Tribunal Judge (First Tier Health, Education and Social Care Chamber) Meleri Tudur provides some tips on how to successfully manage unrepresented parties.
How long is it since you walked into a roomful of people speaking a language you don't understand and using social etiquette that is alien to you? Be it an exotic gathering in a distant country or a roomful of teenagers having a party, it is not a comfortable or pleasant experience. For most unrepresented parties, that is how using the court for the first time feels. If you are pre-warned, what do you do? You do research, you find out what is expected and you learn some key phrases. You, however, are bright, educated and literate. Not all court users have your educational advantages or an opportunity to prepare themselves for a hearing as they might wish.
My primary tribunal jurisdiction, First-tier Tribunal Special Educational Needs and Disability, was set up from the outset to facilitate participation by unrepresented appellants, who are parents of children with special educational needs and disability, potentially with their own special needs, seeking to navigate the uncharted waters of the appeal process. With changes to the funding of local authorities and educational provision, the Tribunal has increasingly seen the number of senior officers representing local authorities at hearings decline, and an increasing number of education officers with limited understanding of the legal framework underpinning the special education system representing the local authority at hearings, leading to a situation where both parties are effectively without legal representation.
Judicial office holders undertaking induction training on joining the Tribunal are told that they should assume that the judge will be the only person in the room who knows and understands the law to be applied in the appeal, although, in practice, the specialist members on the panel will also be very knowledgeable and informed about the legal framework. How then does the Tribunal ensure that we get the best from the unrepresented parties? What strategies used by the Tribunal enable it to deal with complex cases, up to six expert witnesses, very expensive school placements and unrepresented parties and get through the work in a day?
Three Cs form the basis of a successful hearing: communication, clarity and control.
Communication of the court's expectations, processes and way of working at the start of a hearing is critical to its efficient running. A short introduction before getting down to business ensures that the structure of the process is clearly defined. Boundaries are set and the unfamiliar situation takes form. It allows parties to take stock and orientate themselves. Matters to be addressed will include, who you are and what you can do? Will the hearing last an hour or a day? Will parties be allowed out of court before lunch and what do they do if they feel they need a break? Who speaks when? Do they need to stand up or sit down? Will they get a decision today or later? Setting out clearly at the start of the hearing, what is going to happen, when, how and who does what is very effective in managing expectations and enabling parties to feel more comfortable about the hearing ahead.
Clarity and simplicity are essential to ensuring good communication. Lawyers spend their working lives wrapped in the security blanket of jargon and legal terminology, indecipherable to the outside world. The etiquette and structure of court proceedings provide them with understood parameters, learnt (until recently) by attending, observing and learning through their own mistakes in court. Judges use legal language without second thought, and the meaning of 'submissions', 'cross-examination' and 'precedent' are entirely alien to most members of the public. Use language that the parties will understand. Try to look objectively at the terminology that you use: would your non-lawyer friends or teenage children understand what you are saying? If not, simplify it so that your meaning is clear and use plain English (or Welsh, as the case may be). During a hearing, be prepared to step in and help parties formulate cross-examination questions for witnesses. Many unrepresented parties will seek to address witnesses rather than ask direct questions in cross-examination and will not understand the problem if the judge becomes cross and short tempered with them, telling them to 'put the question to the witness'. Saying things more loudly does not make the meaning clearer: patience is a virtue, but clarity of expression is an even greater one! Remember that communication involves more than spoken language: be aware of and beware of your own unconscious physical responses, such as nodding in agreement or turning away from a party who is irritating you. Such action can be very irritating to them and can speak more clearly than the words you use.
Control: setting boundaries and clearly laying down the ground rules at the start puts you firmly in control of the hearing. Do not let that control slip from your grasp. Some unrepresented parties believe that the way to win their case is to prevent the other side from getting a word in edgeways: make sure that the verbose individual is contained and that the silent party is encouraged to participate and to respond to and question the evidence produced and the submissions made. Don't assume that the silent party simply has nothing to say; they may be so intimidated by the event that they don't know when to speak. Enabling participation and controlling the proceedings ensures that the parties are treated fairly and equally and that the overriding objective is fulfilled.
At the Tribunal, the element of control is taken to a level seldom seen in the courts. The Tribunal is an inquisitorial jurisdiction, and having read the papers and discussed the issues pre-hearing as a panel, it sets out a list of the issues to be considered during the hearing. It is not left to the parties to try to present their case as they see fit, but they must address the issues as set out by the Tribunal. It saves a great deal of time and the parties will be sure that they have covered all the relevant issues. Worth a try, perhaps?
Meleri Tudur
Tribunal Judge (First Tier Health, Education and Social Care Chamber)