Unlocking potential through the Litigants in Person Service
People without legal representation in bankruptcy disputes in the Auckland High Court will now be able to access free legal assistance through the new Litigants in Person Service. The pilot service will extend to lay litigants in the Employment Court (in Auckland) from April 2018.
The service is part of an initiative by Auckland Community Law Centre (ACLC). The initiative has two aims: firstly, to alleviate some of the challenges created by the increasing number of people choosing to represent themselves; secondly, to further unlock the potential of pro bono to improve access to justice.
Compared to other jurisdictions, pro bono in New Zealand is underdeveloped. All major common law jurisdictions have a more coordinated and structured approach to pro bono than New Zealand. In Australia, for example, structured programmes have seen pro bono hours more than double in the past 10 years. At the same time, pro bono has become increasingly targeted at unmet legal needs. Simply put, a structured approach leads to more pro bono, and more effective pro bono.
The initial focus on litigants in person is a response to a range of conversations, opinion pieces and academic publications over the past few years. The right to conduct your own proceedings in a court of law is essential to our justice system and to the legitimacy of the courts. However, the tradition is of an adversarial system which depends on skilled advocates to navigate.
“Successful litigation involves mustering a complex set of information and skills, and using those things strategically. Lay litigants typically find it too difficult. The service will reduce the impact of these issues,” says Kathryn Beck, President of the New Zealand Law Society.
The presence of litigants in person within a system designed for lawyers also brings challenges for other stakeholders. Practical difficulties largely relate to inefficiencies, such as delays, lack of clarity in pleadings, extraneous evidence, which cause frustration and additional costs to the system. Jurisprudential difficulties also arise, as judges, registrars, and other counsel are forced to help lay litigants navigate the system. This puts at risk the ethical integrity of the system as the courts (judges and registrars) risk falling foul of duties of independence, and opposing counsel risk falling foul of duties to their own clients.
To deal with these tensions, judges, registrars, other counsel, and community law centres routinely recommend that litigants in person obtain a lawyer. This ignores the fact there are barriers to doing so, and so they remain unrepresented and their access needs remain unmet.
The service will try to address some of the information and skill gaps that lay litigants typically have. Through a structured referral and briefing process, lay litigants will have short one-on-one meetings with senior members of the profession. They will receive advice on the main issues they face at whatever stage of proceedings they find themselves. That advice may cover merits of their case, the pleadings, evidence, settlement strategy, hearing preparation, and conduct of the hearing. There is scope for more meetings and more advice at subsequent stages of their matter, and the amount of service provided will be matched to the amount of need the lay litigant has.
The service is based on successful models overseas, several of whom have shared resources with ACLC. Many of these other services now sit within broader pro bono structures, such as clearing houses, and operate alongside other pro bono services, such as public interest or homeless services. ACLC hopes the pilot will encourage and support the growth of pro bono along similar lines in New Zealand.
This service will contribute important impetus, knowledge and infrastructure to the development of pro bono services in New Zealand. Pro bono is an important tool for addressing access to justice issues. It is not a panacea, nor is it a substitute for well-funded public services. However, it is a flexible resource that can quickly move to address emerging issues.
The Litigant in Person Service is funded by New Zealand Law Foundation. It is supported by a wide range of stakeholders, including the New Zealand Law Society, New Zealand Bar Association, several large firms, the Legal Issues Centre, and Community Law Centres Aotearoa.
The service can be contacted on 09 302 5343 between 9.30am and 5pm, Monday to Friday, or at email@example.com. The service accepts requests from individuals for assistance as well as referrals from other legal services and caseworkers.
Darryn Aitchison firstname.lastname@example.org is the Administration Practice Leader at Auckland Community Law Centre.
Last updated on the 2nd March 2018