers that, as much as the medical profession considers the NHS to be underfunded, by comparison with the legal aid system and the justice system, it is spectacularly well-funded. Labour has made various promises about bringing back legal aid, but even if Mr Corbyn is ever able to form a government, I am afraid that my view is that after he has met all of his other spending commitments, there will be precious little money left for legal aid. Therefore, lawyers have to get used to working with litigants in person.
There is a regrettable arrogance which sometimes goes with legal qualifications. When I trained, I was taught that if an agreement was reached at court, you then sat down and wrote out the order and got the precise wording agreed at court and then got the judge to make the order. The judge would get the usher to make some photocopies of the approved order and the parties and their lawyers would both leave the court clutching a copy of it. A typed-up sealed order would then arrive in the post a few days later.
In recent years, handwritten orders have increasingly been replaced by typed orders on the advocates’ computers or tablets. |With orders increasingly in very detailed format, the solicitors and barristers agree the terms generally, get the judge’s approval and then retire to their offices or chambers to type it up in comfort, free from having to worry about the laptop battery going flat or the parking ticket expiring.
I think that is asking for trouble; we now get arguments about the fine detail of agreed orders which we never did before, which leads to delays in getting the orders actually approved and sealed. Even more worryingly, I have noticed a worrying trend, where only one party has lawyer, for the lawyer to draft an order and send it to the court for approval by the judge without bothering to show it to the litigant in person on the other side first.
There is now a policy in the Central Family Court saying that lawyers must bring a laptop to court and that they may not leave until the order has been typed up and sent by email to the judge and then approved. Both parties must then be given a copy. This had led to much grumbling from lawyers, but it avoids the danger that orders are made without the genuine consent of both parties to the precise wording of the order.
Finally, a little bit of law is a dangerous thing. Some litigants in person will try and research the law that relates to their case. They generally get the wrong end of the stick. I have seen far too many court documents drafted by litigants in person in which they include vast amounts of irrelevant details or legal argument, often poorly understood and frequently downright wrong. Inevitably, that causes havoc.
Once upon a time you could rely on a judge to be robust about it. I will always recall a civil case in the mid-nineties, when a litigant in person was appealing against a District Judge’s decision. He was, shall we say, a frequent court user and was on the verge of being declared a vexatious litigant by the High Court (in other words, such a enormous nuisance and timewaster that he was about to be banned from starting court proceedings without the court’s permission). We came to court fully prepared to oppose the appeal. I was a mere trainee at the time and I was impressed by the way that the partner acting in the case dealt with the litigant in person. I regarded the litigant in person as a massive pain in the neck. The partner thought the same, but nevertheless treated him throughout with the utmost courtesy and professionalism.
He didn’t get much courtesy from the court though. The judge marched into court, and before he had barely sat down, announced “There are two ways that I can deal with this appeal. I can sit here all day and listen to your arguments and then dismiss it, or I can dismiss it now. I intend to do the latter. Appeal denied.” Then he marched out.
It is, to this day, the shortest hearing that I have ever attended. Sadly, judges just don’t do that sort of thing anymore.
1 December 2018