The devil you know
The number of litigants in person is increasing – but remember they're not the enemy, you just need to know how to handle them, says DJ Tim Jenkins
'No more excuses, no no' declares Kylie as she sings Better the Devil You Know: ''Coz I've heard them all before, a hundred times or more.' Lawyers are one thing, but litigants in person '“ I ask you! And with the expectation that our courts will see a steep rise in the number of litigants in person as a result of changes to public funding, the management of civil proceedings '“ family law proceedings in particular '“ is set to become even more difficult. This would certainly be the case for the lawyers involved '“ there will always be at least one presiding '“ but also for the parties themselves.
The increase in numbers of litigants representing themselves and their inability to understand, and so properly prepare for, the trial process, will, in all likelihood, place an additional burden on the judiciary. There is little doubt about this. Equally, every court postbag will contain letters of complaint from litigants representing themselves. Most judges will have heard submissions from such litigants complaining that if they can meet court-directed procedural timetables then so should the lawyers acting for the other party, and that evidence should be disallowed and claims/defences struck out because statements were served late, even though there has been no prejudice or effect on the ability to prepare.
So, while I must not underestimate the difficulties that increasing numbers of litigants in person will bring both for lawyers and the courts, it is equally wrong to automatically react to the presence of someone representing himself with horror.
As you may be driven to despair by a litigant in person's over-meticulous approach, your role is to heed your duty to your client and the court to 'further the overriding objective' and to remind yourself that the litigant in person is not the enemy!
So, perhaps 'better the devil you know' is true. But while you may never be able to echo Kylie's sentiment that 'I can't ask for more, I'll forgive and forget', litigants in person are here to stay.