As good as it gets? Unrepresented litigant and courtroom dynamics: a case study

Abstract

This paper examines the pragmatic competence of unrepresented litigants in court. In doing so, it engages larger themes including laymen understanding of the law and the major challenge for judges in an adversarial legal system of balancing offers of assistance with maintaining judicial neutrality. The research reported in the paper involved 72 hours of observation during a 14-day trial in a Hong Kong appellate court. The litigant in the case had represented herself previously in at least three lawsuits over a period of ten years. She had initiated each action, and two cases had gone to appeal. As well as having extensive litigation experience in this way, the litigant was also a highly educated professional, capable of speaking fluently in the professional language of the proceedings; seemingly she had also devoted a lot of time to researching and preparing her cases. These characteristics mark her out as among the most prepared of unrepresented litigants to deal with obstacles presented by legal procedures and courtroom requirements. The study contributes to the field in two main respects: 1) Perspective. Previous studies of unrepresented litigants have tended to take a top-down approach. They look at litigant behaviour from the perspective of a judge or lawyer. This study uses discourse data obtained from courtroom observation in an attempt to understand the trial from the litigant’s perspective. 2) Access to justice. The stereotypical unrepresented litigant has low income and literacy, and makes obvious mistakes in court. The litigant in this case study represents the other end of the litigant-in-person spectrum. Her courtroom struggles expose obstacles that all unrepresented litigants face, which are not easily overcome even after repeated experience of the legal system. The data show persistent misconceptions regarding the law, and reveal tensions between layman understanding of justice and the institutional delivery of legal outcomes by the courts. In recent years there has been a rapid rise in the number of unrepresented litigants in Hong Kong, as in many other jurisdictions. Better understanding of courtroom dynamics created by the behaviour of such litigants may help prevent interruptions in courtroom proceedings and improve overall public access to justice.