Justice According to the Powerless: the Case of Unrepresented Litigation in Hong Kong

Abstract

Based on courtroom observations and interview data with unrepresented litigants in Hong Kong, this paper examines the pragmatic competence of unrepresented litigants in the courtroom and the judicial challenge in balancing between offering assistance and maintaining neutrality, against the backdrop of an adversarial legal system. The analysis reveals the gap between the use of legal means to achieve justice and the laymen understanding of justice. Some laymen expectations about law and justice may be culturally shaped. Although weak courtroom performance by unrepresented litigants is often associated with low literacy, our data show that this ideological gap exists even for highly educated veteran litigants. Self representation presents an important window through which the systematic limits of legal order as an expression of justice may be observed.

One of the trials observed involves a veteran litigant who had represented herself in at least three lawsuits in the past ten years, all of which she had initiated against different parties and two of which went on to appeal. The 14-day trial observed was her most recent appearance in an appellate court. On top of having some litigation experience, she is also a very highly educated professional, speaks fluently the language of the proceeding, and has seemingly devoted a lot of time in researching and preparing her cases. These qualities make her as sophisticated as most unrepresented litigants could ever get; however, her powerlessness as a litigant may still be easily observed.

I highlight two interesting aspects of this paper that add to the existing literature:

1) Previous studies on unrepresented litigants in Hong Kong take a top-down approach and looks at litigant behaviour from the perspective of judges and lawyers. Using discourse data obtained from courtroom observation, this study attempts to understand the trial from the litigant’s perspective.

2) The stereotypical unrepresented litigant has low income and low literacy, and makes blatant mistakes in court. The litigant in our case study represents the other end of the spectrum. Her struggles in court reveal the more challenging hurdles that unrepresented litigants face in the courtroom: ones that are not easily eliminated despite her repeated experience with the judicial system, tenacious misconceptions that are difficult to correct, and tensions between a layman understanding of justice and the institutional delivery of justice.

Given the proliferation of unrepresented litigants in Hong Kong and in many other jurisdictions, a thorough understanding of their litigation behaviour is pertinent in improving access to justice and in preventing a potential system breakdown.