Litigants in person

As a lawyer who has worked in and around the Courts for most of my career, I have seen a number of litigants in person. For the non-lawyers out there, a litigant in person is a person who is representing himself or herself in a legal case.

I have found many litigants in person very difficult to handle. However, I can’t speak for them all; there may be some perfectly well balanced ones out there. Indeed, there are occasional success stories involving litigants in person. For example, the Gambottos represented themselves in the High Court case of Gambotto, involving oppression of minority shareholders, and were successful. So part of the problem is that Courts and lawyers can’t just automatically write off a litigant in person, and everybody deserves a chance to make their case.

However, the kind of litigants in person about whom I am speaking have the following hallmarks:

  1. An obsessive fixation on their grievance;
  2. A tendency to produce a giant wad of documents in support of their claims (some of which are not at all relevant);
  3. A tendency to file documents which use quasi-legal jargon but from which it is very difficult to glean any real issues. In addition, such documents often have combinations of CAPITALS, underlining and bold text to highlight certain points.
  4. Litigants in person refuse to listen to advice on their claims, and tend to get very angry when someone suggests that they do not have a valid claim.
  5. Litigants in person often have a tendency to generate conspiracy theories as to why they have not been successful in previous Court actions – the most prominent conspiracy theory being that the Court is populated by Masons and that this has somehow affected the judgment of the Court.

Many litigants in person have purported to secede from the rest of the State or the country and to have set up their own country which they say does not recognise the jurisdiction of the Court. Some litigants in person challenge the validity of the State Constitution and inevitably produce documents such as the Magna Carta and the Bill of Rights in support of their argument.

It is a significant problem for Courts and lawyers in dealing with most litigants in person as they take up a lot of time, and can be very frustrating to deal with. Most of the time, the arguments advanced are without any merit, or have expanded well beyond the ambit of the original grievance (extending to suing the lawyers involved and members of parliament). However, Courts are reluctant to dismiss litigants in person without a fair hearing, as it may just be that they have a genuine cause.

Getting involved in litigation is presumably rather fruitless for the average litigant in person. Many of the more obsessive ones seem to have given up any job and devoted their lives to their litigation, which is one of the reasons why they get angry when someone suggests that they have no legal argument – to suggest this is challenging their whole raison d’etre.

I have watched numerous judges listen patiently to litigants in person, then try to explain to the litigant that they have no cause of action. Usually this is met with anger and outright denial. On one occasion, a judge was trying to explain that there was no case, but the litigant in person shouted at the judge “I thought that you were different, but I can see now that you are against me like all the others”. He proceeded to throw all his books and papers on the floor violently, prompting the judge to send him out of the Court. I have heard of other litigants in person trying to attack court staff or police and ending up in gaol. My own emotions when dealing with such people has been equal parts frustration and pity.

What you really want to do is to sit the person down and tell them that there really is no point bringing this grievance before the Court, as there is no law to support their position, and that they are wasting their own time and the time of the Court. Unfortunately, there is no way they will believe anyone (even a High Court Judge). Many of them come back before a Court time and time again, rehashing the same grievances in different forms. The problem is that once they have reached this stage, there is very little anyone can do to reason with them.

I am not a psychologist or a psychiatrist. However, I wonder if there is a way that lawyers and Courts can deal with these litigants to minimise the chance of people turning into litigants in person? I would be interested to see if there are any strategies that can be implemented by law firms and Courts. There are some factual scenarios which seem to be more likely to lead to litigants in person, particularly those which involve very emotional and personal matters (such as divorce, child custody and repossession of a house).

It is important to leave people under no illusions as to the potential consequences of legal action so that they do not go into denial when the unthinkable happens. When in practice, I was amazed at how many people ignored terrible situations until the Sheriff knocked on their door or they were in the witness box being cross examined. Perhaps it’s just human nature. Nevertheless, I maintain that there needs to be better community education about legal matters generally. It is also very important that people have access to affordable legal representation. People lose objectivity and perspective when they represent themselves, and in the extreme case of the litigant in person, they may lose their grip on reality entirely. However, as I have pointed out in a previous post, hiring a lawyer can be expensive and it can be very difficult to know where to turn. Sometimes, also, there is nothing you can do – a client turns away when they are given advice that they don’t want to hear.

I am not sure what the answer is. Any suggestions welcomed!

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5 Comments

Filed under law, litigants in person, society

5 responses to “Litigants in person

  1. cherry ripe

    I think this is clearly a problem that has more to do with the mental health and community support systems than the courts. I do believe that we are gradually losing our ability to help people through difficult times – we don’t have the time or the energy to listen, to sit and to feel another’s pain. We’re all too bloody busy and stressed to pussy’s bow, so we can’t cope with anyone else’s stress, and so a vicious cycle continues. So instead men dress in black shirts and attempt to intimidate judges.

    Maybe these ideas can help: if someone simply misunderstands the situation, or needs an outlet to express frustrations, then lawyers need to be prepared to explain the legal situation patiently and carefully, in language that can be understood, and in doing so put in time to listen (preferably not in billable 6-minute units). Often a person simply feels deeply, gravely wronged, and they need to have that acknowledged – this then becomes confused with needing to have the situation righted.

    However in my experience if it seems, after trying, that a person doesn’t see that they have a problem, the best way of dealing with it is not actually facing them head on (which will only leave them angry and will give the issue oxygen) but telling them that it sounds like a complicated matter and you don’t have the resources to deal with it. Some people “lawyer-shop” just as some “doctor-shop”. A deluded patient and a deluded client will look for someone else to validate their views. In some ways all you can do is prescribe a placebo and head them on their way.

  2. Anonymous

    Have a look at today’s Australian Financial Review. There is an interview with President Maxwell who also recognises the problem. In short the Victorian Supreme Court has just appointed a “litigant in person coordinator”, whose primary role, according to the President, is to manage those litigant’s expectation.

    It is good to see the courts doing something to alleviate the problems. It would be interesting to follow the effectiveness of this role.

  3. Legal Eagle

    Have you read my post on being a party to a legal action? In short, I agree with you that being a party to litigation gives you a very different perspective. I was amazed by how awful the experience was, and how disempowered I felt. And I’m a lawyer – at least I had some notion of what was going on and what my rights were. I am sorry that you suffered the same experience.It is also true that lawyers can have so many cases on the go at once that clients can slip through the cracks. I always tried my best, but it’s a bit like juggling 50 balls at once and trying not to drop one. My desk was always covered in post-it notes – CALL Client X, REMEMBER to file documents etc… Funnily enough, despite all the rubbish that they feed us about “satisfying the client”, the way in which law firms operate often doesn’t promote client satisfaction in many instances.Unfortunately, in addition, sometimes delay is a deliberate strategy used to wear down the opposition, particularly if you are a litigant with unlimited “deep pockets”. The idea is to keep stringing out the litigation and eventually your opponent will run out of money or give up in despair… I have a friend who had a very unsatisfactory experience whereby her solicitors essentially took no action on her claim. By the time she realised they weren’t doing anything, her main claim had expired. She ended up being a litigant in person for exactly the reason you stated: she was in total control of her own case and the evidence and she made it her priority. You may be pleased to know that in the end, she was successful.

  4. Free Thinker

    I have used our legal system (British) over a personal injury case and I can tell you that at the end of it I absolutely loathe lawyers and the system. Litigants start off sane and rational and ordinary but the lawyers and the system will soon destroy that.

    Litigation is like walking through treacle, the longer it goes on, the thicker it becomes. The absurd costs are largely to blame. Who wants to go to court and maybe having to pay 10, 20 or 40,000 pounds at the end of it? Only the lawyers. We don’t want lawyers, we want the courts to facilitate us bringing our own cases, then the issue of absurd costs (and irrationality, anger and insanity) melt away.

    Then there is the issue of delay which increases frustration at an exponential rate. This blame can largely be laid squarely at the feeet of lawyers who having a 100 plus cases on the go at any one time and can’t keep up with the case. Hence the non return of phone calls, delayed or ignored replies to letters, losing documentation and evidence, repeatedly asking for information that has previously been given, etc,etc. An l.i.p. only has one case on the go, is completely in control and knows every detail about his case and knows only one speed to go – fast!

    There are 3 things that make up justice: 1. A fair hearing 2. Negligible costs 3. A speedy hearing. The present system has none these virtues and therefore drives any reasonable litigant insane, especially as the naieve and pathetic litigant has started off brainwashed with the notion that we have the best judicial system in the world, the envy of the rest of the world. He belatedly learns otherwise.

  5. Pingback: More on Litigants in Person « The Legal Soapbox

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