Lawyer 2B’s tame barrister explains the intricacies of practice. This issue: litigants in person
It’s easy to become frustrated with litigants in person (LIPs). I have been guilty of it myself. Various hearings against various LIPs had convinced me that they do not know what case they are bringing, they cannot plead, they produce documents like rabbits out of a hat in the middle of a trial, they are rude at court, they do not understand civil procedure and they do not understand that I am only doing my job.
But that all changed for me recently, when speaking to an LIP at court just before we were about to go before the judge. This man was twice my age, clearly very bright and had previously been brimming with confidence. But on that day, he looked at me wide-eyed and terrified. “Be gentle with me,” he implored before we went in. Later he told the judge that he wished he had never litigated. He was ultimately a nice man. My heart broke for him.
Since then, I have a new-found empathy with those individuals who arrive at court knowing nothing. And I have come up with a set of pretty fail-safe rules to follow whenever I feel myself slipping back into cynicism.
Always get to court early to give you extra time to have any discussions with an LIP and explain fully (in layman’s terms) any documents. That way, when the judge says: “I’m sure Miss Tandy will have explained it to you,” you won’t have to shake your head and fight the urge to hide under the table. If there’s the slightest hint that your LIP doesn’t understand something, don’t ignore it – go over the point again. If in doubt, you can mention the issue in front of the judge, which will usually prompt them to check that your opponent understands it.
It’s also a good idea to explain very briefly what will happen when you get into court. Basic details such as who will speak first and how to address the judge can help put an LIP at ease.
But be wary of your opponent asking you for advice. They might not realise what they are asking, and will often ask you in a question that sounds as if it is actually about something else. If you’re in any doubt, you must politely explain that your professional obligation is to your client and that you cannot assist.
The judge will often make allowances for an LIP’s lack of knowledge of civil procedure, particularly if you are on the small claims track. That means technical points, for example about your opponent’s pleading, are unlikely to be well-received unless the issue prejudices your client’s case to such an extent that the litigation cannot be effective.
In the same vein, LIPs will not necessarily know the rules about cross-examination. They may well interrupt you, ask you questions when they are in the witness box and make speeches when they should be cross-examining.
Frustrating as these things can be, if you take a belligerent stance it can look as though you are trying to bully your opponent. Much better to say calmly and politely that you understand they have lots of points they would like to make, and their day in court is, of course, their opportunity to do so, but you would find it very helpful if they could wait for you to finish asking your question before giving you their answer.
You should take particular care to put your case fairly against an LIP – but be careful not to go so far in assisting your opponent that you do a disservice to your client.
If that sounds like a difficult balancing act, it’s worth brushing up on the Bar Council code of conduct. You should also take the most detailed notes you can of everything that happens on the day (whether in front of the judge or not). If there is an appeal or a complaint made against you to the Bar Standards Board, you don’t want to be faced with trying to reconstruct the trial from a single page of impenetrable scrawl.
Finally, do not underestimate a LIP. I have seen several who have been very impressive indeed. You would be a fool to presume they will give you an easy ride.