Nyst Legal director and litigation lawyer Brendan Nyst follows the journey of the self-represented litigant.
Q. Should I represent myself in court?
A. I think it was Abraham Lincoln who once said, “Any man who represents himself in court has a fool for a client.” That’s perhaps a harsh generalisation, but there’s no doubt the courtroom can be very alien territory for the untrained.
While money may not buy happiness, it can deliver lots of lawyering. In the cutthroat world of modern litigation, those with the deepest pockets are very often apt to be at a distinct advantage. Of course, the same is true of any competitive environment, from sport to industry to military conflict. But in court, the stakes can get particularly high.
Despite that sobering reality, in many ways our judicial system works hard to even up the playing field wherever possible.
For starters, pro bono, or unpaid, work has always been a part of the legal tradition. Even before the advent of the modern legal aid system, successful and well-respected lawyers routinely dedicated their time, energy, and resources to ensure the indigent and disadvantaged were properly represented in the courts of law.
In more recent years, that time-honoured tradition has been supplemented, and to some extent subsumed, by the legal aid promise by governments of every persuasion to ensure ‘all men are equal before the law’.
But the truth is equality can prove to be an all-too-expensive commodity. The Queensland Law Society’s annual Access to Justice Scorecard currently rates the most significant barrier to justice as affordable legal representation, followed closely by inadequate funding of legal assistance services.
This is particularly impactful when it comes to commercial litigation. The legal aid dollar is rarely unlimited, and so impecunious civil litigants are often left out on their own. Luckily for them, the judiciary remains ever mindful of the uphill battle self-litigants can face in our courts and, as a result, judges and magistrates are usually keen to offer a helping hand to steer non-lawyers through the complicated process in which they are otherwise invariably hopelessly out-gunned. Often to the frustration and chagrin of the lawyers opposing them, self-litigants are almost invariably afforded uncustomary leeway, granted extra time and assistance, and gifted second chances, sometimes even third and fourth.
Having said that, judges, magistrates, barristers, and solicitors unanimously dread the agonising prospect of litigation with non-lawyer litigants, because such proceedings have an infamous tendency to become unnecessarily delayed and bogged down. Otherwise straightforward processes sometimes become needlessly complicated and, as a result, the whole process is often made far more difficult, time-consuming, and costly.
At times it even feels arguably unfair to those who have paid to have lawyers represent them, but in the end no one could fairly argue it does not serve the interests of promoting equal justice.
Not so long ago, in a case called Nobarani v Mariconte, the High Court of Australia reminded us of the difficult job courts face in balancing the need to give self-litigants ‘a fair go’, with the imperative of maintaining the rules and procedures of court.
In that case, which concerned a probate application brought in the NSW Supreme Court, one of the parties, Mr Nobarani, appeared on his own behalf. By all accounts he demonstrated a pretty slender appreciation of appropriate court procedure or the rules of evidence; additionally, his command of the English language was somewhat limited.
As a consequence, his conduct of the trial was less orderly than one would have hoped. In fact, the trial judge described it as “almost incomprehensible”, and while, as the trial progressed, Mr Nobarani repeatedly sought adjournments to call witnesses, read documents, and adduce expert opinion, no adjournment was granted by the judge.
When the verdict ultimately went against him, Mr Nobarani finally got himself some lawyers and appealed — on the basis that he had not been given a fair trial. The High Court agreed, ruling that given his inexperience and lack of training and the fact he had been given limited time to prepare the proceedings, issue subpoenas, arrange witnesses, and organise his expert evidence, it was unsurprising his case was vague and disordered. A new trial was ordered.
So, should you represent yourself in court? I guess sometimes you have no choice. But wherever you can, you should certainly explore your options because — make no mistake — the courtroom can be a very foreign environment to anyone not skilled and experienced in its rules and processes.
Even if you’re involved in a claim through QCAT or a similar lawyer-free jurisdiction, it can be money very well spent to seek competent legal advice early in the process. A carefully-thought-out and well-structured claim, or defence, can mean a timely and effective settlement, which could save you thousands.
So if you are going to court, my advice would be to get yourself professional, competent legal advice. If you can’t do that, for whatever reason, try to skill up as best you can in advance, and then take advantage of whatever services, advice, and assistance are at your disposal through the courts system.
Brendan Nyst, Dispute Resolution & Litigation, Wills & Estates, Defamation, Nyst Legal – www.nystlegal.com.au