Too Many Court Cases. Not Enough Lawyers? Problems in the Courts
It is very difficult to find clear statistics but most Lawyers will agree that in recent years – and in particular following the Court procedure reforms of Lord Wolfe and continual cut backs of the availability of Legal Aid there are increasingly cases dealt with by the Courts in which one or both of the parties are representing themselves. The Courts are very busy places – the lists are over-subscribed and waiting lists only get longer.
The obvious need is for Judges to come in to Court fully prepared, after having read written pleadings which clearly identify what facts are alleged and what legal consequences are alleged to flow from those facts according what laws of England and Wales [or whatever country is involved]
Then the function of the Judge, in the absence of a Jury, is to listen to the evidence whilst witnesses explain what has taken place – listen to questions being asked of these witnesses in order to challenge their version of events and after that, to decide what is true. Having made that finding the Judge goes on to state what consequences follow from those facts when the law has been applied to them.
When cases are properly prepared by Lawyers before any hearing in Court then the Court hearings can be short and productive and indeed often such cases are settled because when Lawyers are involved they will point out to the parties the foolishness – as a case in the papers showed today – of spending say £500,000.00 in costs for a dispute about who should repair a leaking gutter which would have cost £7,000.00 to mend.
Of course Lawyers are expensive and these days legal aid is rarely available – Lord Woolf identified in the 1990s that our Court systems were then too complex and his reforms have changed the procedures root and branch.
However if the Courts procedures were too complex that in my view was less than half the problem.
The fact of the matter is that nothing that Lord Woolf has done has made the actual Laws of England any less complex and it seems to me that the consequence of making Court procedures easier has been almost to encourage Litigants to attend the Court in person without Lawyers [whom they cannot afford anyway as Legal Aid for them, for you and me, doesn’t really exist anymore].
Therein to my way of thinking lies the problem. Without a Lawyer the Litigant does not know the law. Once his grievance has arisen he will go to the Internet and try to find out what is the law as it relates to his case.
The analogy to my mind is that of somebody who finds a lump under their skin – going to the Internet is likely to re-inforce their pre-existing position – that they have a cancer.
So somebody who already thinks they have a legal grievance which the Law can remedy will only find encouragement in this from the internet because that is all that they will be looking for.
So what is happening these days is that without any legal advice or assistance from Lawyers but with the mindless encouragement of Internet “research” egging them on, some Litigants are attending the Courts in person with blind, perhaps obsessive, belief in their case and no adequate preparation of it whatsoever.
Mr Justice Holman is quoted as to the predicament that the Judge then finds himself in – “he has no assistance from learned advocates who have researched the law. He has no expert witness evidence of any kind – he is unlikely to have even such basic material as a chronological index or an orderly bundle of documents or a summary of the case and still less any kind of skeleton argument as to how the case fits into the framework of relevant laws. Instead he the Judge has simply to rummage through the inadequate documents which have been supplied and do his best to reach a fair and just conclusion.”
Another difficulty the Judges have is of course they cannot behave towards Litigants in person as concisely as they would to experienced Lawyer Advocates.
A brief “You do not need to continue” addressed to the professional Advocate will be understood as an indication that the Judge accepts the point being made and does not need to hear any more on that subject. The same words addressed to a Litigant in Person will more likely be perceived at rudeness at best but probably be understood to mean that the Judge does not agree with anything that has been represented to him which only goes to encourage the Personal Litigant to speak at greater length!
Furthermore Judges hearing Litigants in Person are forced to listen to what may be nine parts claptrap because there is always the possibility that among it all is actually one part disclosing a genuine and arguable grievance requiring the Court’s remedy. Because really there is no way to ensure that an untrained and possibly inarticulate Litigant has actually explained his whole case other than by listening to everything he has to say until he stops talking!
A consequence of this [what Lord Woolf did not expect?] is that cases where there is no professional Solicitor or Advocate present are taking what – Ten? Twenty? times as long as they used to when there was proper representation.
There is a link here to an academic paper which highlights many of the problems.
It concludes “The nature and intensity of their [Litigants in person’s] participation; the struggles they have comprehending law and procedure; and the importance of ensuring that substantive justice is done in our Courts suggests that unrepresented Litigants need help far more than they need approbation.”
To which in my abrasive way, I say – Durr – you think? Maybe they need – Oh what’s the word – Representation? And Legal Aid to pay for it?
On a lighter note sometimes there is a good deal of humour to be derived. At the end of this Blog is a link to a case in Delaware USA in January this year in which the Judge congratulated the Plaintiff appearing in person for a written application which in his words were
“in my experience a unique example of the Pleader’s art. It cites to the epic of Gilgamesh, Woody Guthrie, The Declaration of Independence, Noah and the great flood. Game of Thrones, Star Wars Episode 5 The Empire Strikes Back, Star Trek, President Obama and Euclid’s proof of the Infinity of Primes among other references: it is well written and compelling.
“It can be faulted only for a single – but a significant – shortcoming – in that it fails to state a claim on which the Court could grant relief”
As amusing if not fantastical as the case is and I think it is well worth clicking on the link and reading it [the Claim being that Disney Film Studios for undisclosed reasons of its own is obstructing Mankind’s access to flying cars thus stalling the evolution of Human Transport on this Planet.] –– the fact is that days if not weeks of the Courts time were wasted in bending over backwards to deal with an entirely spurious claim in which a person wishing to develop a flying car has sued Disney for failing to enter into contractual relationship with him for the purpose.
The obligation of Disney to do so according to his claim is the fact that they were willing to talk to him once on the telephone about his idea before rejecting it and telling him not to phone again!
In the course of the litigation the Court had to consider the relationship between Companies and their employees, Companies and their duty to their shareholders, employees and their duty to their employers, the rules of service of documentation given that the Company resides in Delaware whereas one defendant resides in California and the Plaintiff himself in New Jersey so that questions of jurisdiction arose – consideration was given to the American Law of breach of Judicial Duty, the finer points of the Court’s rules on service of documents and upon the rules generally of contract including the distinction between express contract, implied and implied-by-fact contracts and the operation upon those definitions of the doctrine of Promissory Estoppel.
None of these days wasted in learned consideration and exposition of the law would have been required if Lawyers had represented the Litigant in Person.
I think in the Delaware case the Judge enjoyed himself thoroughly and indeed sought to commiserate with the Plaintiff about his lost case, pointing out that whilst people might well laugh at him now the same circumstances often attend the original works of ingenious creators – Mr Alfred the Plaintiff was invited to consider the positions of Galileo and of Stravinsky, the early Impressionist painters and of Van Gogh and not to be disheartened by this early setback.
As he said, if it took Edison over a thousand attempts to create the light bulb, it can only be supposed that the creator of a flying car will be returning to the drawing board more than once but hopefully not in the Courts of Delaware!
Just as Litigants need Lawyers, so parties to contracts and legal papers outside England need experienced Notarial help. Here I am in Leeds, do get in touch whenever I can assist and whenever you have a legal issue which has any foreign element firstname.lastname@example.org or phone me or Louise +44 (0) 1138160116