How To "Handle" The Growing Number Of Self Represented Litigants? [SRLs] Make Them Lawyers!

What an excellent piece of literature: From the judicial Commission of NSW: Handbook for Judicial Officers

*****The contents of this article are owned and credited to judicial Commission of NSW:*****

"It has been said there are three things that can be done in relation to self-representation by litigants: one is to get them lawyers, the second is to make them lawyers and the third is to change the system. Self-representation has reached a level in many courts where it is common for at least one of the parties to be unrepresented for one half of the time. This means that courts are no longer dealing with a minority aberration but are being obliged to contend with change which may require altering the way in which courts operate. If it becomes the norm for many litigants to be self-represented, the justification for retaining existing court procedures based on parties’ being legally represented may no longer be valid."

https://www.judcom.nsw.gov.au/publications/benchbks/judicial_officers/self_represented_litigants.html

"Making them lawyers

If a SRL is not able to obtain any sort of legal assistance, an alternative means of assisting SRLs is to provide them with some sort of training or information so they can undertake their own litigation. (The SRS is one way of doing this.) Obviously, the type of assistance provided to the SRL will depend on the needs of the individual SRL. “[N]ot all [SRLs] are created equal” and some need more guidance than others.

Information and assistance can be provided to SRLs from a variety of sources — court website, information sessions, and the Bench, to name a few. This section examines each of these and the issues surrounding them.

Assistance from the Bench

Where there is a SRL in proceedings before the court, the court has a role in providing the SRL with information. This role of the court has been the subject of some discussion in case law.

In Re F: Litigants in Person Guidelines49?(“Re F”) the Full Court of the Family Court considered the principles in?Johnson v Johnson50?and set out revised guidelines for judges when dealing with SRLs. Those guidelines are:

1.? a judge should ensure as far as is possible that procedural fairness is afforded to all parties whether represented or appearing in person in order to ensure a fair trial;

2.? a judge should inform the litigant in person of the manner in which the trial is to proceed, the order of calling witnesses and the right which he or she has to cross examine the witnesses;

3.? a judge should explain to the litigant in person any procedures relevant to the litigation;

4.? a judge should generally assist the litigant in person by taking basic information from witnesses called, such as name, address and occupation;

5.?if a change in the normal procedure is requested by the other parties such as the calling of witnesses out of turn the judge may, if he/she considers that there is any serious possibility of such a change causing any injustice to a litigant in person, explain to the unrepresented party the effect and perhaps the undesirability of the interposition of witnesses and his or her right to object to that course;

6.? a judge may provide general advice to a litigant in person that he or she has the right to object to inadmissible evidence, and to inquire whether he or she so objects. A judge is not obliged to provide advice on each occasion that particular questions or documents arise;

7.? if a question is asked, or evidence is sought to be tendered in respect of which the litigant in person has a possible claim of privilege, to inform the litigant of his or her rights;

8.? a judge should attempt to clarify the substance of the submissions of the litigant in person, expecially in cases where, because of garrulous or misconceieved advocacy, the substantive issues are either ignored, given little attention or obfuscated …

9.? where the interests of justice and the circumstances of the case require it, a judge may:

draw attention to the law applied by the court in determining issues before it;

question witnesses;

identify applications or submissions which ought to be put to the court;

suggest procedural steps that may be taken by a party;

clarify the particulars of the orders sought by a litigant in person or the bases for such orders.

The concept of the judicial officer’s role when assisting a SRL in court was considered in Kenny v Ritter:"

CASE LAW CAN BE FOUND HERE:

[2009] SASC 139; 52 MVR 360; 263 LSJS 158

https://jade.io/article/94294