Litigants in person: part 1
When you are a barrister at some stage you will find yourself against a litigant in person, that is someone acting on their own behalf.
Litigants in person do not always serve their cause well. One I can think of was a boxer who once fought for the world middleweight championship. Some of you may have heard of Marvin Hagler, who was a great middleweight champion. He was due to fight a contender called Micky Goodwin. Goodwin was injured and so another fighter got the opportunity, a man known as William "Caveman" Lee. Despite the fearsome name, and the fact he was a good boxer, Mr Lee only managed to survive 67 seconds of the fight, being stopped in the first round. As one witty scribe wrote thereafter when analysing Marvin Hagler's career, "thereafter Mr Lee tried the safer occupation of armed robbery". Mr Lee had a drug problem and was sent to prison for the armed robbery. Unfortunately on his release he went back to his old ways and a further conviction for armed robbery occurred.
Mr Lee defended himself on his last armed robbery charge. These were some of the immortal words which he addressed to the Judge: "I'm a menace to society. Put me away for life." Fortunately the judge took a more lenient approach and Mr Lee served 12 years before being released in July 2006.
This however is a colourful illustration of how litigants do not always assist their own cause when speaking for themselves.
Barristers tend not to like appearing against litigants in person. One of the reasons for this is that everything proceeds so slowly. Another is that you tend to waste a lot of time outside court trying to explain things to litigants which they simply do not understand. In a case of any complexity in addition to outlining the law on behalf of your client, the court will often particularly look to you to outline any matters which need to be taken account of for the interests of the other side where they are unrepresented. Although there is an obligation in any event to bring matters to the attention of the court which the court needs to know, (for example if everyone has missed an authority or a statutory provision which counts against you you cannot let the court decide in your favour on an error, although of course you are perfectly open to argue that the statute or authority does not mean what on its face it says as opposed to not referring to it), in a complex case dealing with a litigant in person this can be a more onerous and challenging obligation.
As an illustration of the sort of practical problem that you have, I was once appearing against a litigant in person who behaved as follows. Normally at court you take along copies of your authorities to give to the other side, and receive copies of their authorities in exchange. When I attempted to give copies of my authorities to the litigant in person he refused to accept them. "I'm not prepared to take any documents at this late stage" he said loftily. Needless to say this meant that once we got into court the Judge had to explain to him that he actually needed to look at these cases and so we ended up wasting about an hour while that exercise was gone through.
Whether you are doing civil law, or criminal law, you can always find yourself against a litigant in person. Even in some very large criminal cases occasionally Defendants have sacked their legal representatives and decided to go it alone. This can be a nightmare for fellow defendants who are represented and their barristers. Although you are representing your own client and only your own client, sometimes a group of defendants may have certain interests in common. (Even if they are against one another, even the so-called cutthroat defence where each is blaming the other, there can sometimes be certain flaws in the prosecution case which it is equally advantageous to both sides to exploit: for example if the prosecution failed to produce evidence or proper evidence as regards a key element of the offence, then instead of two defendants blaming each other as to who committed the offence they may both be able to assert that no offence has been proved against anyone). If you have an untrained person blundering around in cross-examination they can end up eliciting answers which are damaging not just themselves but to other defendants. Of course on occasion lawyers themselves manage this trick (much to the exasperation of their colleagues) but it is naturally more pronounced with litigants in person.
Next week I shall look at specific instances where litigants in person have caused problems in cases.