Top ten tips for a litigant in person

Litigation is an expensive process the average person cannot afford. Public funding is now so restricted that it is simply not available to most prospective litigants. Consequently, judges, barrister and solicitors have all noticed a distinct increase in the number of people conducting litigation themselves. I myself have come across many of these litigants-in-person ("LIPs") in court. Some LIPs do a good job, some less so; but it strikes me that all would benefit from good advice, not just legal advice about their cases, but advice as to how to conduct themselves in litigation so as to maximise their chances of success. So, here are my top ten tips, in no particular order:

One: Listen to what the judge is saying to you - whilst judges are not permitted to assist LIPs to the extent of giving them legal advice, they can and will help you with the practical procedures in the court, and will very commonly assist LIPs with practical information as to how prepare and run their cases more effectively. If a judge says to you that you would be well advised to obtain legal advice about your case, this often means either that there are legal points in your favour that you are missing, or, and I am afraid this is more likely, you have a hopeless case and are likely to end up with a nasty costs order against you unless your case is brought to a swift end. In either case, take his advice if you can possibly afford it.

Two: Be as co-operative as possible with the other side in preparing for hearings - there is a tendency for LIPs to think that because they are involved in a court process, that every point must be fought with the other side. However, the physical preparation for the hearing itself, in particular in terms of preparing bundles of documents for the court, and bundles of the authorities which either party wants to rely on, should be a matter for co-operation for the parties, not something to argue about.

Three: Bear in mind that, in court, truth is nothing unless it is supported by evidence, and that documentary evidence trumps oral evidence almost every time. Think very carefully about the points you need to prove to make out your case, list them, and then work out what documents or oral evidence proves each of those points. For example, if you want to prove that you built a wall, then delivery notes and invoices for bricks and mortar, as well as photographs of the wall during construction will be far more persuasive than a mere witness statement saying "I built that wall".

Four: Plan what questions you want to ask the other side's witnesses, and, if you can, write them down ahead of the hearing. You should have seen the other side's witness statements some time before the hearing, so you will have plenty of time to identify which parts of those statements you disagree with. But concentrate on the facts which are relevant or important to your claim - many LIPs waste a lot of time questioning witnesses on things which are more about the character or personality of the witness, rather than the facts.

Five: When preparing witness statements, do your best to put everything in date order, starting at the beginning and working forwards. Check your recollection against correspondence and other documentation which date from that time - i.e. the documents which have been disclosed by yourself and the other side. Your memory is almost certainly much worse than you think it is.

Six: Disclosure is an important part of most cases. It involves collecting together all of the documents which you have and which are relevant to the case, separating them into documents which the court might need to look at, and those which the court is not allowed to look at - so-called "privileged documents" - and producing a list of all of those documents the court might need to see. A common error amongst LIPs is to provide far too limited disclosure, usually limited only to documents they think assist their case, and so want the court to see. Putting all of the documents together, in date order, which have anything to do with the case - spreading your net widely, and making sure you search email correspondence as well - is a very time-consuming exercise, which most LIPs seem to leave too late, largely because they enormously under-estimate the time the exercise will take. Count on about a day for each 350 pages of documentation you have to organise and list.

Seven: Be willing, even enthusiastic about participating in mediation. Not only do courts encourage such participation by punishing refusal to participate with appropriate costs orders, but contrary to what many LIPs believe, mediation is always cheaper and faster than taking a case to a hearing before a judge, but it also has a success rate of around 75% across all cases. So, no matter how unlikely it might seem for your case to settle by agreement, do not refuse to mediate out of hand.

Eight: If you are taking documents to court which you intend to show to the judge, make sure you give copies to the other side before you go into court; indeed before anyone goes to court if possible. If you do not do so, you risk the judge ordering an adjournment at your cost. Equally, if the other side tries to give you a document before you go into court, do not refuse to accept it - this buys you no credit with the judge; indeed you will look bad for being uncooperative. Remember that litigation is a fight between different legal viewpoints, and different accounts of the facts; the more personal you make it, the less likely you are to succeed.

Nine: If you have fallen out with the other side so much that you find it difficult even to speak to them civilly - a not uncommon situation - try to remember that their legal team are not the same people, and are professionals bound by professional conduct rules. LIPs often assume that everything that the barrister on the other side say must be disagreed with on principle, but this is a dangerous assumption to make. For example, barristers are under a duty, when acting against LIPs, to bring to the court's attention legal authorities which assist the LIP, as well as those which assist their own client.

Ten: When giving evidence from the witness box - and this advice is just as sound for people who are merely appearing as witnesses in a case - do not argue with the person asking you questions (which might be another LIP, a barrister, or the judge), and do not attempt to "put your side of the argument". Although there is a time and a place for that - when you are making closing submissions after everyone has given evidence - when you are a witness, your only job is to answer the questions you have been asked. The only thing you will achieve by arguing and making submissions, is to distract the court from your evidence, and that really will not help you.

I hope these tips have been helpful, but I would invite other barristers, solicitors and LIPs to add tips from their own experience in the comments below.