Kate Leader talks to us about her new book, Litigants in Person in the Civil Justice System: In Their Own Words, published by Hart Publishing (2024).
This book is about the experiences of litigants in person (LiPs) in the civil justice system, in their own words. Using oral history life stories interviews, I talked to people who represented themselves to find out what it was like going to law without a lawyer. What I learned is that for most LiPs, the experience of going to law is far worse than we have previously understood. We know that representing oneself is difficult, but what this book shows is that it is also frustrating, exhausting and traumatic. Its impact can be life-changing, destructive and destabilising. The LiPs in these pages report relationship breakdowns, mental health crises, loss of jobs, income and homes, as well as a deep alienation from law and legal proceedings. Most find going to law to be so far from what they expected as to have a profoundly disillusioning effect on their trust in legal professionals and legal institutions.
I wrote this book for a number of reasons: some are practical, some are about the law and some are about power. Practically, the number of LiPs is going up, so we have reason to learn about them and their experiences. In terms of the law, the experience of LiPs in these pages shows that legal proceedings, despite paying lip service to ‘ access to justice ’ , remain inaccessible, complex and exclusionary. In terms of power, one of the most important things this book shows is that encounters with legal professionals are at the heart of the nature of LiP experiences, in particular the way in which professionalism, including professional norms and the languages of professions, functions to exclude them. One of the biggest mistakes we make when thinking about LiPs is to consider them in isolation. But LiP difficulties are not always (or even often) problems inherent to LiPs; instead, they are indicative of systemic inadequacies in the civil justice system itself, a system that theoretically provides access for LiPs but which functionally excludes them. As Lord Woolf put it:
Only too often the litigant in person is regarded as a problem for judges and for the court system rather than the person for whom the system of civil justice exists. The true problem is the court system and its procedures, which are still too often inaccessible and incomprehensible to ordinary people.
So, learning about LiPs allows us also to learn some important things: how we treat laypersons in the law; the law ’ s exclusionary complexity; and, perhaps most importantly, the profound undermining of trust and faith in legal processes that can result from negative experiences of going to law.
Kate: Did you do research [on how to behave in court]?Neil: No, what I, it’s probably upstairs, I’d got a book out of the library, I bought a book from Waterstones or something called Advocacy at the Bar. Advocacy at the Bar and I read a bit of that. I went down to court and quite, quite funny I just, I wanted to see how the barristers, where they sat in court, and how they addressed the court, and what they did. So I remember, a particularly funny case, there were about six defendants in this one case and each one had got their own barrister and they were all bobbing up and down, they were all sat on the same row all with the wigs and the black thing on, they looked like pistons in a car, bobbing up, bobbing, when one sat down, the other one … in no particular order, it was sort of random bobbing up and down. I found it quite funny. I don’t think I learned a lot apart from you’ve got to call a judge in the High Court My Lord. … [Y]eah I just blagged it, blagged it all the way through.
How should LiPs behave in court? Since the coming into force of LASPO 2012 in April 2013, and the concomitant rise of unrepresented litigants ending up in courtrooms, there has been considerable effort by legal practitioners and other legal service providers to provide guidance and advice on this matter. The Bar Council has released guidance for LiPs, A Guide to Representing Yourself in Court, and there are other similar documents and sources, such as AdviceNow’s website, which has a page called ‘Going to court or tribunal without the help of a lawyer’. These guides, produced by the Citizens Advice Bureau, similar to the guidance produced by the Bar Council, envisage specific scenarios in which and times when LiPs might find themselves in court, and attempt to explain what they should do and how they should behave. One of the first things both the Bar Council and the Royal Courts of Justice guides emphasise is that a LiP needs to disregard anything he or she may have seen on television. As the Royal Courts of Justice guide puts it: Forget everything you see on the telly. Most court hearings in TV programmes are about crime – and that is not what we are talking about here and anyway they focus on the drama of the story rather than reality! This is echoed by the Bar Council, whose guide advises:
Keep it simple. Throughout the Hearing, use simple, non-legal language as much as you can. Speak in short sentences. You might be tempted to speak like lawyers speak on television. Resist this temptation. Lawyers do not really speak like that. Some bad lawyers do, but judges hate it. Judges just want you to say what you mean in plain English. Clearly, the emphasis here is to persuade LiPs that they should not behave like lawyers they have seen on television programmes, because these shows tend to be from the US and depict criminal proceedings and will lead LiPs astray. The repetition of this advice in both guides suggests that this is a genuine problem, and this is arguably supported by the fact that many of the interviewees in this study had a far more intimate knowledge of the law from television than they did from reality. But what this also indicates is that many of these LiPs will not have attended a courtroom before and will have no prior knowledge of what it will be like. So they will be quite likely to have only ever seen courtrooms on television. This means that, when considering how they should behave, not only do LiPs lack any experience of the proceedings in which they will be acting, but they are also entering unfamiliar and frequently intimidating environments. As Marie describes, attending a local magistrates’ court for a civil hearing: The courtroom? It felt like I’d committed a crime. It really, really did, walking in, never been in front of the judge, never been in a courtroom or anything. It was horrendous. It was so, the courtroom themself looked like, well look like they do on TV and that and, and its just like, you know when you see them on TV and you think oh right, whatever, but when you’re actually in there it’s so intimidating. And like I say, you feel like you committed a crime or something. Marie’s extract suggests that the very fact that LiPs might base their knowledge of courtrooms on television may make them more intimidating, as they are more likely to associate courts with criminality, punishment or imprisonment. In this respect, many LiPs may already face a behavioural ‘handicap’: intimidation and fear. Putting aside the question of intimidation for now, we might begin this section by asking generally, how can one behave well in a courtroom? For a LiP, an obvious place to start might be to watch and imitate the behaviour of legal professionals. This approach is implied in the above guides, when LiPs are told that when they speak plainly, they are following the strategy of how lawyers ‘really’ speak, and that this is a desirable phenomenon. This is also what Neil does in the extract at the start of this section; he attends a courtroom and observes the behaviour of legal professionals. But Neil clearly finds the experience largely comical. In this respect, it does not seem to be a helpful technique for him. More than this, though, Neil’s reception of the behaviour and dress of barristers serves to remind us that there is a significant gap between what he, and other laypersons, would consider normal behaviour in a courtroom and what legal professionals themselves might consider normal behaviour. Neil clearly finds the behaviour of the barristers bizarre, rather than instructive; referring to the ‘random bobbing up and down’ of barristers, he cannot make any sense of it and cannot use it as a basis for his own behaviour. So how does this gap between two different normalities of behaviour, between that of the LiP and that of the legal professional, come about? This is arguably because the performance of legality is another example of field-specific knowledge learned through repeated experience. No junior barrister or trainee solicitor enters the courtroom fully embodying the expected behaviour and traits of their role; it is something they learn through rehearsal and repetition. This practice enables these individuals to habituate and naturalise their experiences, including overcoming their initial intimidation and establishing familiarity with other participants with whom they may share a courtroom on more than one occasion. Through the example of their senior colleagues, or mistakes or failures on their part, these individuals will learn how to behave appropriately. But the boundaries of what is ‘appropriate’ or inappropriate behaviour in a courtroom is not a matter of common sense (or rather it is a matter of common sense in the sense that ‘common sense’ itself is a field-specific construct), which is why it is very different from what Neil would recognise as normal. A legal professional who performs well in a courtroom, then, is an individual who gives the appearance of acting in a way that seems professional, skilful or persuasive to his or her fellow legal practitioners. But this kind of assessment of skill ‒ what is good ‒ can only exist in comparison to its opposite: what is bad. Poor performance, in the case of legal professionals, might therefore be any behaviour that seemed histrionic, clumsy or overtly theatrical. But while the latter is sometimes characterised as ‘acting up’ or performing, whereas the former constitutes behaving ‘normally’, a better way of interpreting this behaviour would be to understand it as the juncture, for legal professionals, between ‘good acting’ and ‘bad acting’. Bad acting, on the part of a legal professional, is any overtly theatrical behaviour that deviates from what is appropriate. Good acting, on the other hand, is misrecognised as ‘natural’, but it is what I call legal naturalism; a style of performance habituated by legal professionals that mobilises years of learning how to behave, move or speak, in a way in which it seems to be relatively effortless. Key to the concept of legal naturalism is the role of the habituated and the preconscious. As Bourdieu would argue, this acquisition and refinement of habitus is not explicitly recognised, and consequently legal professionals will see their own competency as ‘natural’. When a professional attains such skill, this is only possible through forgetting how this transformation took place:
[…][i]gnoring the social and cultural conditions underlying such an experience, and at the same time treating as a birthright the virtuosity acquired through long familiarization or through the exercises of a methodical training … for the acquisition of art competence in the sense of mastery of all the means for the specific appropriation of works of art is a self-seeking silence because it is what makes it possible to legitimatise a social privilege by pretending that it is a gift of nature.
Performative competence in a court of law, then, could be argued to be a ‘social privilege’ masquerading as a ‘gift of nature’. The point to take from this analysis is that legal naturalism is of course therefore not obvious to a LiP; it is not even obvious to legal professionals themselves. Because lawyers and judges have habituated these courtroom performance skills themselves, they are likely to underestimate how difficult ‒ or impossible ‒ it is for an outsider to master them. In this respect, imagining that performative skills can be ‘put on’ by LiPs by following a guidebook conceals the inequality that divides the world of legal professionals from that of laypersons.