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Baby Barristers
18 March, 2010  
Like pulling teeth

It’s so unfair … Junior Junior runs up against the self-represented litigant … The party with the barrister is the one to suffer

imageThe old clichés are plentiful – I don’t do my own dentistry/brain surgery/panel beating, so why is it that people think they can conduct their own legal affairs?

Litigants in person (or that great oxymoron, the self-represented) are a frustratingly common, and commonly frustrating, feature of legal practice.

From appearances in the High Court through to squabbling about a fence in VCAT, these speed bumps on the road to justice are everywhere.

I’ve been caught up in a matter this week that was originally listed for a half-day pushing to a full-day at the absolute most.

The respondent sacked their lawyers a couple of days before we were due to start and decided to press on without replacing them.

As a result the hearing ran four days. Four. Days.

When you commence a matter opposed to a litigant in person you inevitably double your opposition as the bench steps in to “redress the balance”. Presuming you can even get the matter listed.

My four day marathon had already been adjourned on the day of hearing three times at the respondent’s request.

From sick children (that one came by fax half-an-hour after we were meant to have started) to a very generic “not ready”, it doesn’t take much to convince the bench that “fairness” requires acceding to the litigant in person’s request.

Once you manage to get started, it seems “fairness” dictates that any time your opponent steers off track the tribunal will readily wade into the arena, including examining or cross examining witnesses on the party’s behalf.

Within reason this is understandable, and at times even desirable, but when you get to the point where an objection against clearly inadmissible material receives a disdainful raised eyebrow and a, “Junior, I’m sure we can leave the legal trickery aside and allow Mr Public to make his point, can’t we?”, one tends to wonder if it’s worth taking any point at all.

This is the main issue for me. In the attempts to redress the balance between the represented and non-represented, it is in fact the interests of the party who has engaged counsel who can suffer.

I’m a brave soul and I don’t mind getting a bit of a kicking from a bench here and there, but surely those who I’m representing shouldn’t be hamstrung because the other side is unrepresented and unable to articulate their case?

In an adversarial system it would be unlikely that level of intervention would occur in a contest where both parties are represented and one party just happens to have a dud barrister.

It seems an odd scenario that the party who is represented could almost be said to be at the disadvantage, given the leeway and assistance provided to the other side.

By the way, don’t ask what the result was at the end of the four days I recently spent with a litigant in person.

I don’t want to talk about it …


Reader Comments

Posted by: Anonymous
Date: March 17, 2010, 10:30 pm

Dear Junior Junior It happens to us all : Howlin v Clarence Council (2009) TASSC 18......fortunately though the Full Court exists to correct error...
Posted by: Anonymous
Date: May 8, 2010, 11:31 pm

Sorry, how much does a HC Appeal cost again these days? Even if you end up getting your costs awarded, you still have to chase them up for the cash. All good to say they'll fix it - but they'll fix it in a couple of years at high cost when you shouldn't have even been in that position in the first place.