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Listen carefully & try to understand

The judiciary has just published its guide for self-represented litigants. This is, of course, a good thing to be welcomed, even if the necessity of such a guide is not something to celebrate.

The guide only applies to the Interim Applications Court of the Queen’s Bench Division, and if you know what this does you won’t need to read it – download HERE (guide for self-represented litigants). I had to look it up, so it’s not surprising that I have no idea what sort of person ends up there as a litigant in person (LiP). It may be that they all have brains wired like lawyers. If they don’t, this guide isn’t going to be half as useful as it could have been.

On first sight, my hopes were not high. It doesn’t look like as if it were produced for a layperson and anyone looking for help on how to represent themselves could be forgiven for thinking they’ve been given the wrong document by mistake. I’m not suggesting anything aimed at consumers has to be all touchy feely, but images, colours, diagrams and stand-alone text do help to prevent boredom and frustration setting in.

Demystifying the court process was never going to be easy for someone so embedded within it, in this case Mr Justice Foskett. Despite the valiant attempts to use language a layperson can easily understand, the text is peppered with legalese, such as ‘merely because you may be “fee exempt”’, ‘it is a fundamental principle’, ‘what you must lodge is a paginated bundle of documents’ and my personal favourite ‘this is not a matter that should cause you concern’.

Listen carefully & try to understand
At the other extreme, there is always a danger of becoming a tad patronising when translating technical language into something mere mortals can understand. It would obviously be rather alarming if the other side’s barrister or solicitor came up before the hearing and started talking about what they proposed to say, but the instruction to ‘listen carefully and try to understand what is being said’ is hardly necessary.

The syntax also screams legal document. It’s laudable (and typically lawyer-ly) efforts to avoid ambiguity often make the text more confusing, with cross references and footnotes all over the place. There are also an awful lot of examples of another legalese tactic, that of beginning a sentence with a qualification and focusing on the negative.

This may be logical for lawyers, it is not for the rest of us.

Take the following example: ‘You will not be turned away or not listened to if you are forced to present your documentation in handwritten form unless what you provide is illegible and/or unintelligible. However, you must understand that the judge will have many pages of documentation to read each day and clearly typed and properly spaced material is always preferred’.

I can’t think of a more awkward way of writing: ‘It is much better to type your documents and space them out properly if you can. You won’t be turned away or ignored if you have to handwrite them, but make sure they are still clear and legible’. It is no concern of the LiP that a judge has to read a lot of papers every day.

I suppose this is the inevitable consequence of trying to explain an essentially judge-centred process to make it sound as if it were, in fact, built around the needs of the individual seeking justice.  The very format of the document, a narrative with numbered paragraphs and reams of text, is something a lawyer might choose, but it is far from the best way to explain a complicated process with rules, requirements and deadlines to a layperson. A nice bright flow diagram, a few check lists, a Q&A section, a glossary and examples that made sense would have been much more useful.

Maybe I’m being too harsh, but it is telling that the only example where requirements are clearly set out is that for preparing the bundle, which if done this way will obviously make the judge’s job easier.

It just goes to show that, despite the best efforts of individual judges, little has changed since Lord Woolf wrote in his 1995 Access to Justice report:

‘Only too often the litigant in person is regarded as a problem for judges and for the court system rather that the person for whom the system of justice exists. The true problem is the court system and its procedures which are still too often inaccessible and incomprehensible to ordinary people.’

More guides for LiPs, however good they are, will not disguise this fact. And neither will they be a fair substitute for having a lawyer in your corner.

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