I Ain't No Fool: Deciding to Litigate in Person in the Civil Courts

Abstract

The number of litigants in person (LiPs) is thought to be rising in New Zealand. This is of increasing concern to the judiciary, court staff, and lawyers who oppose LiPs in proceedings. This article focuses on why people decide to litigate in person. It reports the results of a qualitative study involving LiPs, court staff, lawyers and judges in the New Zealand District (including Family) and High Courts. It contrasts the perceptions of judges and lawyers as to why people litigate in person with the reasons given by LiPs. The evidence suggests that the bench and bar’s perception, that people either choose to go without a lawyer or are forced to do so by cost, is not entirely accurate. Instead, the evidence suggests people have many overlapping reasons for litigating in person, some of which go beyond those contemplated by the bench and bar. These additional reasons include popular understandings of law and legal services, and the conflicting and confusing messages that are communicated to the public about the courts’ accessibility to litigants. These additional reasons are not well understood by lawyers and judges. As a result, they often interpret LiPs’ decisions to litigate in person as arrogance or unreasonableness. A more nuanced understanding of why people litigate in person is therefore required in order to change the way court staff, lawyers and judges perceive LiPs’ conduct and to perhaps alter the approach they take to assisting LiPs during the litigation process.

Keywords: Courts and adjudication, Litigation process, Litigants in person, New Zealand

JEL Classification: K00, K40