Managing litigants in person[1]

The Honourable Justice E Kyrou[2]

The following article suggests practical strategies for a judicial officer to employ when faced with managing a civil trial at which a self-represented party appears. The article considers three categories of self-represented parties: non-querulant litigants, querulant litigants without a mental illness and litigants with a mental illness.

In my experience, each litigant in person is a unique individual and it would be a mistake to assume that identical strategies can be used to manage them.

Some litigants in person are intelligent and courteous and appear for themselves involuntarily because they cannot afford a lawyer. Some can afford a lawyer but are convinced that only they understand their case and can present it successfully. Yet others have mental health problems which cause irrational behaviour.

A mentally ill litigant in person is not necessarily insolent and aggressive. Some are well-meaning individuals who have been let down by the mental health system and who turn to the legal system in desperation.

I will refer to litigants in person who are persistent, insolent and aggressive as querulants. They pose serious management problems in court.[3]

I will consider three categories of litigant in person: nonquerulants, querulants without a mental illness and mentally ill litigants in person. My observations are based on my experience in presiding over civil cases with litigants in person over the past five years.

Non-querulant litigants in person

The challenges of managing non-querulant litigants in person mainly concern eliciting relevant information about their cases. These litigants understand the general nature of the legal issues in their case but tend to get confused about what is relevant. Often, the result is that they file lengthy and repetitive affidavits and submissions that deal with a multiplicity of events and issues and go off on tangents. These litigants hope that among the material there is something that will assist their case. For a judge, it is inefficient and extremely frustrating to read so much irrelevant material.

Some well-meaning non-querulant litigants in person spend countless hours on the internet and in law libraries researching principles of law that might assist their case. Unfortunately, they often latch on to legal maxims, phrases and cases that appear to be helpful when taken out of context.

The judge’s frustration increases when non-querulant litigants in person give oral evidence. The absence of counsel means that the litigants in person give evidence by way of narrative. They often focus on particular incidents and do not use their pleading as a checklist to ensure that they have established all the elements of their cause of action or defence.

Cross-examination by non-querulant litigants in person can be a nightmare because they tend to ask the wrong questions and neglect to ask important questions. Some questions are offensive or are asked for collateral purposes.

The objections that litigants in person take to questions put to them or to their witnesses can be amusing. Sometimes the reason given for an objection is simply that the question is unfair because the answer will be damaging.

In my experience, the best way for a judge to manage non-querulant litigants in person is to explain to them at the beginning of the trial the court processes in brief and simple terms, and to use this explanation as a reference point for the duration of the trial. The aim is to provide a simple but clear framework within which the litigant in person can conduct his or her case.

Thus, at the beginning of the trial, it is useful to summarise the issues from the pleadings, the roles of the parties and the judge and the nature and purpose of each stage of the trial. As each stage is reached, it is often helpful to remind the litigant in person of what that stage involves. This is a useful strategy because every time the litigant in person digresses or makes a mistake, the judge can guide him or her by reference to what the judge has already said. With constant repetition, a well-meaning litigant in person will gradually learn what is required and what is not permitted, thus reducing the need for judicial intervention.

Imposing generous but firm time limits for the completion of various steps, such as the examination of a particular witness or the making of submissions, can be a useful trial management tool for a judge. The litigant in person should be reminded of the deadline if he or she becomes repetitive or strays off topic.

A civil trial can be streamlined even further if counsel for the represented party co-operates. Important areas of cooperation are the use of simple language that avoids legal jargon and Latin words and phrases, confining the evidence to relevant matters, and objecting to the evidence of the litigant in person only when absolutely necessary.

A significant challenge for a trial judge is that some litigants in person believe that the judge has a duty to advise them not only on procedural and evidentiary rules, but also on how to conduct their cases. Notwithstanding that a judge may take considerable care to bring various issues to the attention of the litigant in person and to inform him or her of the available rights and options, some accuse the judge of failing to advise them properly. They erroneously believe that it is the judge’s role to anticipate developments in the trial and to recommend proactively that the litigant adopt particular courses of action.

Although self-represented plaintiffs undoubtedly face significant difficulties in presenting their cases, in practice, represented defendants experience considerable disadvantages when they are sued by a self-represented plaintiff. The trial judge’s duty is to conduct the trial in a manner that is fair to all parties.

Achieving the right balance is not always easy, particularly when decisions have to be made immediately in the midst of a challenging trial. If the judge provides too much assistance to the litigant in person, there may be a miscarriage of justice because the judge may have compromised his or her impartiality. On the other hand, a totally hands-off approach which ignores the fact that one of the parties is self-represented could also lead to a miscarriage of justice if the litigant in person is deprived of a fair opportunity to present the substance of his or her case through ignorance of the judicial process.

The risk of a miscarriage of justice can be reduced if the judge gives counsel for the represented party prior notice of what the judge proposes to do to assist the litigant in person and seeks feedback before providing that assistance. In my experience, counsel adopt a sensible approach and tend not to object to fair and measured assistance being given by the judge, because they appreciate that such assistance reduces the length and the cost of the trial. For example, brief checklists which are prepared by the judge and vetted by counsel are often a useful device to assist a litigant in person and to streamline the conduct of the trial.

In summary, if the judge remains courteous, patient, calm and even-handed and continues to explain what he or she proposes to do and why, there are good prospects that both parties will recognise and respect the judge’s efforts and that the trial will not be too unwieldy.

Querulant litigants in person without a mental illness

I will now consider querulant litigants in person who are not mentally ill.

The observations I have made about the problems of managing non-querulant litigants in person also apply to querulants. An additional complication is that some querulants are obsessed by the legal process and are not really looking for closure of their legal problem. Every setback reinforces their view that the system is against them and makes them more determined to press on. They are often very cunning and are not beyond playing games and trying to force the judge to make rulings that they can later appeal. This means that the judge must be vigilant to avoid being set up.

The favourite words and phrases of querulants include:

“You are biased.” This is usually trotted out when the querulant realises that the trial is not going well and that he or she is likely to lose. The accusation of bias is usually accompanied by an application for the judge to disqualify himself or herself.

“I have a right to natural justice.” This is usually code for “I have a right to get my way”.

“What about my human rights?” This is usually not an appeal to a specific human right in a statutory charter, but is more in the nature of a catch-all phrase. The message to the judge is that “surely there is a principle of law that can help me” and that “you had better find it for me”.

Querulants have a tendency to argue and to not follow judicial directions. Deliberately or otherwise, they can antagonise the judge and can cause a loss of judicial composure. This, in turn, may lead to rash rulings by the judge which can result in a successful appeal.

In theory, the strategies that I have outlined for managing non-querulant litigants in person should also be deployed for querulants. In my experience, however, these strategies are often insufficient. At best, they are a starting point. The precise mix of appropriate strategies must be assessed on a case by case basis in the course of the trial.

The behaviour of some querulant litigants constitutes contempt in the face of the court. In such a situation, it is tempting for a judge to charge the litigant with contempt and to either deal with the charge immediately or at some future time. What is the correct course depends on the circumstances. However, the judge should take great care not to act impetuously.

If a contempt of court is committed in the course of a long trial whose outcome will be affected by the judge’s assessment of the credibility of witnesses, a finding of contempt against one of the parties before all the evidence is heard may give rise to an apprehension of bias, which may require the judge to recuse himself or herself and for the trial to be aborted. A retrial will cause additional delay and cost, resulting in prejudice to the other party and the tying up of valuable judicial resources.

Even if the trial is not aborted, a charge of contempt will be a time-consuming distraction. It may be better for the judge to state to the litigant in person that his or her conduct may constitute a contempt of court and that, after final orders are made in the case, consideration will be given to whether he or she should be charged with contempt.

Mentally ill litigants in person

The final category of litigants in person is mentally ill litigants in person who are plaintiffs. I will confine my remarks to litigants whose illness is not such that a litigation guardian is necessary.

Some mentally ill plaintiffs sometimes make allegations which appear to be far-fetched. Their favourite words include “conspiracy” and “corruption”.

In the absence of a successful strike-out application, once the trial of the proceeding commences, the plaintiff is entitled to pursue the allegations in accordance with the rules of natural justice. He or she can give evidence in support of the allegations and call witnesses. In the absence of a no case submission at the end of the plaintiff’s case, the plaintiff is entitled to cross-examine the defendant’s witnesses in relation to the allegations.

A self-represented plaintiff’s vigorous pursuit of allegations which seem to have little merit poses serious challenges for a trial judge. The hearing rule of natural justice requires that the plaintiff be given a fair opportunity to make good his or her claim. Often, however, such plaintiffs will not understand the difference between an assertion and evidence that is adduced to prove that assertion. In addition, they may be convinced that any witness that disagrees with their assertion is lying and that the witness will eventually relent if a question is repeated numerous times.

Efforts by the trial judge to direct and to guide mentally ill self-represented plaintiffs are often made in vain because such plaintiffs are incapable of understanding what is required or are unwilling to cooperate. Some self-represented plaintiffs become aggressive towards the trial judge if an adverse ruling is made against them or if they perceive that the trial judge may be biased.

In my experience, there is no particular approach that will work in dealing with these problems. Each self-represented plaintiff is unique and must be managed in the light of his or her particular attributes. An accommodating and patient approach may work in some situations, whereas a firm and disciplined approach may be required in others. In some cases, aggressive trial management results in arguments, time wasting and unscheduled adjournments. The imposition of deadlines for the completion of particular steps, such as cross-examination of witnesses, may also be of limited utility because the deadlines are often not met and valuable time is then wasted debating whether the deadline was fair.

In some cases, the behaviour of mentally ill self-represented plaintiffs can vary greatly from day to day, and even in the course of a day. Their behaviour may depend on whether they have taken their medication, the dosage of medication that they have taken, and on events that occur inside and outside the courtroom. The variable behaviour will require constant adjustments to the judicial management of the trial.

Given the constraints that are imposed by the rules of natural justice, sometimes the most efficient approach to managing a trial with a mentally ill self-represented plaintiff is to allow it to proceed with little judicial intervention. Such intervention can be confined to necessary explanations, guidance and rulings and the taking of measures to ensure court security.

Court security is an important issue with mentally ill litigants who become not only aggressive, but also threatening. At the first sign of threatening behaviour, the judge should explain to the litigant that all the parties, the court staff and members of the public have the right to feel safe while they are in court and that threatening conduct will not be tolerated. If there is further threatening conduct, the judge should warn the litigant of the potential consequences, including an adjournment, the temporary exclusion of the litigant from the courtroom or a stay of the proceeding.[4]

Ideally, court security staff should be present in court if there is a risk of harm to anyone in court. This issue, however, is not always straightforward because some mentally ill litigants become agitated in the presence of armed security guards. Sometimes, the solution is for security personnel to be stationed outside the courtroom. In the final analysis, as the judge has a duty to ensure the safety of everyone present in the courtroom, he or she must take whatever steps are necessary to discharge that duty.

It is always prudent for a trial with a mentally ill self-represented plaintiff to take place in a courtroom that has CCTV security cameras and that is readily accessible to security personnel.

Inappropriate communications

Some litigants in person make inappropriate telephone calls to a judge’s associate, leave inappropriate telephone messages on the associate’s telephone, and send inappropriate emails, all of which cause considerable discomfort. Often, written communications are not copied to the other party.

The court’s communication protocols need to be clearly explained to litigants in person, so as to protect court staff from inappropriate communications and to ensure that the other party is aware of all such communications. If the protocols are not followed, the judge should ensure that every fax and email from the litigant in person is forwarded to the other party; that all telephone discussions are disclosed in open court at the next sitting day; that all telephone messages are transcribed; and that copies of the transcribed messages are forwarded to the other party.

In some cases, it may be necessary for the judge to direct a litigant in person to refrain from telephoning court staff and to communicate with them only in writing.

[1] Paper presented at the “Managing People in Court” Conference, National Judicial College/ANU College of Law, 9–10 February 2013, Canberra. Published in (2013) 25(2) JOB 11, updated 2021.

[2] Judge of the Court of Appeal, Supreme Court of Victoria.

[3] See G Lester, “The vexatious litigant” (2005) 17 JOB 17. See also Section 10, “Self-represented parties”, in Judicial Commission of NSW, Equality before the Law Bench Book, Sydney, 2006.

[4] Slaveski v Victoria (2009) 25 VR 160 at [68]–[72].