Should Judges be trained to deal with Litigants in Person?

The Californian courts have for some time been working on ways to assist a court system that must cope with large numbers of litigants in person. Bonnie Hough presented research by Greacen at the International Legal Aid Group’s 2011 conference which provides some interesting pointers to what the Ministry of Justice, the Judicial Studies Board and the Judiciary themselves should be considering. There are strong echoes of my own work with Mark Sefton, and Hough and Greacen have years of experience of working on litigant in person issues.

The first point is to recognise what litigants want– the opportunity to be heard, equal treatment with others in the courtroom, respectful treatment, and a sense that the judge care about his or her case. Even losing litigants can – and often do- leave courtrooms satisfied that their case has been fairly dealt with if these concerns are attended to.

Similarly, where judges communicate effectively, self-represented litigants can “understand what is happening in family law hearings at a deep and nuanced level.”

What kinds of factor foster such good communication:

  • Judges have to care about the litigants’ understanding of the proceedings.
  • They take the time required to explore and resolve each issue presented.
  • The give both parties an opportunity to be heard on each issue – without allowing the hearings to consume a lot of court time.
  • They speak in plain English and avoid the use of legal jargon.
  • Where it is necessary to use legal terms they take the time to make sure that the parties understand the meaning of the legal concept.

They also use a number of effective practices to structure the hearing so that it is understandable. These include:

  • framing the issues to be decided;
  • asking questions to elicit information needed to make decisions;
  • making rulings in open court as the hearings proceed;
  • summarizing the terms of the order at the close of the hearing;
  • paying close attention to details of compliance with the court order, and
  • setting the parties’ expectations for future developments in the case, including future hearings.
  • Use of nonverbal skills (good body language and techniques to convey active listening, for example) were also seen as important precursors to successful communication and litigant satisfaction.

There were a number of basic practices which good judges used. They included:

  • Framing the subject matter of the hearing
  • Explaining the process that will be followed or guiding the process
  • Eliciting needed information from the litigants by
  • Allowing litigants to make initial presentations to the court
  • Breaking the hearing into topics
  • Obviously moving back and forth between the parties
  • Paraphrasing
  • Maintaining control of the courtroom
  • Giving litigants an opportunity to be heard while constraining the scope and length of their presentations, and
  • Giving litigants a last opportunity to add information before announcing a decision
  • Engaging the litigants in the decision making
  • Anticipating and resolving issues with compliance

Interestingly, the judges they dealt with (all of whom were seen to be better judicial communicators) indicated that the self-represented litigants, when managed in this way, did not take more time than cases involving represented parties. It should be noted, however, that the sample was very small.

The research involved videoing hearings and interviewing the participants. Those videos were analysed by the researchers but some also formed the basis of training videos for judges. Judges reported that seeing the interviews of litigants explaining the impact of good and bad communication or being able to see other judges employ good communication cases was extremely helpful to them evolving their own practice. They recognised that they had things to learn about judging and they could learn from each other but also from the unrepresented litigants.

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About Richard MOORHEAD

Director of the Centre for Ethics and Law and Professor of Law and Professional Ethics at the Faculty of Laws, University College London with an interest in teaching and research on the legal ethics, the professions, legal aid, access to justice and the courts.
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3 Responses to Should Judges be trained to deal with Litigants in Person?

  1. Ian Scott says:

    Excellent, its about time I’d say – but – why should that which is so seemingly obvious be so difficult to enact?

  2. Richard

    Interesting post. As I said in my Tweets, I have had a lot of experience of dealing with litigants in person (LIP) mainly defending proceedings, but also assisting LIPs with their cases. My experience is that it is often too late by the time everyone gets to court to unravel what is sometimes a complete mess, all for want of meaningful advice along the way. It normally manifests itself around the process, less so the substantive law. The Judges are also very mixed and there is a lack of consistency from one court to another. LIPs do not always go away satisfied and I am quite sure a number feel the system is against them when the legally represented party and the judge talk in language that is completely alien to them. Briefly, I think the courts should offer better pre SCT advice and not duck out on the basis that they are not qualified to do so. Perhaps the advisor to lay justices could be the model. Just a quick snap shot of my experience.

  3. RIGHTS OF LITIGANTS IN PERSON – HUMAN RIGHT BREACHES:
    I am reeling with shock, by the inequality I have so far faced by the Courts that has added salt to my wounds. I have not been treated fairly purely on the basis that I am a litigant in person as I prepare myself mentally for the long haul fight that may result in me visiting the Human Rights Courts in France if I fail to get legal justice in this country. I will prove time and time again my rights have been breached mainly because I have been a litigant in person at first not knowing the law and now a litigant in person who has finally begun to understand the law and how the law has failed me. I have been fighting cases since 2006 against the same mortgage lenders at first defending an eviction a vulnerable ill mortgagor, and in 2009 my fight back to get refunds of excessive charges I sued them for increasing my mortgage by £5,500/- approx in charges for just being in arrears. As this case against my mortgage provider has progressed conflict of interest, a void mortgage and twenty other breaches that has come to light, including a near eviction that breached my rights as a mortgagor as it is my home they were evicting me from, callously using my circumstances as an excuse. My home an investment that I bought in good faith, loans and Insurance I took in good faith from the financial professionals they call themselves. Taking advantage of my situation of being unable to work due to ill health dismissive of circumstances of a person caught up in all the hell a hit and run car accident can really do, labelled a delinquent borrower on credit rating sites when evidence proves otherwise.
    High flying legal teams blatant disregard to the ethics of law & Court regulations, work the system with perjury, as evidence can prove. In reality there is no such thing as a STATEMENT OF TRUTH: I have statements of deliberate misrepresentations and perjury in my possession, accepted as truth, just because the legal representative has a law degree / versus the litigant in person shaking with nerves standing up to the Goliath and even more shockingly the Courts turn a blind eye accepting such statements that make a mockery of what real justice should really be. As the wheels of justice keep turning against a litigant in person first bullied into submission by the perforators’ of crime and then by the Courts who up to now are not user friendly to litigants in person, again breaching the human rights of the individual to a fair trial.
    I have been complimented on my presentation of my case by a few Judges, but cannot understand why my bundles go missing in court. This has happened three times till date, after I have submitted them in the presence of a PSU representative that has caused me to get verbally assaulted by a Judge who automatically presumed it was my error causing me to have a panic attack. I nearly passed out as I was dismissed, stopped short, when answering a question she asked raised by the defence as she vented her anger towards me. I have witnessed in utter baffled confusion, trying to understand court procedure and protocol as Courts have gone against their own orders and have allowed Defence bundles with contempt’s. Timely applications for cases to be heard not placed in correct order, cases that should have been postponed by Court heard resulted in cases being thrown out due to court errors and then re-instated. Disclosure not presented on dates set by the Court, blatant contempt’s by the defence disobeying court orders with no penal retribution. Judges in good faith either not having the time to read the case notes, or to get a quick breakdown of cases lean heavily on the Defence councils recommendations who are in turn too eager to de-stabilise the case in their favour have led to the three different Judges giving detrimental orders. In a recent case when the Judge vented her anger towards me without looking at my bundles as it was not presented to her on the day of the hearing presumed lost or destroyed by the Court. A case should not be heard in all fairness if the claimant’s (myself) bundles of evidence is not placed in front of the Judge, the case should have been postponed and further the Court should not use Defence Bundles once the Court has been forewarned that it contained evidence that has been forbidden by the Court.
    These Judgments have breached the human rights of my family and self all recovering after a hit and run car accident by the superfast eviction from 2006 and has continued till date. The eviction order should not have been granted in 2006 as the Mortgage as it stood from the moment of inception ‘Void in law as no terms and condition contract was ever drawn up and was not presented to the Court to prove that I had breached the contract in 2006’ and the Courts should have scrutinised the paperwork to protect my rights as a mortgagor in 2006. My rights as the mortgagor was not protected by the Sect 36 of the Administration of Justice Act, perjured witness statements, taken as the truth nearly led to a near eviction in 2006. It is only recently I have come to understand the Property Law of England and Wales. I have been sold a predatory mortgage stripped of all my rights as a Mortgagor as serious conflict of interest has occurred in the favour of the lenders who have been heavily fined for abuses in 2009 by the FSA. The lenders, their company solicitors enticed the broker into their ring of deceit giving him the charge to procure my signature despite them promising to pay all legal costs and failed to do so. Having instructed their company solicitors who have claimed they were never instructed to act on my behalf, knowing I was never given legal advice prior to the signing and on the day of the signing the mortgage, the mortgage was approved and registered in the land registry in 2005. The unfairness I have continued to face has shaken me so much 20 serious breaches made by the mortgage company and their touts their company solicitors/the brokers. I have to continue to fight my cases on my own, my head kicked around like a football and my rights of audience and fair trial denied guaranteed by the Human Rights Act that some Judges do not seem to care about. Lenders and Brokers fold companies that have either fallen foul with the FSA or pre-emptively fold only to re-open under different company names to avoid the long arm of the law.
    What respect of the law will be left as Terrorists are given free help from the legal aid system and a LIP told that £12,000/- will be added charged to the home of a LIP if all court costs cannot be obtained is a slap in the face of what the Law is all about and should be, the protection of the victims and not the perforators’ of crime. Financial wrongdoers should be penalised heavily to show them what breaking the law is worth in consequences as they continue to con the British Public and the FSA continues to allow them to do business?
    The Courts have now continued to allow this eviction order to continue after being told the order was obtained by perjury as it is causing my credit rating to be low. I now have to make appeals to overturn the order which I am finding it hard to overturn. The case is on the 28th Oct 2011 next week at the Manchester Civil Justice Centre at 10.30am a Circuit Judge will preside over the case as I wade my way up the ladder to the High Court and probably the Human Rights Court. As I shake in my boots with nerves, and I wade through trying to grapple with complicated court procedure and further understand the law, I will persevere to unravel the financial maze of deceit laid out in great style by financial giants and their legal teams I will stand my ground and hope for the best from what the legal system ought to be.
    The Rights of litigants in person all over the country are being breached. They should be treated with dignity and respect, under given circumstances of being in an alien environment. Strict laws to penalise wrong doer’s solicitors who are committing perjury deliberately to win the cases as they damage the reputation of the legal system and more LIP’s will seek justice as they lose faith in their solicitors. The legal system is an honourable one, if I could have turned back time and if I had the benefit of education I would have taken up law as a profession as I am fascinated by it and the law should be seen to be and should be respected by those who have the duty to uphold its sanctity. My faith is badly shaken I must admit, alone with no one to turn to, just my faith in the judicial system of this Country.
    The Judges should remember we LIP’s are human and should respect the courage the individual takes to take such a stance and not treat them the LIP’s with distain just because they have the power to make a person feel uncomfortable in the already alien court environment by giving the defence barrister a field day with the head of a LIP on the platter. Victims all trying to get their lives back are not what they would expect from the Democratic Courts. The wrath of the law should be towards the law breakers and not the victims of crime.
    I am not in arrears but I now fear losing my home as the Void predatory mortgage that has been forced on me needs to be repaid once the charge is removed. Even though I should be entitled to serious damages and the whole amount can be written off if the Court so desires to punish the wrongdoers all these errors are not my fault is left to be seen.
    As I struggle to restart a business I was forced to fold a promising music recording label, part of the Brit Academy of Judges for a few years, and come to terms with the shock of what has transpired and how close I was pushed to a nervous breakdown and suicide in 2006. This is not what I expected from the legal system and the financial system in this country. I am not looking for pity but Justice. Please help protect the integrity of the legal system. My heart goes out to all those who are LIP’s and my prayers. It wasn’t an easy decision to want to represent myself, with the legal aid system in shambles. God help us all, if the Courts cannot protect us from abuse. Julie de Souza

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