Principal Investigator Dr Bridgette Toy-Cronin
This study examined the experience people going to court without a lawyer in High Court civil cases and District Court family and civil cases. People going to court without a lawyer (called litigants in person or self-represented litigants) participated in the study, as well as lawyers, judges and court staff. The study examined why people litigate in person and the challenges that litigants in person encounter as they prepare their cases, try to negotiate with the other party, appear in court and manage the process after court. The study considered various policy reforms and encouraged a re-evaluation of the stereotypical view of litigants in person.
Related centre objective
“To carry out research on legal issues relating to how a more accessible, affordable and efficient legal system can be created for the benefit of all citizens”
Using several qualitative methods including interviews, document review and participant observation, this research asked, first, why are litigants going to New Zealand’s civil courts without a lawyer? Second, what was their experience of litigating in person? Third, how did the inhabitants of the court system – the judges, lawyers and court staff – perceive litigants in person and respond to them?
The study argues that there is a contradiction underlying the promise of litigant in person access to the courts. The courts promise a place where citizens’ can enforce their rights or defend themselves. Without access to the courts, people’s rights are empty; they are there on paper but do not exist in reality. Yet the courts do not have the resources to hear all the claims citizens have. Even expansion of their resources would not be sufficient, as demand is elastic. So, to appear to provide justice and control their process, the courts must both promise and limit access simultaneously. Normally lawyers play a central role in mediating such access, by screening and translating claims, and negotiating clients towards settlement. Litigants in person come straight to the courts, however, and threaten this delicate balance. They also struggle to access the courts in a meaningful way, not necessarily because of any particular personal deficits, but because there are so many complexities and conflicts that cannot be easily overcome by a litigant advocating their own cause. Various subtle means of discouraging access are deployed to steer litigants in person away from accessing the courts in person while trying not to undermine the appearance of accessibility.
Some reform may be possible within the court system, including better information and more access to legal services (provided by innovation in how legal services are offered). There is no single solution to the issue however, the rise of litigants in person can be interpreted as a warning bell that not all is well with our justice system and that more fundamental reform is required.
We prepared a paper for the New Zealand Bar Association Working Group on Access to Justice outlining new business models for legal practice, many of which have the promise of making services more accessible to litigants: New Business Models for Legal Services.