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Officialdom’s advice to lawyers: be nice to litigants in person

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Legal profession kingpins advise qualified advocates that it’s not a good idea to swear at irritating members of public representing themselves

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In the world of bureaucracy, the current triumvirate lording it over lawyers in England and Wales has set a new gold standard for waffle.

The organisations representing solicitors, barristers and legal executives yesterday released a 28-page set of guidelines advising hard-pressed lawyers on how to deal with the growing hordes of litigants in person that are cluttering the courts.

But any lawyers with enough time on their hands to plough through the advice are probably not spending that much time in court in the first place. So to assist busy advocates, Legal Cheek has boiled down the core elements.

To be fair, the crux of the guidelines from the Law Society, Bar Council and Chartered Institute of Legal Executives amounts to little more than common sense: explain issues clearly to litigants in person, and try to be civil to them.

“Avoid any technical language or legal jargon,” reads paragraph 21. Likewise, lawyers should “explain jargon where it cannot be avoided: a LiP who is already feeling at a disadvantage may be further intimidated and antagonised by the use of such language”.

Moreover, lawyers should “take extra care to avoid using inflammatory words or phrases that suggest or cause a dispute where there is none, or inflame a dispute, and avoid expressing any personal opinions on the LiP’s behaviour”.

In other words, avoid turning towards a litigant in person and smugly saying: “Oi Muppet — you call that cross-examination, do you … ?”

The guidelines also ominously warn lawyers that “correspondence and telephone calls from some LiPs may be emotive, repetitive, and potentially hostile”.

While 28 pages might seem slightly excessive to remind legally-qualified advocates that not behaving like pompous twats is probably the best course of action when dealing with distressed and disorientated members of the pubic, there might be a broader agenda afoot.

With legal aid eligibility squeezed to the point where even those kipping beneath Waterloo Bridge don’t qualify, lawyers will increasingly encounter litigants in person floundering around before judges.

Perhaps today’s manual will be tomorrow’s required reading on the advocacy elements of the Bar Professional Training and the Legal Practice courses.

Read the guidelines in full below:

Litigants in Person Guidelines for Lawyers – 1 June 2015

27 Comments

Not Amused

They need to be banned.

There is a problem with access to justice. That problem is not made better by hiding it and papering over the cracks. LIPs are a dangerous disgrace. McKenzie Friends are actively evil. The regulators should spend time lobbying and/or solving this problem.

To instead produce pages of waffling patronising gubbage is highly offensive. How dare the BSB lecture me on how to be understood or how to avoid jargon. The BSB took a straightforward handbook and turned the entire thing into indecipherable regulatory gibberish. There is a very good argument that the current code of conduct cannot apply to me until it is written in a language which I can actually understand.

Every day I think I couldn’t hold these people in less contempt. Has no one ever told them that “it is better to remain silent and be thought a fool than open your mouth and remove all doubt”???

(11)(11)

Anonymous

‘They need to be banned.’

Now, if we were in a situation where anyone can be represented by a competent lawyer regardless of whether or not they can afford it, I would agree. Are you suggesting, though, that people who cannot afford a lawyer should not be allowed to speak in court? I can see how that could rapidly mean a U turn in the approach to legal aid because of the sheer quantity of injustice that would occur in a very small space of time, but somehow I don’t think that you would be willing to be one of those sacrificed on the altar to secure radical change…

(6)(2)

Quo Vadis

The Government wouldn’t sweat very much. We would get universal state-funded “representation”, which would be shit, partisan and possibly little improvement.

(0)(0)

Pedant

Don’t you mean you hold them in “more” contempt?

(2)(0)

Not Amused

No. But I think both phrases work. Just that, like all lawyers, I prefer double negatives.

(1)(4)

Anon

“Every day I think I couldn’t hold these people in less contempt” means you don’t hold them in contempt at all, and that as each day goes by you hold them in higher esteem.

I think what you mean is “every day I think I couldn’t hold these people in greater contempt”.

(3)(0)

Not Amused

No. I don’t think that is true.

“Every day I think I couldn’t hold these people in less contempt” could mean either; 1) I hold them in such high regard that I cannot imagine that regard ever diminishing, or, 2) I hold them in such contempt that I utterly hate them and because I am a good person, I try, but fail, to hold them in a lesser state of hatred than the one I started with.

“every day I think I couldn’t hold these people in greater contempt” could (equally) also mean two things. It could mean 1) I hold these people in really high contempt and it could not get higher; or, 2) I consider these people so virtuous that I cannot conceive of ever thinking of them with contempt.

So neither phrase is right, both can be wrong. Because what I meant was that I hated them. Now that was clear from the rest of the text. It would have been clear whether I had said I couldn’t hate them ‘more or less’. Neither is right. Both are acceptable. My meaning was clear.

(2)(5)

Anonymous

So clear that you needed four paragraphs to explain it.

Just admit it – you made a mistake.

(0)(0)

Not Amused

I do actually make a horrendous amount of typos and mistakes on LC (I’ve also admitted being wrong, but tetchy, on this very story). The typos are probably related to the volume I type and the speed at which I type it, the fact I’m not paid for this; and technical stuff like the crazy spell check or my phone’s dictatorial predictive text regime. However, I was perfectly right in my use of language and even though I knew this would rapidly become a lesson in “why do I bother”, I replied to the original incorrect claim because it gave me the opportunity to write in detail about how much I hate the regulators. It is extremely difficult for me to resist any opportunity to convey my contempt for them.

I regret nothing. Even if you now go on to make endless crazy assertions, even if you descend in to frothy mouthed wig hating loonery, I still regret nothing. At least I got to say how much I loathe the regulators one more time.

(0)(3)

Anonymous

Good politician’s answer Mr Amused (i.e. side tracking after making an obvious mistake).

(0)(0)

Anonymous

Outlaw the right to represent yourself? Radical.

(1)(0)

Anonymous

Mr Not Amused does not work. He or she is always on here. Feel sorry for them.

(0)(0)

Not a lawyer

I’m not the sharpest knife in the box but how do you ban a litigant in person?

(2)(1)

Not Amused

You take away their right of audience.

If you wanted to counter me, you should have taken the more legitimate route of saying “that’s a bit harsh”. It is a bit harsh. But I’m getting fed up of the ‘let’s encourage LIPs’ agenda being rammed down my throat.

(7)(4)

dave

Is that a NES in the background of that picture? and some CDs? Get some more up to date pics LC!

(0)(0)

Anonymous

Def not a NES – a NES wasn’t top loading and had different connectors on the controllers.

(3)(0)

Anonymous

Ok just looked again, the one underneath is a NES – but what is the one on top?

(3)(0)

Anonymous

Ok just looked again, the one underneath is a NES – but what is the one on top?

(0)(3)

Anonymous

The top one is an American Super Nintendo

(0)(0)

Sandman

There are decent LiPs who simply can’t afford an attorney and are doing their best to try and represent themselves.

Then there are the LiPs who, although lacking much in the way of legal understanding, have sufficient low cunning to throw a spanner in the wheels of justice.
“I never received that order”
“Nobody told me I was supposed to submit my documents by that date”
“I did submit my documents, I handed them to his secretary, honest…”
“I was in court – they told me to go to court 2 – I was sat there the entire time waiting, and now you’re saying I should have been in court 5”
(when the judge has changed between hearings) “last time Justice wotshisname told me to do X” – you respond he certainly didn’t, and of course the court notes are illegible.

and the old classic,
(producing a letter from a solicitor) “I’ve instructed a lawyer but they’re not available to attend today…” – the matter is adjourned, and naturally no lawyer turns up next time either.

and then of course you get to trial, often without them providing the witness statements and disclosure they were ordered to give, and they’re introducing all manner of undisclosed material, without prejudice offers, scandalous hearsay and generally wasting time.

Some judges see through this, others give them chance after chance after chance. Meanwhile your own client is racking up bills and seeing no progress.

And you’re supposed to be “understanding” ….

(11)(1)

Not Amused

And it is deeply unhelpful to have your regulator produce lengthy notes saying “be nice”. We were being nice. We are being nice. How dare they assume that we aren’t? I am good at my job and I resent being patronised by people who are demonstrably bad at their own.

(3)(1)

Anonymous

And therein lies the crux of the matter – you’re unhappy with the powers that be first and foremost because they’re attempting to cover their own inadequacies by giving you “handy” hints.

However, at least in the current environment where legal aid isn’t available in many situations, barring LiPs is denying some people (particularly the poor) access to justice, which is fundamentally wrong. I could get behind an argument that, for example, McKenzie Friends should, as a bare minimum, at least be third-year law students, but you can’t deny an individual access to justice on the basis that they’re poor.

(1)(0)

Not Amused

Yes, I probably did go too far.

But in this age where access to justice is getting worse, I see earnings in legal aid slashed and the regulators respond by growing their own cost base and charging more. Instead of actively campaigning or achieving anything, I see the regulators coming up with ‘handy tips’ on how to help the government ignore the problems it has created.

(3)(1)

Not Very Amused

Not Amused posts and puts it beyond doubt again …

(9)(1)

Anonymous

Litigants in Person cannot be stopped.

McKenzie Friends ought to be banned. Most of them are great examples of how a little bit of knowledge can be dangerous. If they want to become regulated and qualified then they are welcome to go down the ILEX route and take out insurance.

(3)(1)

The Wolf

McKenzie friends are not so popular in my antipodean jurisdiction but they do pop up from time to time, often in employment matters. I find them particularly helpful as they tend to blurt out things that are damaging to their “friend”‘s case (for example, the reason he didn’t mitigate his loss by applying for new jobs is because he’s too ill to work at all) which I can then seize on (for example, by pointing out that they’ve in fact suffered no loss).

At that point they generally do my work for me and bully their “friend” into accepting any settlement offer I put in an attempt to hide their glaring incompetence.

(0)(1)

Not Amused

I agree with you that McKenzie friends are often damaging to their own case. However I think that is another reason to ban them. It’s not a good thing to win because the other side has a crazy mad representative – you may disagree, but it just doesn’t sit right with me.

(0)(0)

Comments are closed.