Litigants in person?

Everybody has a right to a fair trial, however how fair is it when somebody simply cannot express themselves? 

The role of a barrister within court is to advocate for those who cannot advocate for themselves. A barrister, as a highly trained legal professional has all the skills at their disposal to put forward any case in court and put it forward well. They are funded privately, or through legal aid (a public fund, which is slowly descending into crisis, but nevertheless is a pool of funding available to those who cannot afford their legal costs). However, there is a strict test applied to determine whether a person is entitled to legal aid. What, then, happens to people who are not entitled to legal aid, but cannot afford to pay privately for legal representation? They represent themselves.

You do not have to be legally represented in court, you can represent yourself. 64% of people bringing family cases to the court in 2016/17 were litigants in person. This is an extremely high statistic. There are advantages of this of course, nobody knows your case better than yourself. However, there are disadvantages. I have witnessed this myself in my own visits to the courts and it is this that forms the basis of my writing.

Barristers have been legally trained, they undertake learning modules and assessments in advocacy. They have perfected it throughout their many years of practice and they know exactly how to clearly represent themselves. Litigants in person however, regardless of how confidently and clearly they are able to express themselves in every day life are likely to become flustered and unable to clearly put forward their case. It is only natural of course, when you are nervously put in front of a judge in court, arguing your case that you are likely to feel emotional about, that you do not put forward your case clearly because you are so passionate about it and emotionally invested in it that you cannot gather your thoughts. You are likely inexperienced in court procedure and having to take in what is going on around you, negotiate the demands of the judge before you and the procedure of the court. All this before even attempting to put forward your case.

Secondly, a barrister has been studying the law for years. They have studied many general areas of law, and they practice usually in one area. This means that they handle similar areas of law every day, they likely research the area and know the legal tools that are available to them. A litigant in person does not have this advantage. They know their personal circumstances very well, of course, but will not possess the same legal knowledge of a practicing legal professional, it is virtually impossible.

Of course, a Judge is aware of the challenges that a litigant in person faces. They pay particular attention to the litigant in person and often guide them through the process, asking questions to attempt to obtain the information that they require to make a decision. However, despite this, the challenges that litigants in persons face are bound to put them at a disadvantage. If all litigants in persons could represent themselves with excellent legal knowledge, clear advocacy skills and all of the other characteristics that barristers possess, there would be no need for legal aid and the extensive number of rules and codes of conduct which govern the way that solicitors and barristers do their job. However, this is not the case.  If taking a case to court was easy, it wouldn’t need to be taken to court.

Litigants in person then, are always going to be at a disadvantage. Allowing a person to represent themselves is not the same as allowing a person access to justice. The state of legal aid following the Legal Aid, Sentencing and Punishment of Offenders Act 2012, unfortunately does not provide access to legal representation for all and the harsh reality is that sometimes the only option for parties is to represent themselves. This is the heartbreaking truth of the current legal system and the lack of access to justice.

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