I’ve had a few disgruntled clients recently and I don’t blame them for being angry and frustrated. None of us like to think someone’s pulled a fast one on us and perhaps they weren’t expecting it to happen in a court of law. Here are a few tips to help you wise-up if you’re considering acting as a litigant in person.
1. Prepare well
Make sure your paperwork is in order, and the best it can be. You’re not a trained advocate so if you can go to court with a good position statement and maybe a chronology, you will need to say less to the judge.
Please make sure that you give a copy to your ex of absolutely everything you send to the court, or hand in to the judge. This is a very basic rule and not obeying it is likely to cause you problems further down the line. If you don’t want your ex to see it, don’t say it!
2. You will make mistakes
Lawyers spend years learning the law and gaining experience in court while you’re coming to it new, with no knowledge of the law, and usually at one of the worst times in your life when your confidence is likely to be at a low ebb. This means that you’re going to get things wrong, misunderstand things, and miss things. I see it as an occupational hazard. Although I’ve had some upset clients when things have gone a bit wonky, so far not one has said “I wish I’d spent £2,000 on a barrister for that hearing as that wouldn’t have happened”.
It’s important to keep things in perspective and to ask yourself how far off course (from your goal for the end of your proceedings) this error has taken you, and how you can get back on track.
My advice is to read and learn as much as you can and I would highly recommend this book and this website.
3. Don’t at first assume the worst
When you first meet your ex’s barrister at court, don’t immediately adopt an attitude of hostility. It’s hard to believe, but sometimes they may be as much on your side as their client’s. They are supposed to help you with court procedure and if you can get along with them it will make the proceedings a lot easier for you. And don’t be alarmed if they then adopt a very different attitude in the court room: their client is paying a lot of money and feels entitled to a good performance!
I’m afraid some barristers are just downright rude and nasty though so if that proves to be the case you need to toughen up quickly and not take any **** from them. If there is a lawyer for one side the judge expects the parties to have spoken before going into court, but if you get nothing but rudeness and bullying you can refuse to speak to them, and if necessary tell the judge why.
4. Stand your ground
Judges aren’t keen on litigants in person but, as you can read here, there are more and more of them now. Judges vary enormously, some will bend over backwards to help a LiP and to be seen to be fair, while others can be dictatorial bullies.
This means you need to be prepared to work hard to get the judge to listen to you. If necessary, keep repeating yourself like a stuck record until the judge acknowledges that s/he has heard what you’ve said. Sometimes it may feel as if the judge and your ex’s barrister are having a private conversation in a foreign language. Don’t hesitate to ask for anything you don’t understand to be explained to you and/or to ask the judge/lawyer to slow down so that you can understand and take a note.
5. Don’t go alone when you’re going it alone
If you can’t afford a direct access barrister, do take a professional McKenzie Friend to court, if you can afford one (but be careful who you choose, some of them are on a crusade of their own and not child-focused).
And I’d suggest you take a friend, or new partner if you have one, too.
They won’t be allowed into the court room, but they can walk from the car park into the building with you if you’re worried about bumping in to your ex, go and get a coffee for you if the wait to go into court is interminable, and make sure the coast is clear/go with you, if you need to go to the loo. And they can help you with any decisions that need to be made, or just be there to hold your hand: you need all the support you can get, especially if the hearing is an FDR (financial dispute resolution).
6. Check your order
This is another place where things can go wrong. If both parties are litigants in person the judge will write up the order and there’s no problem. But if one party is represented their lawyer will be expected to do the judge’s job for them (they’re a bit pushed for time these days) and draft the order. They should allow the unrepresented party to check this before it’s submitted to the judge. But not all of them do, and they often try to sneak things into the order that haven’t been agreed, or ordered by the judge. And because the judge is busy, and (mis)places a lot of trust in the lawyer, these things slip through the net. And although it’s not impossible, it’s very hard to get an order changed once it’s been made. So never leave court without either checking the draft order first, or having the barrister say, preferably in court in front of the judge, that it will be sent to you for approval before being sent to the court if it is going to be done later.
Also make sure that you have made a note of any dates in the following few weeks when anything has to be done by, as the court order may take a week or three to come out to you.
7. You’re a winner!
There’s no doubt that it’s a tough job being a LiP and it takes courage to go to court unrepresented. Legal isn’t anyone’s first language and for a few of my clients English isn’t either; I’m full of admiration for what all my clients achieve in court. As well as saving yourself a lot of money, you will discover skills you didn’t know you had by self-representing, it will give you a big confidence boost and it’s something you can always feel very proud of.
Another advantage is that you remain in control and you don’t risk having a barrister telling the judge something you wish they hadn’t. Particularly if it’s a case about your children, you will know the subject matter far better than your lawyer ever will so you won’t be sitting there cringing while they give the judge wrong information. And sometimes lawyers are blatantly against their own clients and “cosy up” with the barrister on the other side to reach an agreement which is not at all in the interests of their client or the child. Sometimes lawyers don’t want to disagree with the judge because they have lots of cases in that court and not upsetting the judge is more important than doing a good job for one client. And a lot of lawyers these days seem more interested in going home and putting their feet up than actually fighting a case. Shocking, but true. I’ve heard barristers say that LiPs often do a better job than lawyers in children cases, so just prepare well and act as if you’re a lot more confident than you actually feel.
If you’re the applicant and your ex is represented, you win again. The usual rule is that the applicant has to prepare the bundles for court hearings as well as other documents along the way. But if you’re a LiP your ex’s solicitor has to do all this work for you … and of course your ex has to foot the bill. And that has to be something to smile about.