Self-representation

Contributed by StephenShaw and current to 27 July 2018

The fact that lawyers are very expensive is no secret. Many people who get involved in civil disputes or who are charged with criminal offences cannot afford the amount a law firm will charge to provide advice and representation. Sometimes the value of the matter at the heart of a dispute is so low that paying lawyers to handle the matter will cost more than the amount of money in issue.

Western Australia does have a legal aid system to provide legal advice and representation to people who cannot afford it. However, the demand for legal assistance is so great and the funds allocated by the government to pay for that assistance so inadequate that Legal Aid can often provide no more than brief telephone advice. Unless the matter is so serious that the person seeking help is likely to end up with a lengthy jail sentence if they are unable to find representation, legal aid may be unavailable.

There are also a number of community legal clinics that can provide advice and assistance, but the demand on clinic services is so great as to mean that they can only cope with a fairly small portion of the requests for representation that they receive.

Nonetheless, if you find yourself involved in a legal dispute, Legal Aid and community legal clinics are the sensible first place to seek help if you cannot afford a lawyer. Even if they cannot provide full advice or represent you they may be able to point you in the right direction if you choose to represent yourself.

Self-representation is not a task to undertake lightly. Many people are too personally involved with the dispute that they are embroiled in to stand back and take an objective view of all the facts and circumstances. If you choose to represent yourself in a legal dispute you will have to try and see your matter as you think the judge will see it. You will need to understand that what you feel about what has happened will not be as relevant to the judge as how the law relates to the dispute.

You will need to collect all the facts and the evidence you need to prove those facts. You will need to be able to present those facts to the body that will hear your dispute in a clear and logical manner. The simplest way to do this is to put everything into strict chronological order and to stick to that order when you are presenting your case.

If you will be calling a witness you must have carefully thought out the questions that you will need to ask to prove that your version of events is the one the court should believe.

You will also have to come to a fairly clear understanding of what law and what legal processes are relevant to your dispute. Legal processes involve getting documents filed in the correct form, making sure that witnesses attend, fulfilling demands that the court makes about timing and the speed that the matter progresses, and all the other aspects of running, rather than proving, the dispute. Staff at most courts and tribunals are fully aware of what problems self-represented people face and will do what they can to clarify how to go about getting those aspects of the matter right.

However, court staff will not give legal advice. Legal advice is advice as to the law that will be applied to the facts rather than the process of getting those facts to the court. As a self-represented person, you must try and learn about the law by reading relevant text books, past decisions that the court has made that are relevant to the dispute, and the statutes that govern the matter.

Once the hearing of the matter has commenced you will need to pay careful attention to everything that is said. The best way to make sure that you do not miss anything important is for you to take careful notes. A transcript of court proceedings is generally recorded and made available to parties, but it is very expensive. It is important to stay calm and polite and not to speak out of turn. These are not easy things to do when your money or your freedom may be at stake.

If the other party to the dispute calls a witness you will be able to cross-examine that witness. For that reason you must pay particular attention to the evidence they give so that you will be able to refer back to their evidence when conducting a cross-examination of the witness.

If your argument as to why you are in the right depends on decision in past cases, you will need to say so and to provide copies of those cases to the court. If you do choose to represent yourself in a legal dispute, you will be at a disadvantage if the other party is represented by a solicitor. You should be able to rely on the other party’s solicitor to be honest with you. However, you must always remember that the solicitor’s duty is to his or her own client. That means that even if you are able to communicate with the solicitor on a clear and pleasant basis, you must stay fully aware of what your own true interests are. It is always useful to keep what the dispute is really about in mind, and if it is possible to settle the dispute in a way that keeps your interests reasonably intact, you should seriously consider that settlement.