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:
- An obsessive fixation on their grievance;
- A tendency to produce a giant wad of documents in support of their claims (some of which are not at all relevant);
- 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.
- 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.
- 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!