New Zealand Law Society - Does self-representation provide access to justice?

Does self-representation provide access to justice?

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“There is a difference between access to courts and access to justice. Self-representation allows access to courts, but access to justice within the system is an entirely different matter. It is one thing to get in the door and another having the ability to get the necessary resources or advice to understand the legal system,” says self-representation expert Bridgette Toy-Cronin.

As part of her Otago University PhD thesis, “Going to Law without a Lawyer: Litigants in Person in the New Zealand Civil Courts,” to be submitted in June, Ms Toy-Cronin has researched and interviewed 35 self-represented litigants, 14 judges, 18 lawyers and eight court staff over the last three years.

The former litigation lawyer practised in both New Zealand and Australia, completed legal work in Tanzania and Cambodia and gained an LLM from Harvard Law School in the United States.

“I have left legal practice to research litigants in person as I think it is a very important issue for the New Zealand justice system, especially given the Government’s changes to Family Court procedure and the cuts that have occurred to the legal aid budget which might mean more litigants in person are entering a system that was primarily designed for represented litigants.

“Self-representation is a constitutional principle. While for some people it might be seen as a symptom of failure to access to justice because it is the failure to get representation, others might see it as bettering access to justice because they can go through the legal process unmitigated by a lawyer.”

As part of Ms Toy-Cronin’s research, she has found self-represented litigants often feel confused by the system, have real difficulties accessing assistance and legal information when they want or need it (many would prefer to be represented, or at least to have legal assistance) and they often feel unwelcome and patronised, particularly by the opposing counsel where the other party is represented.

As a preliminary finding, one of the major issues for both self-represented litigants and the bench and bar is that self-represented litigants tend to misapprehend the nature of the legal process, Ms Toy-Cronin says.

“They don’t usually understand the need to present both a legal argument and a theory of a case. That is understandable, when you think about the lay perception of the legal system that you just tell your story and a judge decides (think of ‘Judge Judy’).”

When that perception is brought into the court it leads to real frustration for all parties to the court process, she says.

“It is also confusing for [self-represented litigants] when the system tells them that they have a right to litigate in person and that justice is for everyone, but then find the system very hard to negotiate without a lawyer. Not everyone finds it unmanageable, but for the most part people find it far more difficult than they anticipated.”

From the perspective of the bench and bar the main problem is that dealing with a matter involving a self-represented litigant is quite unlike dealing with a matter where there is counsel, she says.

“There are lots of pitfalls for opposing counsel and judges – dealing with a [self-represented litigant] who is emotionally involved in a matter, who doesn’t understand the process, who may feel ganged up on and confused, as well as stressed (as most litigants are, whether represented or not) by their case.”

This means that counsel and judges try to be very careful explaining everything to the self-represented litigant and that slows the process and creates costs to the represented opposing party and to the system.

The flipside of this, however, is self-represented litigants save in legal fees, which, “as anyone in the profession knows, mount up very quickly and outstrip what people anticipated it would cost, and importantly what they can afford”.

In the 2014 Law Foundation Ethel Benjamin address titled “Access to Justice – Who Needs Lawyers?” the Chief High Court Judge, Justice Helen Winkelmann, suggested self-representation was a false economy, instead resulting in “efficiency deficit”.

“The unrepresented litigant has none of the knowledge of the law to make decisions as to how a case should be pleaded, or what evidence is relevant to the case.

“The court system is, for many, a foreign land and the notion of bringing proceedings without legal representation can be compared to the fearful prospect of being stranded in a foreign land unable to speak the language, and without the money needed to find your way home.”

Simply simplifying rules of procedure or the current processes might compromise fair and open hearings. In addition, web-based resources – thanks to the Ministry of Justice – while worthwhile, are “unlikely to make up for the advocacy deficit”, Justice Winkelmann said.

The “fundamental aspects of our system of justice are built upon the assumption that parties will be legally represented”, she said.

She proposed that unless there is better access to justice, “we will live in a society where the strong will by any means, including violence, always win out against the weak”.

Family lawyer Erin Ebborn, of Christchurch’s Ebborn Law, has had experience with unrepresented litigants in her role as a lawyer for child and she’s been in the position of having to send clients off to represent themselves.

Ms Ebborn says she hasn’t noticed the surge in self-represented litigants that were expected post the Family Court reforms but in her capacity as a lawyer for child, she has appeared in court far more frequently than anticipated.

Lawyers for child have taken on a heavier load following the reforms, with self-represented litigants having an increased expectation on Lawyer for Child to guide them or act as a “go-between” throughout the legal process, she says.

“It creates a tension between: empathy for the person, the pragmatism of wanting the process to go smoothly, the brief for Lawyer for Child, [the] need to be independent and fairness to the other party. There is also a risk that the represented party will perceive a bias towards the self-represented person.”

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