Executive summary

Concern has grown in recent years about individuals appearing in court without representation.This has led to research in the United States, Canada, Australia and the United Kingdom studying self-represented litigants, why they appear without a lawyer, and the effect of self-representation.

New Zealand has shared this concern. Until now, no formal, similar research has been undertaken. The Law Commission in 2003 therefore recommended that research be conducted in New Zealand.

The research described in this report was similar to the international studies. The objectives were to study self-represented litigants in the family and criminal summary jurisdictions of district courts, in particular answering the following questions:

• What are the key characteristics of self-represented litigants?
• Why are they self-represented?
• What effect does their lack of representation have on them, the other party, the court process, the judiciary, court staff, lawyers and others?
• To what extent are information and resources accessed by self-represented litigants?

It was not intended to recommend law reform or recommend what should or should not be done for self-represented litigants.

The research was undertaken in 2006–07 in eight courts in five cities. These courts were chosen to reflect demographic and regional spreads.

In the criminal summary jurisdiction, while qualitative interviews were held with 55 key informants, there were difficulties recruiting self-represented criminal litigants so these interviews were discontinued. The proportion of cases involving self-represented litigants ranged from 1% in Dunedin to 7% in Palmerston North over the varying study periods. In the family jurisdiction, 133 interviews were held with 54 self-represented litigants, 21 represented other parties and 58 key informants. The proportion of cases involving a self-represented litigant ranged from 17% in Tauranga to 7% in Manukau over the study periods. Quantitative analyses determined demographic and specific trends. Additional analyses determined more in-depth demographic and socioeconomic details of the interviewed litigants from the family jurisdiction. Key informants included judges, lawyers, various court employees and Community Law Centre staff.

What are the key characteristics of self-represented litigants?

Criminal jurisdiction

In the criminal jurisdiction little recorded data were available to determine actual numbers of self-represented litigants and if the number of self-represented litigants had increased in recent years. The courts undertook a short data collection exercise specifically for the study which revealed regional variations in the numbers of individuals appearing self-represented (ranging from 1% to 7% of cases). In the absence of long term trend data, key informants were asked whether they thought there had been a change in the numbers of self-represented litigants, but no clear consensus was reached. In general it appears that self-represented litigants do not differ markedly from represented litigants in their key characteristics.

Family jurisdiction

In the family jurisdiction little recorded data were available to determine the numbers of self-represented litigants and if the number of self-represented litigants had increased in recent years. Family Court staff also undertook a short data collection exercise specifically for the study which revealed regional variations in the numbers of individuals appearing self-represented (ranging from 7% to 17% of cases). Most key informants suggested that the number of self-represented litigants in the family jurisdiction had increased over the past five years. This finding is in line with that found internationally, not only in the Family Court, but also in other jurisdictions. Without historical trend data we could not say whether this perception was true.

Self-represented litigants in the Family Court were likely to be New Zealand European males with an average age of 37, appearing for care of children and domestic violence cases. They were more likely to be paid full-time employees, most earning more than $30,000 a year. These characteristics differed from those found in the family jurisdiction internationally.

Why are they self-represented?

Cost was the most commonly cited reason. Many self-represented litigants’ incomes were not low enough to be eligible for legal aid, and they felt their income was insufficient to afford a lawyer. In March 2007, a Legal Services Amendment Act was passed, which now enables a larger proportion of New Zealanders to obtain legal aid by increasing the financial threshold and simplifying the criteria, but also requires a higher proportion of recipients to pay back their grant. Self-represented litigants’ earnings were higher in general than that of the represented litigants. While very few were in the highest income categories, they were more likely to be in full-time, paid work. Very few had applied for legal aid during the study period. Our findings mirror those found in the international research.

Other reasons for self-representation included:

• Litigants appearing in the criminal court on minor charges are less likely to be eligible for legal aid. This fits with our findings about the types of offences the litigants are charged with.
• Self-represented litigants’ perceptions that the case was straightforward enough to represent themselves. In the criminal court this was believed to be partly owing to the standardised nature of the sentences. In the Family Court this was because the litigant believed they knew their case better than a lawyer.
• A previous bad experience or distrust of lawyers (family jurisdiction).
• A desire to get the case over and done with as quickly as possible (criminal jurisdiction).

What effects does self- representation have?

Across both jurisdictions, key informants said that self-represented litigants face the same main difficulty – they often do not understand court process and procedures. This sentiment was repeated by the self-represented Family Court litigants. This leads them to make mistakes such as presenting irrelevant and excessive material, not being aware of their options when making pleas (criminal summary jurisdiction), and in the family jurisdiction making errors when filing and writing documents (supporting international findings). Key informants in both jurisdictions took pains to say that judges did their best to be fair in these situations by adapting their approach. Key informants in both jurisdictions recognised that the outcomes were fair. These key informants also suggested that the outcomes may have been more in the litigants’ favour if they had representation. That mirrors the international research findings. This lack of understanding can result in litigants feeling more stressed and frustrated.

Their lack of understanding of the law and court processes is believed to increase hearing times (and also case progression in the Family Court) because court staff, lawyers, judges and prosecution have to guide the litigants through the process and spend more time explaining procedure. Interestingly, most key informants in the criminal court felt that difficulties dealing with self-represented litigants did not have a huge personal impact on them. However, the effect on key informants in the Family Court appears more pronounced. There may be two reasons for that:

1 There were fewer self-represented litigants found in the criminal summary jurisdiction overall than in the Family Court.

2 Since Family Court cases can be more complex and personal, key informants suggested that self-represented litigants are more likely to stay in the court system longer and make repeated requests on key informants’ time. In contrast, the criminal court is better known by key informants for the volume and speed of cases it handles in a day. Thus key informants in the criminal courts may be less likely to deal with repeated requests from the same litigant and have fewer litigants to deal with overall compared with key informants in the Family Court.

Key informants also noted the effects of self-represented family litigants were more widespread, because of the more complex and personal nature of their cases, than those of the criminal self-represented litigant. Self-represented family litigants were found to increase the other party’s costs and stress. Children could be upset and unsettled.

To what extent are information and resources accessed by self-represented litigants?

Owing to difficulties contacting self-represented criminal litigants we were unable to assess what information and resources these individuals had sought. Family litigants had frequently sought advice from court staff, Community Law Centres, the Internet, and family and friends for information on court procedure, process, applications, affidavits, case law and general case advice. These resources were also accessed (although less frequently) by most represented litigants for the same reasons.

Several court-specific initiatives were mentioned to aid self-represented litigants and to help the courts run more smoothly. Common practices included setting specific hearing times and showing litigants where to go for hearings. Other practices included letting litigants express their views; providing extra instructions in correspondence; and lawyers offering pro bono work. In the Family Court more specific actions included giving ‘how-to’ handouts and delegating one staff member to deal with problematic litigants.

More information on court processes and procedures was suggested by key informants and by litigants as being of benefit (with additional information on duty solicitors, charges and penalties for the criminal jurisdiction). It was also suggested that the common difficulties self-represented litigants face could be outlined. Many represented litigants said they had sought similar types of information. This information was identified as benefiting court staff because it would reduce the time they spent dealing with self-represented litigants. According to the Law Commission, the United States and Canada have adopted the idea of an information pack and put it into practice (Law Commission, 2003).

Most key informants in the criminal summary jurisdiction suggested they needed nothing more to help them deal with self-represented litigants. Most Family Court key informants wanted more training in how to deal with self-represented litigants.

Limitations of this research

The purpose of this study was exploratory. It aimed to answer the four key research objectives to build a picture of the self-represented litigants in New Zealand criminal and Family Courts. As noted earlier it was not intended to recommend law reform or recommend what should or should not be done for self-represented litigants.

Some points warrant more discussion.

1 The study findings generally reflect those found internationally.

2 In the absence of comprehensive recorded data, the numbers of self-represented litigants reported from the brief data collection exercise in this study provide only brief snapshots in time. To determine more accurate numbers and long term trends in self representation, rigorous data recording practices would need to be established. Insufficient data make research difficult.

3 The regional variation in the number of self-represented litigants suggests that a nationwide approach may not be appropriate. More accurate data recording is needed before we can draw firm conclusions about the reasons for the variation.

4 It appears from this study that self-represented litigants are more of an issue in the Family Court than in the criminal summary jurisdiction.

5 This study is only a first step in assessing self-represented litigants in New Zealand. Other jurisdictions (such as the civil and High Court) also have self-represented litigants. More research may be necessary to assess the effects of self-represented litigants in these jurisdictions.

Contents

Acknowledgements

Tables

Figures

Executive summary

1 Introduction

2 Methodology

2.1 Selection of courts

2.2 Pilot study

2.3 Main study

3 Who are the self-represented litigants in the family jurisdiction?

3.1 Numbers and case types

3.2 Demographics

3.3 Socioeconomic status

3.4 Past experience in the court setting

3.5 Summary

4 Why do litigants appear self-represented in the family jurisdiction?

4.1 Reasons for appearing without representation

4.2 Reasons for choosing to have a lawyer

4.3 Future representation

4.4 Summary

5 Impacts on the court appearance in the family jurisdiction

5.1 Attempts to resolve the issue before court hearing

5.2 Impacts of appearing self-represented at recent hearing

5.3 Summary

6 Impacts on the case in the family jurisdiction

6.1 Impact on case outcomes

6.2 Satisfaction with case progression

6.3 Summary

7 Impacts on self-represented litigants in the family jurisdiction

7.1 Advantages

7.2 Disadvantages, difficulties and mistakes made

7.3 Impacts on specific groups of self-represented litigants

7.4 Summary

8 Impacts on others in cases with self-represented litigants in the family jurisdiction

8.1 Impacts on the represented party

8.2 Impacts on the children

8.3 Impacts on the lawyer

8.4 Impacts on court staff and judges

8.5 Summary

9 Resources and information for litigants in the family jurisdiction

9.1 Information and resources accessed by litigants

9.2 Current initiatives and resources assisting self-represented litigants

9.3 Unmet needs of litigants

9.4 Meeting the needs of self-represented litigants through provision of court services

9.5 Summary

10 Who are the self-represented litigants in the criminal summary jurisdiction?

10.1 Numbers and case types

10.2 Demographics

10.3 Summary

11 Why do litigants appear self-represented in the criminal summary jurisdiction

11.1 Reasons for appearing without representation

11.2 Legal aid findings from the criminal jurisdiction

11.3 Summary

12 Impacts of self-represented litigants in the criminal summary jurisdiction

12.1 Impacts on others

12.2 Impact on self-represented litigants

12.3 Summary

13 Resources and advice for self-represented litigants in the criminal summary jurisdiction

13.1 Current initiatives for responding to self-represented litigants

13.2 Unmet needs of self-represented litigants

13.3 Meeting the needs of self-represented litigants through court service

13.4 Summary

14 Discussion

14.1 What are the key characteristics of self-represented litigants?

14.2 Why are these litigants self-represented?

14.3 What effect does self-representation have?

14.4 To what extent are information and resources accessed by self-represented litigants?

14.5 What does this all mean?

References

Appendix 1: Research questions

Appendix 2: Details of interview and data collection sample

Appendix 3: Breakdown of case type by gender

Appendix 4: Additional socioeconomic details of interview sample

Published August 2009

www.justice.govt.nz

ISBN 978-0-478-29047-0

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