Posted on | April 12, 2013 | 49 Comments
Litigants in Person are a lot like armadillos. I know this: I’ve written a book about them (Litigants in Person not armadillos). Although, unlike Harry Enfield, I’ve found them sometimes to be a bit more spiky than smooth.
But I’ve been thinking about the internal bit a lot lately, because I think it’s the key to working out how to handle that spiky exterior.
Last week I were on t’telly. I travelled all the way up to Salford to Media City, to a world full of producers and makeup artists and green rooms full of pain au chocolat, and I sat on that red BBC Breakfast sofa and tried to pretend I wasn’t petrified. I only had to talk for about 20 seconds, and to answer questions I can happily answer without a thought – when I’m in my comfort zone. I’m told I didn’t look like the rabbit in headlights that I felt myself to be, that I looked calm and collected and sounded reasonable. But looks are deceptive. Like a Dime Bar. Sort of.
On the 6.20am slot, hairsprayed and blushered and eyelined to within an inch of my life in order to disguise the fact I was scarcely awake, I heard myself drawing an analogy between my fish-out-of-water sensations on that sofa and the fear engendered by an unfamiliar environment for a litigant in person. I’m a lawyer, but I’m still petrified here today I said (or something along those lines – when I’m nervous my recall is poor). They had shown a clip of a woman saying she was used to public speaking and she’d be happy to represent herself in court. I didn’t think it was that straightforward – I think it’s about being in an unfamiliar environment where you don’t understand the rules. And I can’t stop thinking about my analogy – because I think I inadvertently articulated something quite important.
As it happens I was able to overcome those feelings and get through my own personal trial without swearing, burping or saying something hideously embarrassing – but we barristers are used to taking a deep breath and then plunging into what we know will be excruciatingly embarrassing submissions that cannot make up for an unsustainable position. We crack on, do our best and focus on our 4 o’clock horizon (not that we ever finish at 4!). It’s not quite the same for a litigant in person who might well clam up, fail to articulate their point or get angry or upset – and who has a vested interest in the outcome. But, all that said, being on telly was way way out of my comfort zone and whilst I may have appeared as a well coiffured armadillo on the outside I was mush on the inside. It’s a miracle it didn’t show, and I suppose some comfort to those in similar circumstances that your nerves might not notice that much.
But I think that all lawyers would do well to remember that feeling – the one you had in the pit of your stomach the first time you mooted or the first time you were on your feet proper (and in my case every time thereafter for the next five years). And remember that if you are a lawyer you have a certain aptitude for advocacy above and beyond the general public. If you want to work towards a resolution of a dispute on behalf of a client you need to try and understand a bit about what it is like to be a litigant in person – to imagine their experience of the process. And frankly, it’s something you should just do, as a fellow human being. It’s called empathy and lawyers should be better at it.
As an aside this experience also set me thinking about the likelihood that in future there will more often be press in court than we at the family bar are presently used to. I am in awe of advocates who operate in open courts, particularly those where there are juries and routinely members of the public and the press. An inadvertent spoonerism or a stumble is embarrassing whenever it happens, but I am used to a limited audience and an audience whose identity is known. Although I support greater transparency, on a personal level I’m apprehensive about being watched – it’s not what I’m used to. I wonder if it will make some advocates choose their words more carefully – and then I wonder if it will affect the ability of litigants in person to engage, to give frank evidence and to articulate their case. I don’t know the answer but that sofa experience, the knowledge of that vast unknown audience, really had a profound impact on me. On one level the oxygen of publicity is healthy, particularly in the case of those who are cavalier about manipulating the truth to their own ends. But it may be stifling for those who are already out of their comfort zone and who are currently helped by knowing that – if nothing else – their very personal issues are private. Some litigants in person will want the press in court to see and report the injustice or perceived injustice, to hear the lies and their rebuttal of them. Others who have important truths to tell may feel unable to tell them. In either extreme lies a danger than neither parent nor child will have access to justice.
Someone (of course) will say that me going on a jolly to Salford and sitting on a sofa talking rot for 20 seconds is not comparable to the experience of a litigant in person, to the experience of a father desperately trying to persuade the courts to let him see his children, in the face of heinous fabricated allegations (for example) – and that it is either foolish or offensive to draw such a parallel. Of course. I haven’t been in that situation. But it did make me think – sh*t, it must be truly terrifying, awful, to have to do this stuff alone, when the stakes are so high and when everyone else but you is totally familiar with how it works. And I am a parent, so I know how blindly passionate we can be about our kids, how terrifying the thought of losing them is. And the fear of financial uncertainty is not unfamiliar to those of us whose income depends on the whim of the Legal Aid Agency.
And those of you whose read this blog will know that I have had my own experience of protracted litigation in which I was, for a time, a litigant in person against whom allegations were made (not a family case and the allegations were not made out – it’s a long story and rather dull). I was legally qualified (although far from an expert in the area of law in question), used to advocacy, and “only” dealing with a litigant in person rather than a lawyer on the other side. Still, the one hearing when I did represent myself – even though I was safe in the knowledge that the court was bound to come down in my favour (it did), and even though I knew I had nothing to worry about – left me jittery, weak kneed and less than my usual articulate self (not least because there were assorted counsel sitting at the back whilst waiting for their case to come on). Based on my sofa experience I guess it probably didn’t show (smooth on the outside), but I didn’t enjoy it. This experience in particular gave me some insight into how litigants must feel when they are defending themselves against unfair or untruthful allegations, or who are faced with litigation brought by an ex who just WON’T give up – even when they are represented. It is draining, irritating, upsetting, frustrating. In my case litigation dragged on for 3 1/2 years notwithstanding its lack of merit (as found by every judge who dealt with it). I didn’t want to be involved in litigation. I wanted to get on with my life and to focus on my kids. But when you are faced with someone who is determined to persist in their fight for what they see as justice you are forced into responding, defending your reputation, correcting errors, stating the obvious. Again and again.
This is what it must be like for many parents. Some will be faced with constant accusations of inappropriate behaviour raised as a barrier to contact, others will be faced with never ending applications for more contact from a parent who is just never satisfied. Mediation in those cases? *hollow laughter* You can’t mediate with the litigant who is “fighting the fight”, who is determined to “win” or to secure “justice”, asssured of his righteousness.
What I’ve learned from this is that there is often a power imbalance in litigation, and one that is somehow enhanced through the process itself – the persistent litigant has control on his (or her) side, and that persistence can grind down the respondent to it, the exercise of control can retraumatise those who experienced it in the course of the relationship. Equally, the primary carer resisting contact has one big card on her (or his) deck – access to the child, and in practice the power to make contact happen or not. In some (many) cases the parents each fit one of those tropes. And it is crucial I think to remember that in some contexts even litigants in person can wield significant power, through manipulation of court process and their very status as a litigant in person, through persistence of litigation – and those are things that both courts and those on the other end of the dispute find very difficult to deal with.
Armadillo means “little armoured one” in Spanish. We need all to remember that a smooth exterior may not tell us what is really going on inside.