Litigants In Person Need You (And Here’s Why)
We have all experienced litigants in person (LIP), they have flooded the system for various reasons (it’s not all blamed on legal aid cut backs), and they affect the daily practice of family law.
How many times do you find yourself explaining to a client that your estimate of how long it will take to resolve their issues are increasingly longer (importantly, even where both parties are represented or using the new online process). Family law professionals and our courts are under pressure with the cut backs they have endured and the rise of the litigant in person.
Ahead of the general election, Resolution have published their Manifesto for Family Justice entitled ‘Fairness for Families’ which includes, vitally to us all, the introduction of the funding of early legal advice. The proposal for funding of legal advice at an early stage of separation, is relevant to every family law professional because despite the more obvious client focussed benefits, this benefits us. LIPs are, in the main, in that position as they cannot obtain legal aid or have the resources to privately fund representation. They affect the full spectrum of our family law system from the early non-court resolution stages and throughout court, and your day to day practice.
I find that one of the most common causes of early tension between separating partners is misunderstanding and fear. At the outset of what is an emotive and stressful situation, not having bespoke legal advice can lead to unreasonable expectations and conflict. Resolution say that “4 in 5 family cases now see one or both parties representing themselves in court”. While I understand that a LIP does not mean they are unreasonable or entirely unadvised, it does mean that someone is trying to do our job without all the legal expertise and experience we have. Not only are they attempting that, they are doing it with all the emotion of their very personal situation in dispute.
Even though LIPs are expected to proceed with their case to the same standards of a lawyer, it’s an unrealistic ask. There is plenty of guidance available to family lawyers in how best to manage a LIP, but having patience, communicating clearly and focussing attention on the right issues, for example, does not always cut through. It is a difficult to explain to a client that their case will probably take longer, be more emotional and stressful, and cost them more because their ex-partner is a LIP. The injustice of this is frustrating to them to say the least.
If we cannot convince the LIP to use and engage sensibly in non-court alternatives to dispute resolution, then cases are more likely to require judicial input and that adds time, stress, and cost to an already heightened contentious dispute, pressure on the courts and on us lawyers. Where appropriate, we recommend the benefits of non-court dispute resolution options, but the LIP doesn’t always trust or respect us enough to take these recommendations at face value and they are not always used or engaged with effectively.
Correspndence with a LIP requires longer consideration and usually comes with increased quantity and length, in addition to phone calls, out-of–office-hours issues, unreasonable stances, unreasonable deadlines, and the knock-on increasing effect of having to relay all this to a client and the stress and cost that causes them. Add this on top of court proceedings, the burden of being for the ‘represented party’, the court delays, the limited court time being taken up by a LIP advocate, and the impression of leniency towards them. I can understand how the represented client feels injustice, which in itself is not resolution inducing and so cases can run on for longer and into court proceedings.
This trickles-down and affects your day to day workload. Other cases are impacted by your time being taken up dealing with a LIP on other matters, court administrative delays, shortages of court time, and lengthy waiting periods.
The importance of being able to make informed decisions and the empowerment it gives people to reach early resolution cannot be underestimated. If court involvement is required, access to early advice will assist in myth busting, setting reasonable expectations and explaining the standards required of a LIP and the risks of pursuing litigation. The charity ‘Support Through Court’ announced the closure of four LIP advice centres last week, and Sir Andrew MacFarlane has suggested that the main family law firms and chambers be asked to contribute to help fund support for LIPs. If as a consequence of the current consultation, Calderbank offers are reintroduced in financial remedies cases, it will increase the need for access to early advice for LIPs to understand the rules and improve the chances of their effectiveness in encouraging settlement.
Download Resolution’s Members Toolkit to see what you can do to help. In the meantime, I have written to my MP candidates and shall continue to use my account @thefamilylawyer on Instagram and my book The Family Lawyer’s Guide To Separation and Divorce – How To Get What You Both Want to communicate to those wanting access to information about private family law issues. I recommend us all getting behind Resolution’s Manifesto.