Since April 2013, when public funding for almost all private law family proceedings was removed, the number of parents going to court to argue about residence and contact of their children (or, since April this year, child arrangements) has increased dramatically and worryingly. According to the Government’s own figures - released only as the result of a freedom of information request - the number of parents attending court in person in private law family proceedings increased by 19,140 in the year April 2013-April 2014. More concerning is the fact that, for the first time ever, more than 50% of parties in private law proceedings (57%) did so without representation. More worrying still is the fact that the overall number of private law cases has also increased modestly, suggesting that the Government’s aim to divert people from the court process into mediation and other alternative dispute resolution methods has failed.
The concerns regarding litigants in person in family courts has already been well explored, and I am not going to address them further here. Rather, I intend to give something of a practical guide to a couple of the stumbling blocks which I have encountered when dealing with an unrepresented opponent. So, for those lawyers still lucky enough to still be paid for attending family courts, or those masochistic enough to attend on a pro-bono basis, what are the biggest pitfalls of dealing with a litigant in person?
The first problem of dealing with litigants in person is setting time estimates, and sticking to them. The difficulties are that, whereas if against another lawyer, it is possible to fairly accurately calculate the time a hearing will take. Against a litigant in person, it can be a bit of a lottery. Sometimes very short, sometimes much longer. In my experience, it is much better to err on the side of caution when setting time estimates. Getting a new date for a part heard hearing is never a particularly speedy option!
Advising Your Opponent
As a lawyer in a family court appearing against a litigant in person, there is a very thin line to tread: on the one hand, you must represent the best interests of your client; on the other you are an officer of the court and must not mislead or take advantage of an unrepresented opponent. So what is the best way of navigating that minefield? Of course, each advocate will have his or her own preferred course, but I think that it is important to explain everything as fully as possible to an opponent; to explain exactly what the case is about and what you will be asking the judge to do, but not explaining to that person what they could or should say in response. That is a matter for them. To do so might also amount to giving legal advice to your opponent, which would be in breach of your primary duty - to your own client. The exception to this rule of thumb is if your opponent simply won't talk to you. On a number of occasions, I have faced opponents who flatly refuse to speak to me as they see me as the 'enemy'. In those situations, you can do little more than explain the purpose of discussions. If that person still won't engage with you, then you have discharged your duty of fairness and responsibility.
Evidence and the Hearing Itself
A contested hearing against a litigant in person in which evidence is heard will almost certainly be more 'free form' than most are used to. Your opponent is unlikely to know the rules of evidence, and is unlikely even to know which matters are relevant, and which aren't. Again, as the opposing advocate you must allow the litigant in person some leeway, if for no other reason than that otherwise you would be constantly objecting! On the other hand, you shouldn't allow any improper or unfair questions if their answers would be detrimental to your clients case. That is normally the distinction I draw: if the question is irrelevant but will lead to a harmless answer, I will generally not object; if it is something unfair or will harm my client I will. Of course, as with pre hearing discussions, it is for each advocate to decide the correct path.
Drafting the Order
Never, ever leave court without having a fully drafted and approved order (You may have correctly guessed that this tip is borne of bitter experience). Whereas in a hearing against another lawyer, it is perfectly normal to agree bullet points of an order at court, with the applicant's lawyer later drafting it and emailing to the other party for approval, avoid this at all costs when against a litigant in person. It will come back to bite you. In my case, what followed were several days and thousands of words of emails between me, my opponent and the judge, trying to reach an agreement on the wording of the order. Before we had finished we had even had an email ruling on a particular issue. There are two main difficulties: firstly a litigant in person may have a tendency to misremember exactly what the judge ruled, or that was agreed between you when deciding what should go in the order. Secondly, in my experience, litigants in person tend to think of things after court which they suddenly decide they want added to, or removed from, the order. In order to avoid any of these pitfalls, I urge anyone in this position to ensure that you fully draft the proposed order in full before you leave the court, and get this draft approved by the judge. Any issues which the other party wishes to raise can then be raised at the time, and by the time you step outside the building, there can be no confusion as to the order's terms.
To conclude, it seems that with the current Government's cuts to the system of legal aid and public funding showing no signs of reversing or stopping, the phenomenon of litigants in person appearing in the family courts will be one that continues to increase. As that is the case, we will all have to get used to a new way of working, which is perhaps slightly less structured and predictable than lawyers are used to.