Hearsay ... the Journal of the Bar Association of Queensland
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Issue 78 - April 2017
Advocacy and the Litigant in Person Print E-mail

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By Bernard Porter QC 

Paper delivered to the BAQ Conference

25 March 2017

Advocacy is the art of persuasion.  As barristers, we practice that art within the framework of the rules and practices of civil and criminal litigation.  One of the characteristics of that framework is that our opponents are usually other lawyers who know, or are presumed to know, those rules and practices.

A litigant in person (LIP) presents a different challenge.  In most cases, an LIP will not know the rules and practices, will know them imperfectly or will utterly (or willfully) misunderstand them.   LIPs are not bound by ethical rules. They often do not play by the rules, sometimes quite deliberately.

And they are not always easily defeated.  Chief Justice Dixon’s last case was an appeal in the High Court from a judgment for libel in favour of an ex-jockey, who announced his appearance with “I appear for meself”.  Even the great Dixon could only swing two of the five members of the Court in that case.1  It is reported that the  jockey  gained  the  Court’s  sympathy,2  and  the  writer  detects  a  note  of sympathy in the majority judgment

Further, cases involving LIPs present particular challenges for the judge.  Some LIPs can test the patience of even the most temperate judicial officers.  LIPs also make the tribunal’s task more difficult by creating a situation where the other side of the case is rarely properly developed.  Judges are the focus of the barrister’s advocacy: their challenges become our challenges.

For all these reasons, dealing with an LIP throws up a number of novel issues which the advocate must take into account in conducting his or her case, both in an ethical manner and to the best advantage of his or her client.  The purpose of this  paper is  to  identify some  of those  issues.    The focus  is  on  commercial litigation but the observations apply in most cases.

box_1.jpgSizing Up Your Opponent


It is important when dealing with an LIP to try to obtain some insight into their character and motivation.  This will affect how the advocate approaches his or her task.  This really only comes with experience of LIPs in particular and people in general.  However here are some categories to look out for.

Perhaps the most well-known category of LIP (though not the most common kind encountered) is the so-called ‘querulous’ litigant or ‘vexatious’ litigant.  The querulous litigant is one who is obsessed with a particular issue or grievance.

Some querulous litigants pursue an issue like a modern day Don Quixote, tilting at constitutional or legal windmills.  Challenges to the validity of paper money were for a long time the quest of a number of LIPs.  They will pay no attention to any judgment contrary to their set views, but otherwise can be pleasant to deal with.

More common is the querulous litigant driven by a personal grievance, real or imagined.  The writer’s experience is that such obsessive grievance often emerges from the failure of some grand financial scheme or the loss of face as a result of failed financial dealings.  The humiliation of the loss of the family farm can be such a catalyst.

The querulous litigant has been described by one psychiatrist in the following terms3:

At times, these chronic grumblers may become ‘querulant’ (morbid complainants). In general, they have a belief of a loss sustained, are indignant and aggrieved and their language is the language of the victim, as if the loss was personalised and directed towards them in some way. They have over-optimistic expectations for compensation, over-optimistic evaluation of the importance of the loss to themselves, and they are difficult to negotiate with and generally reject all but their own estimation of a just settlement. They are persistent, demanding, rude and frequently threatening (harm to self or others). There will be evidence of significant and increasing loss in life domains, driven by their own pursuit of claim. Over time, they begin to pursue claims against others involved in the management of claims, be it their own legal counsel, judges and other officials. While claiming a wish for compensation initially, any such offers never satisfy and their claims show an increasing need for personal vindication and, at times, revenge, rather than compensation or reparation.

Despite 150 years of psychiatric research into querulous paranoia, there is no consensus as to the underlying pathology. Theories range from an underlying organic disease process, similar to schizophrenia, through to psychogenic processes; that is, certain vulnerable characters are sensitised by certain life experiences and are then struck by a key event which triggers their complaining. Preceding the querulousness, they have often received some form of blow to their individual  sense  of  self-esteem  or  security.  This  was  often  in  the  nature  of  a  loss  of relationship, through separation or death, ill health or loss of employment.

The key event is usually a genuine grievance and seems to echo previous losses. The key event is often of a type to threaten the (male) status symbols of prestige, position, power, property and rights. Environmental factors influence their complaint.

This kind of LIP has to be treated with particular caution by the advocate, both outside Court and before the Court.

box_3.jpgA further category of LIP the writer has observed is what might be called the misguided or misled LIP.   Litigants in this category comprise people who have obtained informal advice, usually from persons without legal qualifications, who assure them that they have a defence to a particular kind of claim (frequently tax claims or claims relating to mortgage securities and money lending).   These defences are usually based on some obscure and wrong point of law, though to the hopeful and untrained litigant they look impressive.

The internet age has made this situation more common.  In some cases, the LIP will  have  paid  for  the  advice,  which  often  takes  the  form  of  a  draft  court document.  People who fall for this kind of thing are usually more gullible than malicious.

Finally, and importantly, many LIPs are people who simply cannot afford legal representation or for whom the risk posed by the litigation does not justify the cost of legal representation.  An example of the latter is the appellant in Ross v Hallam [2011] QCA 92, who only belatedly realised (in the Court of Appeal) that defending himself was beyond him.

The categories I suggest are neither exhaustive, nor mutually exclusive.  However, in each case, it is helpful to try to get some insight into the background of your opponent and their motivation and character.   A name search can be helpful to find out if your opponent has form.  Also worth trying is a phrase search of some of the more unusual turns of phrase which might appear in a particularly odd looking court document.   This might turn up previous cases where usual contentions have been run before and dismissed.

A  discussion  before  Court  with  your  opponent  can  also  assist  in  trying  to understand the kind of opponent you confront.  Care must be taken in those discussions, however, as I will now discuss.

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Footnotes

  1. The Herald and Weekly Times Ltd c McGregor (1928) 41 CLR 254
  2. G. Lindsay SC, Review of Owen Dixon: A Biography (2003) 23 Aust. Bar Rev. 198
  3. Dr G. Lester, The Vexatious Litigant (2005) 17 Judicial Officers’ Bulletin 17 at 18-19 cited by Douglas J in Access to Justice-Problems of Self-Representation Hearsay Issue 55

Adrian Duffy
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