A Committee of English and Welsh Judges have put together a handbook for what they call Litigants In Person, and we call the self-represented. While the document has received some criticism, there are some elements that might be useful for us to emulate, or at least think about. These include the use of headlines in such manuals, explanation of the McKenzie Friend concept, simpler ways of starting cases, and the concept of proportionality in decision-making about procedures.
For example, one nice feature that we might want to copy in the US is that each chapter begins with “headlines.” Here is an example:
(1) To bring a claim, the Claimant must have a ‘cause of action’ recognised in law.
(2) If a Defendant wishes to challenge the Claimant’s claim, he must raise either issues of fact or issues of law or both. Most cases involve only issues of fact.
(3) It is essential for you as a litigant to identify the issues of fact in your case so that you can concentrate on what is really important in your case.
(4) The court will sometimes direct parties to prepare a list of issues. You should welcome such a direction, because you will then see what your opponent considers to be the issues, and, possibly, the judge may make helpful observations about what appear to be or appear not to be issues in the case.
Those of us who find it useful to use the example of McKenzie Friends, may find this useful:
Legal ‘consultants’ and professional McKenzie Friends
There are lay people who offer advice and representation services to litigants in person in return for a fee. Some are reliable, many are not. Remember only a barrister or a solicitor can speak on your behalf in court. Sometimes an individual judge may permit a particular lay representative to address the court in appropriate circumstances, but this is a matter entirely for the judge in his or her discretion.
The McKenzie Friend. The original idea of the McKenzie Friend was that someone known to the litigant (hence ‘friend’) would provide help and support to the litigant during the hearing. The McKenzie Friend would be able, for example, to assist with documents or remind the litigant quietly of questions to put to witnesses or points to make to the judge in the closing address. It is now possible for a litigant to find a McKenzie Friend on the internet. The authors would not encourage you to use the services of someone you did not know before the litigation started to act in the capacity of friend, but we acknowledge that some advisers can provide useful help and assistance. Remember that there is no regulation of such ‘friends’.
Those interested in a simpler way of starting cases, incluidng those who think the current state court service of process system is needlessly complicated might find this UK process, in which the initial form is delivered to the defendants by the court, intriguing.
When completed you should submit the form to the court, with enough copies for each defendant, either by attending at the court office or by post, together with the court fee, where applicable. The fee can be paid in cash, by cheque payable to ‘HM Courts & Tribunal Service’, or by debit card.
A claim on line is started at http://www.moneyclaim.gov.uk. The court fee is calculated automatically and can be paid by credit or debit card. The online guidance explains the process but there is also a help desk that can be contacted in case of problems. The number is listed on the website.7.14 After the proceedings have been started the court will inform the Claimant that the claim has been issued by sending a ‘Notice of Issue’. The court will also send each defendant a copy of the claim together with the notes of guidance. Defendants have the option of admitting the claim in whole or in part or defending it. (bold added)
Those interested in ensuring that “justice” is not lost in procedure, and those interested in not wasting resources may be interested in this explanation of the Civil Rules:
The Overriding Objective
CPR Part 1.1 provides that “These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost”. ‘Dealing with a case justly’ has always been the aim of the English civil court, but from 1 April 2013 this ‘overriding objective’ is given a new definition. By virtue of CPR Part 1.2 “Dealing with a case justly and at proportionate costs includes, so far as is practicable –
(a) ensuring that the parties are on an equal footing;
(b) saving expense;
(c) dealing with the case in ways which are proportionate –
(i) to the amount of money involved;
(ii) to the importance of the case;
(iii) to the complexity of the issues; and
(iv) to the financial position of each party;
(d) ensuring that it is dealt with expeditiously and fairly; and
(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.
(f) enforcing compliance with rules, practice directions and orders.”