Is self representation the legal equivalent of a DIY appendectomy?

Would you rather represent yourself in court or perform your own appendectomy? It sounds like a fairly straightforward question and at first thought, and quite possibly second and third thoughts as well, most of us would plump for representing ourselves in court: there is, arguably, less blood, less pain and less chance of death.

But I have been musing on the question since reading about Ramírez Pérez, a Mexican woman who delivered her own child by caesarean section.  The mother of seven, who lived in a tiny rural community in Mexico eight hours from the nearest hospital, decided after 12 hours of severe labour pains that rather than risk losing her baby she would operate on herself.  Remarkably both she and the child survived.

Not something I imagine many women will be including in their birth plans.  Unsurprisingly, Ramírez is believed to be the only woman to have performed a successful caesarean on herself, although it’s quite possible some of us would do the same if we found ourselves in her situation.

Ramírez obviously felt she had no choice, or only a choice between her DIY operation and death, which isn’t much of a choice. This is likely to be true for anyone else who finds they have to wield the knife on themselves: the mountaineer who cuts off an arm to escape a rock fall or the scientist stuck in the Antarctic who needs a biopsy (although there is a strange category of people who seem to do it for fun).

It is unlikely that many people represent themselves in court for the fun of it.  Nobody knows your body better than you, and all you have to face when cutting yourself open is pain and a lot of cleaning up afterwards.  In court you have to face people, in comedy wigs and gowns, for whom the rules and regulations are second nature and who argue for a living using a strange language the rest of us don’t understand.

You might think, therefore, that the only people who would represent themselves in court would be those oddballs who ‘love a challenge’, who want to put one over on the establishment, who have nothing better to do, or who are just a tiny bit crazy.

Not any more.  Where once people would no more represent themselves than they would drill a hole in their own head, now anyone can find themselves having to navigate the arcane world of the court system because they have no choice.

This alarming rise of litigants in person is set to increase and everyone from the Lord Chief Justice down is starting to worry about the impact this will have on the justice system.  Everyone, it seems, apart from the government.

In the last five years there has been a 61 per cent rise in the number of reported high court and tax tribunal cases involving unrepresented litigants.  The recession has had a huge negative impact on people’s personal finances, meaning more may end up in court but unable to afford a lawyer.  From April 2013, when the legal aid cuts come into force, this is only going to get worse.

There will no longer be any financial support for most cases involving divorce, child custody, medical negligence, employment, immigration, housing, debt, benefits and education.  According to the government’s own figures, 623,000 people could lose out on advice.  A number of law centres are already closing, but the £20m transition fund set up to support them looks somewhat paltry.  All of which might be ok if it were really going to save £350m, but it isn’t.

When I needed a caesarean for the birth of my daughter it took minutes, seconds even.  It took Ramírez an hour to perform one on herself and she needed further surgery to repair complications.  Likewise, a case prepared by a lawyer who knows what they are doing is likely to reach, and conclude, a final hearing much more quickly the than one handled by someone who didn’t even know where the court was until last week.

The government says the evidence does not show that these cases ‘necessarily take longer’.  I find this hard to believe.  Self-represented litigants are not going to have had any legal advice to help work out the merits or demerits of their case.  They are not going to know what is relevant and what is not, nor what they have to produce or when they have to produce it.

The government says ‘judges are already well used to dealing with litigants in person’, but this upsurge in cases that need significantly more support is going to descend on a court system that is already noticeably creaking following drastic staffing cuts.

The government says its reforms will encourage people to tackle their problems earlier and in other ways rather than resorting immediately to legal action.  But by pulling the rug out from under people, what they’ll get is more people who get no justice at all, either because they haven’t had any legal advice or because they will just give up.

You don’t even have to use your imagination to see what this deluge of DIY justice will look like.  US courts are flooded with poorer people representing themselves and judges say they are slowing down court dockets because they don’t know what legal points to argue or what motions to file.

According to America’s largest funder of civil legal aid for the poor, less than 20 per cent of the legal needs of low-income people are addressed with the help of a private or legal aid lawyer.  Its chairman says ‘courthouses are being filled with people just showing up, trying to figure out what their rights are’.  In some states the numbers of litigants in person in child custody and divorces cases is around 80 per cent and rising.  Millions of dollars has been spent on educating and supporting them.

A former aviation director who represented himself in court, Peter Elliot, told the Law Gazette he was ‘utterly frightened’ and intimidated when he first walked into Manchester high court four years ago and had no clue what he was doing.  ‘It was like being in a game of chess where you don’t know where any of the pieces can go but your opponent knows it all’.

Even so, I’m guessing Mr Elliot’s background had better prepared him for the challenge than many of the vulnerable people who will find themselves in the same situation come April next year.  Against this, cutting your own foot off starts to look like the easy option.

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One thought on “Is self representation the legal equivalent of a DIY appendectomy?

  1. Peter Hastings

    One problem is that the body is how it is. The court system is how we make it.

    The confusion I come across most is why everything takes so long, why a hearing is months away, why the court fees are so high and so on. If we can improve these aspects litigants in person might feel on amore level playing field.

    Reply

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