Gallavin on Litigation: The self-represented litigant

By Chris Gallavin

I want to explore what we, the profession specialising in litigation, might take from the anecdotal evidence of an increase in self-represented litigants.

First, let me start by declaring that I have not been able to find statistics on the occurrence of self-representation. While self-representation has been much publicised in the context of changes implemented in Family Court procedures, there appears to be no solid statistics on the (increase or decrease) of the practice of self-representation generally. As it seems as though statistics are kept for absolutely everything these days I am sure that some form of account is kept – if anyone knows where then please email me as it would be nice to avoid having to file an OIA application if possible.

Disastrous

From talking to practitioners and judges it appears that the practice is on the rise but that impression may, in fact, be more about the novelty and seemingly disastrous management of such cases through the civil courts in particular rather than a genuine increase in number.

I say “disastrous” merely because when recounted to me by practitioners each example of a self-represented litigant seems to be accompanied by railing accusations against judges pandering to a litigant who breached every rule of evidence and etiquette known to the hallowed halls of the law courts.

At that stage the conversations usually taper off as each of us recognise the heat in the topic and we quickly move to talking about the weather or the cricket. But I would like to spend a moment talking about the lessons we may learn, good and bad, from what I will presume is an increasingly popular option for litigants.

Likely drivers

It is apt to start with a definition. Self-representation in number one criminal list courts up and down the country is likely unremarkable.

What I am focusing on here is defended hearings in the criminal and civil jurisdictions and an even wider scope of situations in the Family Court.

Let us start with some of the likely drivers. These will include those for whom justice lies beyond their capacity to pay. The deficit between eligibility for Legal Aid and the reality of paying for legal presentation oneself is large and likely places a significant number of “middle class” in an intolerable situation.

There will also be those who believe that they can effectively defend themselves or prosecute or pursue civil wrongs. Within this latter group will be the disgruntled – those who have experienced first-hand what they believe to be incompetence or disrespect from a lawyer.

This group will also include the bush-lawyer, the self-trained internet guru or life experienced all-rounder. The remainder will likely be those driven by all sorts of motivations from serial litigant to the ignorant and anarchist.

Disputes Tribunal

Looking at the civil jurisdiction, the Disputes Tribunal with its increasing jurisdiction and at least some emphasis on the law is, of course, the epitome of self-representation.

Although schooled up by lawyers many may be, the fact remains that lawyers are banished from the sight of referees who are charged with keeping an order in their tribunals any District Court judge would likely feel great relief at having not to manage.

The experience gained through the Disputes Tribunal by the self-represented, often on issues of quite some complexity, might give rise to confidence in filling out the appropriate forms and affidavits when it comes to larger disputes filed in the District Court.

While the cost disparity between the simple structure, quick resolution, and stripped out forms of the Disputes Tribunal and the complexity of the District Court may act as a significant hurdle for the self-represented, the fact that many District Court actions are for relatively modest sums (aka under $100,000) mean that taking an action at all, let alone engaging counsel is an entirely unattractive proposition.

Anything but the most basic of summary judgment applications are hardly worth the effort for actions under $50,000 with the prospect of a full defended hearing only making sense for most actions well above $100,000.

Justice gap

Apart from the willing self-represented litigant there is of course the issue of the justice gap in New Zealand. I do not propose to go over that in detail here as I and others have spoken considerably on the problems associated with a growing gap. As Justice Helen Winkelmann has repeatedly stated, considering the cost of litigation in New Zealand it is little wonder that self-representation has become more popular.

An obvious implication of self-representation for the courts system is one of backlog. Without completing any empirical analysis I think it nonetheless fair to say that self-representation results in longer processes.

This is exacerbated by what appears to be a near universal uneasiness among the judiciary in dealing with such litigants. 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.

I have considerable sympathy for the judiciary in this regard. It must be incredibly difficult to deal with such a litigant fairly while still juggling the tolerable progression of a case and the rights of those others involved in the hearing. I am unaware of what training judges receive in dealing with such cases, but in short, they should receive more support.

Research needed

The prevalence of self-representation in New Zealand is likely on the rise. It is a reality that we must deal with.

It will undoubtedly place a spotlight on many practices and will ensure that standards of (dare I say it) customer service are increased.

Judges and the integrity of proceedings will likely be further stretched and issues of access to justice will be further emphasised in the likely growing number of such cases.

Research needs to be urgently completed on the prevalence of the practice and its implications – good and bad – for the system as a whole.

What I am certain of is that we as a profession cannot pretend it does not exist or merely dismiss it as an aberration or an all-consuming blight on the system. If not careful, we might just find ourselves being caught flatfooted once again if we fail to understand this phenomenon.

Dr Chris Gallavin is an Associate Professor and Dean of Law at Canterbury University. He has published extensively on criminal justice and on evidence and procedure in particular. He is the author of the appellant handbook, Evidence(LexisNexis, Wellington, 2008), and regularly undertakes consultant work in the area of the law of evidence. 

This was first published in LawTalk 860, 13 March 2015.