Tuesday, August 14, 2007

DIY representation in Court - QC offers advice to those who try it

God help anyone who tries to represent themselves these days in the menagerie of the Scottish Courts system ... but there is help at hand - from the legal profession, if you choose to accept it, and pay for it of course.

It's always good to have someone experienced in law represent you in a court, but that depends on the nature of the action of course ... don't hire a lawyer to sue a lawyer - that as most people seem to accept these days, simply doesn't work .. but lawyers are good for just about everything else, unless it impinges on professional policy of course.

The following advice from the Scotsman should be heeded by many who choose to represent themselves ... it's not as easy as it seems ...

Advice in case you represent yourself


IT SEEMS to me that the number of people doing their own cases is on the increase.

This is particularly noticeable in small claims and summary causes, but it also happens in some criminal cases and in bigger civil cases where individuals fall into the yawning chasm between being poor enough to qualify for legal aid and being rich enough to pay legal fees without impoverishing themselves. I am not criticising fees, merely pointing out such financial considerations could deny representation to a lot of people.

Can I offer some pointers to any would-be do-it-yourself lawyers?

• Think of getting a real lawyer. You are better off with one.

• Get such guides as you can to explain the procedure. The sheriff clerks' office will help, as will Citizens Advice Bureaux.

• In housing cases there are, in Edinburgh Sheriff Court, first-class lay advisors who have saved many tenancies. If that's your problem then use them.

• Be willing to compromise or go to mediation. Most cases settle without a full hearing. Remember, if you go ahead and lose, you can be found liable to pay the other side's lawyers. There is an excellent mediation service in Edinburgh Sheriff Court. They bring many cases to a satisfactory settlement.

• Remember your case will call in court on a number of days. There are likely to be some procedural hearings when the sheriff will not want to take up time fully going into your case. Prepare a brief summary of what it is about.

• Yours will be one of a large number of cases calling on the same day. Be prepared to stay for a few hours.

• Be prepared and organised. Have any documents - not copies - you want to refer to readily available but do have copies available for the court, yourself and your opponent.

• If you put your case in writing make sure you're totally accurate, with no exaggeration.

• In court, speak clearly and loudly. Be polite to everyone, including your opponent. It is quite possible to be forceful and polite at the same time. Don't try to use legal jargon.

• Call the sheriff "My Lord" or "My Lady". Listen to and take on board what the sheriff says. Once a decision has been made, do not argue with it. Take a careful note of future court dates and anything the sheriff says in taking a decision. If you do not understand something or a future date is unsuitable for you, speak up then and there.

• If your case does not settle, you will need to prepare for the proof. Get advice from Citizens Advice Bureaux or the sheriff clerks' office about getting your witnesses to court and lodging documents (not copies) in advance, with intimation to your opponent.

• When questioning witnesses, confine each question to one point and, with your own witnesses, avoid leading questions. Leading questions suggest the answer: "I checked carefully before pulling out, didn't I?" When questioning your opponent's witnesses, bring out points that help you, and suggest they are wrong where you disagree with them. You should put your version of events to witnesses who can comment on it, but do that in a series of short questions, not in a speech ending "Isn't that so?" Keep a list of your main points in front of you.

• After the evidence is finished you and your opponent will have a chance to make a speech. Simply remind the sheriff of the main points that favour you.

• If you are the accused in a criminal case, do not plead guilty "to save time". The court should not accept such a plea. Beware of the consequences of pleading guilty. Some driving charges carry automatic disqualification. If the sheriff suggests you should have a lawyer, you may be in line for a severe penalty and you should heed the advice. If you drive to court, you may have to arrange for your car to be collected!

Most importantly, don't let your case take hold of your life - there is more to life than litigation.

• Ian C Simpson, QC, is a retired sheriff and has sat as a judge.

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