Some free advice for anyone looking to handle their own legal dispute

Introduction

Whether you are a small business chasing a debt, or the recipient of an inflated invoice you don’t think you should have to pay, it may be tempting, for a number of reasons, to represent yourself in litigation.

Courts don’t discourage litigants from being self-represented, but their websites usefully suggest that seeking legal advice is always helpful to understand the process and could potentially save you time and money. This is sound advice.

Decisions by courts and tribunals in matters involving self-represented litigants reveal that, while many have a firm grasp of the facts of their case and navigate the process smoothly, the experience of these unicorns is the exception, rather than the rule.

Courts more frequently remind us that self-represented litigants, even those of intelligence and sophistication, are at a serious disadvantage in conducting their own litigation because they lack two qualities that competent lawyers possess, being legal skill and objectivity (read Tomasevic v Travaglini). These are two of the key characteristics a litigation solicitor brings to your case which can’t be replicated by even the most well-meaning and studious of self-represented litigants.

The significance of legal skill lies in the simple fact that court proceedings are complicated. Even if you have a strong case, there is a certain skill to putting that case to the tribunal in a persuasive way. As a self-represented litigant, the presiding officer will give you a degree of indulgence, appropriate assistance, and a fair opportunity to participate. But you will ultimately still be bound by the same rules of procedure, and your case will be measured by the same legal standards as apply to any other litigant.

Therefore, a serious risk faced by all self-represented litigants is not knowing what they don’t know about the law or the process until it’s too late to do anything meaningful about it.

Objectivity is key

As to objectivity, the maxim nemo iudex in causa sua springs to mind, which wisely cautions that no one should be a judge in their own case. Objectivity is the key attribute your lawyer brings to your case.

We are all people, after all - even lawyers - and we often aren’t able to detach from the emotional and cognitive biases that cloud our objectivity and judgment when we are personally involved in a dispute.

The real difficulty is that once they lose objectivity, which often happens early on, self-represented litigants often fall into what one judge described as the phenomenon of becoming so fixated on real or perceived wrongs that they lose any semblance of objectivity and the power of discrimination. Once a litigant enters this spiral, they generally lose any chance of presenting their case persuasively and to the legal standard required to win.

So, to avoid these pitfalls, and before you embark on any self-represented litigation, ask yourself: Do I have an objectively winnable case and, if so, how and where and when should I present it?

If you don’t have a clear answer to each of these questions, the best thing you can do to protect your interests - before you commence any litigation - is to get legal advice.

How Sharrock Pitman Legal can help

Our Disputes and Litigation team has extensive experience in providing advice and advocacy to businesses and individuals to resolve a wide range of issues such as  commercial disputes, shareholder disagreements, employment, IP and property disputes. Our Litigation team also provides assistance with debt recovery and letters of demand.

Please do not hesitate to contact us if we can assist you. Call 1300 205 506 or email sp@sharrockpitman.com.au.

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The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

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