One of the biggest challenges facing advocates at the moment is the increase in the number of litigants in person (LiPs). Soraya Pascoe discusses how she handled an LiP giving evidence against her client in the Family Court, and the steps she took to keep proceedings on an even keel.
Despite some guidance from the court, LiPs often struggle to make sense of their case. Unable to obtain basic legal advice from any source, it’s not unusual for the LiP to draft a long witness statement containing various points not relevant in law. This is often a precursor to a long and unstructured appearance in the witness box.
I recently came across a situation where, in a final hearing, there was a large number of allegations made by the respondent, who was acting in person, against my client. The matter was listed for two hours before a circuit judge. My client understandably didn’t want to be part-heard.
I took the following steps to keep structure in the proceedings and assist the court. I hope these assist you if you face a similar situation.
Prepare for the hearing by first drafting a position statement in which the other side’s allegations are particularised with your client’s responses. Focus on what would be normally appropriate in a Scott Schedule, explaining why certain allegations are not relevant (e.g. they are historic).
At the hearing, treat the LiP’s oral evidence as a two-stage process.
If the judge wants to hear evidence-in-chief by the LiP, and does not allow you to go straight to cross-examination, seek judicial approval to ask the witness about their evidence as if you were taking them through their evidence-in-chief, but only by way of confirming what their allegations are.
Confirm with the judge that the allegations you intend to focus on are just the ones the court is concerned with. Remember it is not your role to ask whether the LiP is adopting their statement. Let the court do that.
At stage one, it is important that you make it very clear to the LiP that you are only clarifying their evidence. When they have given their evidence-in-chief, make sure that you inform them that you are now going to ask questions on behalf of your client.
The object here is to assist the court. You are not acting as the other party’s advocate - rather, you are just asking them to focus on the relevant allegations so that your client can answer them. Be careful, of course, to be very succinct and not to take them through a narrative. The purpose is to keep the proceedings on a proper course.
Advocate: Mrs Bloggs, you have made a very long statement in these proceedings, and I just want to clarify what the main allegations are that you are making against my client.
A: I am going to focus on eight examples which you say are incidents between yourself and my client. As you are aware, my client does not accept that any of these incidents occurred, and I will ask you questions on my client’s behalf later. For now, I just want to be clear as to what it is you allege.
On 1 May last year, you say my client threw a cup at you. I am just clarifying that that is your evidence.
A: On the next day, you say he slammed the door in your face. My client is going to give his account in his own evidence, but that is what you allege?
And so on.
So, by narrowing down the relevant issues in the statement, you have assisted the court in focusing on the relevant matters in hand. You haven’t asked the LiP to expand on their evidence, and so you are steering clear of becoming their advocate. After clarifying the issues, you may wish to pause for judicial approval to start cross-examination. It may be good to remind the LiP that their written evidence is, in any case, before the court, and for clarity’s sake, explain whether or not their whole evidence is disputed before starting to cross-examine on the narrowed-down points.