By Guy Aharoni
Self-represented litigants (or SRLs) are often viewed as a ‘burden’ on the legal system because they create problems for courts and opposing parties. The truth is that the legal system is often a problem for self-represented litigants: They have to navigate a process that is foreign to them, that may at times appear to be byzantine or counter-intuitive.
Improving access to justice for SRLs not only makes their experience easier, but can also significantly reduce costs and burdens on the court system and opposing parties. This post considers four ways in which the legal system can better respond to SRLs, by considering both ongoing initiatives and ideas for future reform.
1. Self-representation services
Self-representation services (SRS) are a relatively new innovation in the Australian legal landscape. Beginning with the Lawright SRS (formerly QPILCH) in Queensland, they provide pro-bono legal advice to their clients, such as strategic advice or assistance in drafting pleadings. The SRS keeps its costs down by delivering an unbundled legal service – meaning that its lawyers can help the client with specific needs, without acting for them across their entire case. In the SRS model, the client and lawyer meet for up to one hour, with the lawyer providing advice according to the client’s needs. There is no commitment for any further assistance, although there are likely to be 2-3 further meetings. It is rare for an SRS lawyer to represent their client in court, or act for them in any other capacity.
The accelerated uptake of the SRS model has followed positive appraisals of its application in Queensland, across state and federal courts. These appraisals conclude that the SRS model provides direct financial savings to the court system by ‘diverting’ clients with unmeritorious claims away from the court, reducing the number of required appearances by the litigant, and saving time for court registry staff.
Federal litigants in certain jurisdictions across Australia already have access to a SRS. In May 2017, the Victorian Government accepted a recommendation to fund a SRS across the Victorian court system, excluding the Magistrates’ Court.
There are some limitations to the SRS model. Chiefly, as the SRL usually has multiple meetings with the lawyer, it is mostly appropriate for longer-running matters. The Victorian Government’s Access to Justice review (at page 501) had deemed it unsuitable for the Magistrates’ Court, as many of its cases are criminal proceedings in which the litigant is only in court on the day their case is heard.
2. Court Staff
Court staff often serve as the first point of contact for SRLs in need of assistance. They are well-placed to answer many of the questions SRLs may have. The degree of reliance SRLs place on court staff can be seen by the well-received introduction of specialised SRL Co-ordinators in the County and Supreme Courts of Victoria.
Court staff are limited in the assistance that they can give to a SRL. Broadly speaking, while they may provide ‘information’, they cannot provide ‘legal advice’. As the County Court’s Guide for Self-Represented Litigants states, while registry staff may provide ‘advice about court processes’, they may not ‘provide … legal advice’ or ‘tell you what to say in court or write on your forms’.
The reason court staff are so limited in their interactions with SRLs is that they do not enjoy the same legal immunities that lawyers do. This means that they may be legally liable if, for example, they inadvertently provide incorrect advice. To remove this limitation, the Productivity Commission, following calls (including by QPILCH and the Supreme Court of Queensland), issued a recommendation to Australian governments to consider providing court staff with immunity. To date, the recommendation has not been acted on.
3. Online help
When faced with a legal issue, the first response of many people would be to ‘Google it’. Internet websites are a potentially powerful resource for many SRLs, being free and seemingly accessible.
While the Internet might be a highly-utilised resource by some SRLs, it may not be useful at all to others. First, it relies on a proactive approach by the SRL in seeking out the information. Second, many SRLs face other disadvantages, meaning that they may have poor literacy or lack Internet access. Third, many websites do not have any guarantee of accuracy, and may lead to the SRL relying on incorrect or irrelevant information.
In recent times, there has been increased focus on the potential for artificial intelligence to provide low-cost or free advice, such as Cartland Law’s AILIRA or Doogue + George’s Robot Lawyer. These services can provide self-representing litigants who require fairly ‘standard’ assistance or information with the ability to access it for free. However, many SRLs needs are more complex, and may not be served by artificial intelligence anytime soon.
Court websites can be a great resource to SRLs that have access to them. They can provide accurate, relevant information to the SRL. Both the Supreme and County Courts have sections on their websites geared towards SRLs.
The County Court webpage, ‘Are You Representing Yourself?’, first links users to the Civil Procedure Rules 2008 and the Criminal Procedure Rules 2009, that are respectively 659- and 150-page long legal documents. After providing the contact details for the SRL co-ordinator, a video is linked that recommends civil litigants read the above-mentioned Rules and the Civil Procedure Act. The video also summarises the basic steps of civil procedure, details some of the forms required (noting that registry staff can help with forms), and refers SRLs to the Guide for Self-Represented Litigants. The Guide is perhaps the most helpful aspect of the website. It explains, in plain English, the procedural steps involved in civil litigation. However, it is not much more than a run-through of the requirements, lacking practical help on how to file forms, prepare for court or present one’s case. This is likely to severely restrict its usefulness to SRLs.
The Supreme Court webpage appears to be more helpful to a SRL. It contains information that explains the various types of proceedings in the court, including plain-language ‘information packs’ – for example, the Judicial Review Information Pack. Those packs contain an overview of the process; instructions on how to fill forms, including examples of completed forms; excerpts from the relevant procedural rules; and where further help may be obtained. The packs have been credited by the Supreme Court (see page 57) for reducing the number of errors made by SRLs in court documents.
Given the growing role of the Internet in providing legal solutions, it is important that courts utilise their websites to benefit SRLs as much as possible. Relevant and concise information, that is relevant to the SRL’s case, can help them with their case.
4. Judicial Assistance
The reality for many SRLs is that they will enter the courtroom at a severe disadvantage compared to a represented party. What assistance, if any, is the judge then to afford that party? This is a question that courts and commentators have both grappled with, and this discussion has intensified in recent years as SRLs are perceived to impose bigger burdens on court systems.
One of the cornerstones of most systems of law is the right to a fair trial. However, some litigants may be disadvantaged at trial because they are unable to afford legal representation. This disadvantage is heightened when the other party is represented. In these cases, the judge must be proactive to ensure that the SRL receives a fair trial.
More generally, in Australia, the right to a fair trial co-exists with the right to self-represent. As such, courts have repeatedly held that the judge must ensure that litigants can self-represent without being substantially disadvantaged – including by providing assistance when necessary.
On the other hand, judges must be seen to be impartial and independent of the parties – and as such cannot assume the role of an advocate for the SRL.
In practice, judges can do a lot to help an SRL effectively participate in the proceedings. Often, a simple explanation of court procedure can do a lot of good. One of the areas that SRLs struggle with is distinguishing between matters that are relevant and irrelevant to their case, and the judge can help steer them in the right direction. A judge may even be able to ask questions of the SRL to clarify their submissions and ensure that they have put forward their arguments in full. The assistance that a judge can render a SRL is by no means limited to the above – the needs of SRLs are diverse, and there are no boxes to tick-off.
It can be concluded that self-representation services, court staff, online help and judicial assistance all have potential for reducing the disadvantage experienced by SRLs in the justice system. Further reform, implementation and evaluation of these initiatives is needed continue improving access to justice for SRLs.