Walking the Labyrinth: Part three of five on the ‘justice gap’ crisis

So why are so many people opting for self-representation? What does this mean for them, and for our justice system?

Being a Self-Represented Litigant

Self-representation seems appealing on the face of it. Theoretically, it gives the litigant total control over the part they play in proceedings, and it keeps their costs down. Most fundamentally, it gets the case in front of a Judge. The Minister of Justice would probably argue that this means that the rule of law hasn’t been compromised; after all, the system hasn’t technically trashed its “ability to hold to account those who break the law.”

Here’s the problem, though – these positives all are based on the assumption that the justice system is an even playing field. The reality is much the opposite. In her Ethel Benjamin Address, Justice Helen Winkelmann described the status quo as an “efficiency deficit”:

The unrepresented litigant has none of the knowledge of the law to make decisions as to how a case should be pleaded, or what evidence is relevant to the case. Even if they have undertaken their own researches and attained some mastery of the law and the process, they are embroiled in the dispute. They will not and cannot have the benefit that counsel has of some level of emotional detachment from the dispute, a key gesture of effective advocacy.

The impact of this lack of knowledge cannot be understated. As much as we talk about justice being accessible to and universal for everyone, the reality is that the justice system is designed to be navigated by lawyers on behalf of their clients. Civil procedure can be dense, complicated and arcane, and self-represented litigants often struggle to access the assistance and legal information they need. Without that assistance, the courts start to look less like a system for delivering justice and more like a gauntlet run.

This lack of understanding can torpedo a litigant’s case before they even get in front of a judge. At the beginning of proceedings, self-represented litigants may miss deadlines, file bloated submissions and fail to present legal arguments – all mistakes that can have unintended and damaging consequences. As Justice Winkelmann put it, “By the time the case comes before the judge the die has largely been cast.”

Bridgette Toy-Cronin is a former litigation lawyer with an LLM from Harvard School. She is currently completing a PhD thesis at the University of Otago titled “Going to Law without a Lawyer: Litigants in Person in the New Zealand Civil Courts.” In a recent LawTalk article, Ms Toy-Cronin explained the emotional and psychological toll this can have on self-represented litigants –

Not everyone finds it unmanageable, but for the most part people find it far more difficult than they anticipated…There are lots of pitfalls for opposing counsel and judges – dealing with a [self-represented litigant] who is emotionally involved in a matter, who doesn’t understand the process, who may feel ganged up on and confused, as well as stressed (as most litigants are, whether represented or not) by their case.

Self-representation can also create power imbalances in proceedings, with a respective risk that those imbalances will go unchecked. Justice Winkelmann describes the very real possibility of a judge failing to pick up on a power imbalance between parties because the self-represented litigant doesn’t know how to bring them to the judge’s attention. These risks are particularly alive in proceedings following the collapse of a marriage or relationship.

But even if that power imbalance is clear and present – for example, in cases where an individual sues the Crown – the amount of time a case spends before the judge is unlikely to provide the judge with enough of a window of opportunity to correct it. These imbalances persist because the system is not friendly to the uninformed user, and often cannot be friendly to that user.

Impact of Self-Represented Litigants on Others

The people left with no choice but to represent themselves aren’t the only ones who suffer as a result of this state of affairs. Courts have to work hard to accommodate these litigants, the vast majority of whom are emotionally invested in proceedings, confused by the process and lacking in legal knowledge and support. It would be unjust for the court to move through proceedings at a pace that alienated those litigants, and the pursuit of true justice inevitably results in a system that moves through its backlog at a crawl.

Toy-Cronin and Dean of Law at Canterbury University Dr Chris Gallavin have also pointed out that judges are overly cautious in dealing with these litigants. As Gallavin calls it

Not wanting to breach the fair trial rights of an individual (plaintiffs and defendants alike) it seems that many judges are prepared to go to extraordinary lengths to accommodate such litigants.

So a tension exists between the judge’s role in civil proceedings, as a passive and dispassionate arbiter, and the need for the judge to “intervene to ensure that the unrepresented party’s claim is not skilfully swept away by the represented party, without the true merit of the claim ever being considered.”

Judges haven’t yet found the best way to negotiate this tension, but they do know that handling it poorly can give rise to all sorts of dire consequences. Too little interference can result in litigants being buried under their own lack of knowledge; too much interference can make the self-represented party suspicious of the court – Winkelmann asks, “What do they make of the court asking the lawyer they are paying to help the party who is suing them?” – and can jeopardise the trial’s fairness.

This brings us to that other key player in proceedings: opposing counsel. Opposing counsel can often find their role compromised when facing a self-represented litigant, as it is relatively common practice for judges to call on them to assist in dealing with the other party. But the ‘justice gap’ goes further than that.

The legal system was built to be navigated by lawyers, and we’re not exactly suffering a lawyer drought at the moment. There are currently 11,930 lawyers practising in New Zealand, with around 1,350 domestic students graduating with an LLB each year and only 38% of those graduates finding employment in their first year after university. The lawyers are there, if we want them.

What we are seeing is a massive unmet need for legal representation, particularly in legal aid cases. Frances Joychild QC vividly describes reality as ‘Dickensian’ –

On a daily basis I clear my email and phone messages or answer the phone to at least one person in dire and desperate need of legal assistance, often with an extraordinary legal problem and always having found no-one to help them.

By the end of last year, I was turning away more contactees than I could help. Like others, I take on legal aid cases and clients who can pay by only small instalment. I also do some pro bono work. However no-one can run a viable practice without a healthy balance of paying clients. In recent months several of those contacting me said they had already tried large numbers of lawyers – from legal aid lists given to them by the Ministry of Justice or from the phone book or internet. One caller told me I was the 20th lawyer he had tried. Often they had already been to a neighbourhood law office but I understand that recent changes mean these lawyers are no longer permitted to represent poor clients – only to advise.

Justice Winkelmann has firmly told lawyers that they should be expected to do pro bono work as part of the everyday performance of their role – “if the profession wishes to retain its preferred status before the courts, its exclusive right of audience, then it must show that the profession continues to lie at the heart of the collaborative enterprise which strives towards providing access to justice for all.”

However, Winkelmann is equally firm in her position that the justice system has been ‘marketised’, and the unmet need for legal representation in legal aid cases is in large part because lawyers simply can’t afford to take on that work. How can you when you work in a system where operational costs are through the roof and legal aid payments barely scratch the surface?

In my next post, I’ll talk about how these problems are coming to horrible life in the Family Court as a result of the recent changes instigated under Judith Collins, changes designed to improve its speed and accessibility.