Importance of right to self-representation affirmed
Although the common law strongly upholds the right to self-representation in legal proceedings, exercise of this right is viewed negatively and self-represented litigants are perceived to pose a problem for the justice system, says a Victoria University of Wellington research paper.
The paper, Not for the Faint of Heart: The right to self-representation in New Zealand by Louise Grey, says self-representation is viewed as a drain upon court resources, a complication to the traditional roles of judges and lawyers, and an emotional burden for self-represented litigants.
"Scholarly articles and media reports frequently frame the rise in self-representation as a 'flood', 'tsunami', 'tidal wave' or 'sea'. The use of this metaphor, which denotes an overwhelming natural disaster, promotes and (re)produces a narrative of crisis," Ms Grey says.
"This discourse assumes that the increase in self-representation limits access to justice. Furthermore, it places blame upon self-represented litigants. Fault might more constructively be placed upon the system, which promotes the right to self-representation but cannot deliver fair outcomes in practice."
Considering the options for change, Ms Grey says these fall into three categories: improving self-represented litigants' knowledge of the system, facilitating self-represented ligitants' access to non-lawyers, and facilitating self-represented litigants' access to lawyers.
She says discourse surrounding systemic reform - in contrast to framing the self-representation phenomenon as a natural disaster - positions self-represented litigants as heroic protagonists battling against a man-made bureaucratic system, and shifts blame for the resulting issues on to the system.
"It is a more desirable discourse in that it promotes the right to self-representation, yet also highlights the difficulties self-represented litigants face."
Much as New Zealand's civil justice system lauds the right to self-represent, it has developed in such a way that the right is out of reach for most, Ms Grey says. Arguing one's case without a lawyer is to the litigant's detriment - and, arguably, to the system's detriment - in the majority of situations.
"Despite this, it is my contention that the right to self-representation must retain its central position within the common law. In the midst of negative rhetoric and innovative scholarship rethinking the nature of the right, there is a tendency to forget the wider goals at stake where self-representation is concerned: access to justice, the rule of law, democratic governance, fairness and equality are likely to be compromised if the right's importance is downplayed or denied."
It is time to accept the self-representation phenomenon for what it is, Ms Grey concludes: a symptom of an affordability crisis within the right of access to justice.
"The right to self-representation must continue to command respect and relevance in New Zealand. After all, any of us might one day require civil justice, and it should be our right to decide whether to pursue a claim through a legal representative or engage with the system ourselves."
Last updated on the 16th September 2019