Using a solicitor can be very expensive. Wherever possible, you are of course better off with a solicitor acting for you in a divorce or separation, but some people may have no alternative to representing themselves. The law refers to these people as Litigants in Person (sometimes abbreviated to LiP).
Here are my Top Ten Tips for LiPs in no particular order:
- Are you sure that you want to be a LiP?
You may of course have no alternative. The withdrawal of legal aid from most types of family case has left many people with no other option. However, if you can afford a solicitor, you should get one.
Representing yourself when you do not have to is often a false economy. Without a solicitor, you may get things badly wrong, embark on a course of action that will be doomed to failure and end up costing yourself more in the long run. You will probably also experience much higher stress levels as you try to make your way through a legal system which lawyers have been specially trained to navigate.
Don’t try to go it alone unless you have to.
- Get legal advice early on – and keep getting it
If you can’t afford to use a solicitor to handle all of your case, at the very least you should see a solicitor as early as possible to get some initial advice. It can be difficult to pick up the phone to a solicitor for the first time. Some people fear that it will escalate a dispute or that they may receive unwelcome or unpalatable advice. I entirely understand this; I don’t like visiting the doctor, because I am always worried that the doctor will tell me that I am seriously ill, but of course, if I am ill, I really need to know as early as possible. You need to know what your legal position is.
You will find it difficult to find a solicitor who will give you free legal advice. Those that do offer a free brief chat are not likely to be able to give you advice that is specifically tailored to your case, and it’s unlikely that you’ll find out anything that you cannot look up on the internet for free.
However, many solicitors will offer a discounted initial consultation for much less than their normal hourly rate. If you can’t afford much, you should at least pay for this. It will be money well spent.
Then, if you need further advice later on, you can always seek it, even if you don’t instruct the solicitor to handle everything for you. Later advice is unlikely to be as cheap as the initial consultation and you will probably have to pay for the solicitor’s time at their usually hourly rate. It will still be good value for money.
Many solicitors now offer an alternative to the traditional business model by offering services on a Pay As You Go basis (also known as unbundling). Instead of getting the solicitor to do everything, you can instruct the solicitor to do limited pieces of work for you, such as advice sessions or drafting legal documents for you.
For example, if you reach a financial agreement with your spouse in a divorce, it is absolutely essential that you ask the court to make a financial consent order as part of your divorce. Without this, no agreement is legally binding or enforceable. If you have to share a pension, it will be impossible to implement without a financial order containing a pension sharing order. If there is no clean break order, you will be at at risk of further financial claims being made against you in the future.
People who handle their own divorces often overlook the need for a financial consent order. Those who realise that they need one are highly unlikely to be able to draft it themselves; it’s a complex task, as the orders are bespoke. You can instruct a solicitor to draft the financial consent order for you on a Pay as You Go basis.
You are likely to have to pay for this in advance.
- Direct access barristers (also known as public access)
It is now possible for LiPs to instruct barristers to act for them directly, rather than through a solicitor. This is not the same as instructing a solicitor. A direct access barrister will not handle the whole case, but they can give specialist advice and represent you at court. Again, you are likely to have to pay for this in advance.
Direct access barristers mesh nicely with using a solicitor on a Pay As You Go basis. You could get initial advice from a solicitor and instruct him or her to draft an application or a witness statement and then instruct a direct access barrister to represent you at court.
- Avoid McKenzie Friends
Some LiPs will use the service of McKenzie Friends in court. A McKenzie Friend is someone, usually a friend or relative, who can be present during court hearings to provide reassurance and support.
There are so-called “professional” McKenzie Friends, who charge for their services and who promote themselves as being a cheap alternative to a solicitor. “Professional” McKenzie Friends are unqualified, unregulated and uninsured. They are by and large charlatans who frequently have an axe to grind. I have even encountered McKenzie Friends who are deliberately vague to their clients about what their legal status is. I recall one where a party was under the impression that his McKenzie Friend was a solicitor; falsely holding yourself out to be a solicitor is a criminal offence. They should be avoided like the plague.
- If you need representation, don’t leave it until the last minute
It is common for LiPs to feel increasingly anxious as the court date approaches. As the dreaded hearing comes nearer, some LiPs start to feel that perhaps it would be sensible to be legally represented at court after all.
If you try to instruct a solicitor at very short notice to appear on your behalf at court, you run the risk that you will be turned away. There is a great deal of work involved in preparing for a hearing and the solicitor may simply not have enough time to prepare. In most cases, you will receive many weeks’ or months’ notice of a hearing date. Don’t wait until a few days beforehand to find a solicitor.
- Keep copies of the papers
It is surprisingly frequent for LiPs to not appreciate the importance of keeping copies of papers sent to the court. I never cease to be amazed by LiPs who don’t bother keeping a copy for themselves. You need to keep a copy that you can refer to.
If you decide that you want to be represented or to get legal advice, the solicitor will definitely want to look at the papers and it is much harder for him or her if you have not kept a copy.
8. Don’t expect your ex’s solicitor to advise you
LiPs often find themselves up against a spouse or former partner who is legally represented by a solicitor. Your ex’s solicitor is not going to help you or give you any legal advice. They should act fairly and should never mislead you or exploit your lack of legal knowledge, but the reality is that if you ex has a solicitor and you don’t, you will be outgunned.
In cases where the other side is a LiP, I sometimes find that LiPs think that it is my job to point out the flaws in their case or any failures to comply with the rules. Depending on the circumstances, if it is in my client’s interests to do so or to assist the court, I may be prepared to tell a LiP where they are going wrong, but I am under no obligation to do so most of the time. I am definitely not going to give them legal advice; I am not permitted to do so.
You should also try to be civil to your ex’s solicitor. It is common for LiPs to regard their ex’s solicitor as being in some way duplicitous or dishonest. In fact, the vast majority of solicitors are decent, honourable and professional. They are simply doing their jobs properly.
- Comply with the court’s orders
The court will make directions orders during a case, setting out steps that the parties must take, such as filing statements and other evidence. Too many LiPs do not bother to comply with those directions, and run the risk that the court will make an order that they then must pay their ex’s legal costs as a result.
Other LiPs will comply, but only just. For example, it is all too common for LiP’s statements to be lacking in detail, or alternatively to be ridiculously long and yet still failing to address the points that has directed should be in the statement.
Some LiPs seem to misunderstand what a court order is. I have had many conversations with LiPs who tell me that the court has “advised” that something should be done. I have to rather bluntly point out that the court has not advised them to do something, it has ordered them to do so. Orders must be obeyed. Compliance is not optional.
It is vitally important that you do what the court says. If you need help to do this, consider using a solicitor on a Pay As You Go basis to do the work necessary, such as drafting your statement for you.
- Don’t rush off to court – try alternatives to court
Finally and perhaps most important of all, think about using alternatives to court. Going to court should usually be the absolute last resort, save in cases where emergency action is required. There are many better ways to resolve a dispute. The main alternatives are:
Some of these involve using a solicitor, but will still be much cheaper than instructing a solicitor to represent you in court litigation,. They also tend to be much faster than the court and have many other advantages, such as preserving your ability to communicate with your ex about your children.
It should be stressed that these are alternatives to court, they are NOT an alternative to using a solicitor.
Jon Armstrong 14 June 2020
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