I was extremely impressed by the report of the Civil Justice Council, Access to Justice for Litigants in Person (or self-represented litigants), and its general suggestions for improvements. I also liked its acceptance that the discussion was about the application of a sticking plaster to a deep wound created by the cuts in legal aid provision and applauded the vital point that the litigant in person is a user of the system not a problem for it. So while practically every suggestion but the renaming of litigants in person to become ‘self-represented litigants’ was met with enthusiasm (insofar as I do enthusiasm), I have mused since and wondered if there isn’t more mileage in the approach than I originally thought.
Put simply: why do we assume that the correct approach in the provision of a justice system is that it is {i}adapted{/i} for those users who do not have lawyers? Have I floated up to cloud-cuckoo land when thinking about a justice system which leans heavily on technology and which is designed for the user who is not represented?
It probably helps if I begin by acknowledging that, if I am not actually in cloud-cuckoo land, you can certainly hear the cuckoo pretty clearly from here. We are a long way off the sort of justice system that I have in mind – it is the sort of long-term view that makes Richard Susskind look like an opportunist, but it need not be so far off that we have cuckoos perching on Blade Runner’s shoulders. We should at least be thinking in terms of maximising direct involvement of litigants at every stage not just adapting and allowing them to participate in the legal field so long as they stick firmly to their Zimmer frame. We may well have to take baby-steps but we should be asking with each and every change to civil procedure, and with every budget decision affecting it, ‘how does this help the litigant in person?’ E-disclosure discussions might benefit for a start.
Two simple baby-steps relate to legal information. One would be to switch departmental spend on accessing up-to-date statutory material to the Statute Law Database, which is wonderful in concept but way behind with updating. I do not imagine for one moment that government lawyers are relying on it and I know that judges do not so there is money being spent already. If the information on the SLD is not good enough for them, what makes the powers that be think it is good enough for the general public and the litigant in person in particular? The second is to reassert a clear policy on citation so that all judgments and official reports use neutral citations in the proper form and that cases missing from BAILII are highlighted. That would be a good thing for all sorts of reasons but it is an important plank in making information available to litigants in person, who are not likely to be subscribers to, say, the Banking and Personal Insolvency Law Reports. If judges insist on using and asking counsel to use proprietary citations, the MoJ should send them a little note of rebuke.
Speaking of baby-steps (OK, pedantry), I turn to that phrase ‘self-represented litigant’ – terminology does matter after all. There are two pretty obvious minor problems with it. First, it has a rather negative reputation – ‘you represent nobody but yourself’’ is a phrase used over many years to condemn a position, so it will be hard to give the name a positive spin. Secondly, it has no recognition factor. It may be that the phrase ‘litigant in person’ has a very limited recognition factor too, but at least it means something. But the main objection to ‘self-represented’ is that it is literally meaningless – the correct word is ‘unrepresented‘ but even I can see why that was not adopted, given its use as a near synonym for hard done by. What’s more ‘self-represented’ betrays an attitude that being represented is the norm – I am not sure that is helpful. If we are to proceed on the basis that the system welcomes litigants in person and moves towards a design which fits them then we should not be applying a term which implies that something is lacking.
The report has lots of useful points about technology. While a considerable increase in the numbers of litigants in person is fundamental to its recommendations, it seems to me that one effect of the combination of legal aid cuts and the economic downturn is that there will be a change in the capabilities of the litigant in person. Of course, it has always been the case that many have applied great intelligence and a freshness of approach to their litigation but we are going to see very many tech-savvy litigants in person who have a case but no longer have the funds to pay a lawyer and that should be the catalyst for greater reliance on IT in helping them The report states that ‘it is beyond question that the power of the web has not yet been fully exploited to meet the needs of those with problems that could be resolved through access to justice’ – and Amen to that. They suggest what I regard as a very sensible transitional answer: the focus should be on the use of technology to support advisers (which might include voluntary advisers) so as to increase the number of people they can help. This is what the report calls ‘ moderated technology’ but part of its appeal must be the potential for it to be used by the more sophisticated litigant in person directly.
I am not sure about the realities of a ‘one-size fits all’ advice site of the kind envisaged. I think there are limits to the extent to which it is realistic to expect the various advice providers to work together to provide a comprehensive web package, as the report hopes – for example, Fathers for Justice are hardly likely to work with, well, {i}anyone{/i} in the family justice system really – but I suspect that the report authors know that only too well. In any case, there is a danger that any such site would be sanitised and, while one would always hope that litigants in person would act responsibly and to the highest standards, there is no reason for them to be denied the choices and to decide to be hard-nosed.
The most exciting part of the report is the revelation that the RCJ Advice Bureau is working closely with ‘a major law firm’ to devise an online tool intended to identify which court and civil procedure a litigant in person should follow and enable him or her to download the appropriate form and get self-help tips and tailored advice. I look forward to hearing more about that in the near future and about the move towards an NHS-Direct style of advice service for the litigant in person. I sincerely hope that cuts mentality does not lead to a paralysis of initiative in an area that could lead real long-term savings, and to a real improvement in the quality of justice (without strain).
Such tools are the way forward for litigants in person. But I suspect that they are relevant to professional legal advisers as well as advice agencies. They provide two different types of opportunity. First, they allow ‘High Street’ law firms to provide the range of advice that many have long lied about (I am not saying that ‘immigration law’ in a list of {i}specialisms{/i} in two firms in a local Wiltshire market town is pure fiction but it almost certainly amounts to wild exaggeration) at affordable prices. Secondly they can be used to increase leverage and ensure that the maximum amount of advice is given at the operationally cheapest point (I realise of course that many firms have already adopted systems that are designed to do just that).
