New Zealand Law Society - A warning to the profession

A warning to the profession

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What’s driving more people to navigate the court system solo? Canterbury University Law Dean Dr Chris Gallavin suggests three possible factors:

  • people may be taking matters into their own hands because they feel they can do a better job;
  • seeking justice is just too expensive and out of reach for the average New Zealander; or
  • it could be the legislative push to “de-lawyer” jurisdictions as we have seen with the changes to the Family Court.

The culmination of all three could be creating the “new reality”, according to Dr Gallavin.

“I think we have to examine what benefit we bring – what’s our point of difference?

“I think it’s a real shot across the bow of lawyers, and of the profession, because we now live in a day and age where everything is searchable on the open data movement and especially with government departments signing up every day to the open data movement.

“You can get all sorts of different precedents, self-help books, online guides and tutorials about how to navigate yourself though these things and I think many believe if they’re going to sacrifice half their lives going through litigation, they might as well invest another five percent of it if ‘I can at least, at the start, give it a nudge myself’,” he says.

The negatives of self-representation including clogging up the court system, bringing delays, but Dr Gallavin says courts need to be better prepared for more of the public having a go at seeking justice on their own.

“Judges, I don’t believe, universally have the skills to deal with self-represented litigants in an equitable and fair way. If this is going to be the reality, then judges are going to have to deal more equitably with self-represented litigants because they [self-represented litigants] often get away with murder effectively.

“They’re allowed to ask all of the leading questions and a judge is often so paranoid about dealing with them that they are allowed to effectively ignore the rules of evidence and the rules of procedure because the judges bend over backwards to ensure that they feel as if they’ve got a fair deal.”

Dr Gallavin says more judicial training would mean that the system would be “much quicker”.

“They would just have to, in a sense, manhandle them though the process in a lot more proactive way, but not allowing them to do whatever they want, such as giving evidence in ways which is not permitted, especially if there is lawyer on the other side.”

Conversely, self-representation is justice being seen to be done, according to Dr Gallavin, with the person feeling as though they’ve had their day in court.

He says a lot of the civil processes that are geared towards mediation and the stepped process which you need to go though in order to get a hearing confuses the public.

“I think that creates a perception in the minds of the public who feel as if they can file proceedings and get their day in court and get it seen to because they feel as if it is a system that is not working as opposed to working.

“I think many people might say, ‘well if it is all about an emphasis on mediation and negotiation and sorting it out beforehand, then why shouldn’t I try to actually try and represent myself? And, therefore, I can somehow be the author of my own destination’.”

Anecdotally, most self-represented litigants that he has spoken to want to be in the driver’s seat rather than be a “begrudging passenger”, Dr Gallavin says.

“Especially with all of the twists and turns of the civil jurisdiction, it just ends up being longer … I know the judges are annoyed as well because with the pleadings that are now filed in civil cases, they’re working hard to get them back down to bullet pointed facts in the law, as opposed to big weighty tomes.

“If you’ve got a number of months with a number of hurdles in the way of getting a hearing where you get your chance to actually have your say, then what that’s going to result in is people are going to try and front load it … So there’s no incentive to try and strip down the pleadings because you know you’re not going to get a hearing and a timely hearing for you to be able to extol the virtues of your side of the case,” he says.

Self-representation may start to look more attractive with the proposal made by ex-Minster of Justice Judith Collins to increase the maximum Disputes Tribunal claim level to $30,000.

Currently, individuals and businesses with civil claims can go to a Disputes Tribunal if the disputed amount is $15,000 or less (or $20,000 or less if all parties agree).

Dr Gallavin says more complex cases and legal analysis will eventually make people feel more at ease with the court process.

Also, the proliferation of information sharing via social media could mean successful self-represented litigants could potentially set themselves up as quasi-consultants and blog online about how they structured cases, what questions to ask and what to look out for.

“I don’t think we should embrace it with open arms – but we do have to understand what’s driving it and therefore know how we can be a better service to clients.”

LawTalk was unable to locate statistics on the number of self-represented litigants in the High Court, Court of Appeal and Supreme Court during recent years.

One of the possible sources LawTalk contacted was the Ministry of Justice. A ministry spokesperson says its case management system database – until recently – did not have a mandatory field for recording self-represented litigants, but this information was now being recorded.

“The ministry is reluctant to release figures now as it wouldn’t provide a fair representation of the situation, but there will probably be some more robust numbers through in the coming months.”

Given the lack of statistics, the Law Society Library conducted searches of the LINX and BriefCase databases. As these databases may not collect all cases that were conducted in the courts listed, the numbers are lower than the actual numbers would be. The figures are, therefore, indicative.

The Ministry of Justice does record the number of amicus curiae payments to counsel and law firms.

The highest prevalence of payments were in the Auckland and High Court (38) and Auckland District Court (84) from 2008 to 2013.

In the same five-year period the Supreme Court had 11 payments and the Court of Appeal had 55.

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