Abstract
Litigants in person (LiPs) are increasingly prominent players in the social world of the court. There is a growing literature addressing many questions relating to litigants in person and this article contributes to that literature, exploring the creation and maintenance of the social role of the litigant in person. I argue that the high-status actors and those in the inner circle of the social world of the court – the judiciary, lawyers, and court staff – engage in boundary work, defining the role of the litigant in person. In carrying out this work they shape two roles for the litigant in person: the vulnerable and the vexatious. Simultaneously they maintain the fiction that the ideal litigant in person is one who performs the lawyer's role. This role is neither possible nor desired by the high-status actors; litigants in person must remain differentiated. If court reform to address the challenges presented by litigants in person is to succeed, it must account for these role dynamics.
Introduction
A litigant in person (LiP) related his experience of attending court. He had walked into the courtroom, and as he was there to appear before the court, he walked past the bar, up to the bar table, and ‘put my stuff on the table’. The opposing lawyer immediately reprimanded him, telling him that, ‘you have to belong to the bar’ before you can sit at the bar table. The lawyer was incorrect, but the LiP did not know that and did not argue. He retreated to the public gallery. Only moments later, he relayed with amusement, the judge called him back up and told him to sit at the bar table.
This story formed part of an analysis that I wrote at the time, considering physical boundaries in the courtroom and their social meaning, the way in which the insiders – court staff, lawyers, and judges – control the courtroom and signal outsider status to LiPs (Toy-Cronin, 2016). But through further reflection, research, and experience, I began to understand that patrolling physical spaces was only one aspect of a broader issue. Court insiders – particularly the lawyers and judges – create two restrictive, role-based boundaries for LiPs: vulnerable and vexatious. They engage in boundary work to create and maintain these roles and they undertake this work while simultaneously maintaining the fiction that the ideal LiP is lawyer-like. In reality, the lawyer-like role is neither possible nor actually desired by the high-status insiders, but it is a confusing ideal held up by both LiPs and high-status actors.
Understanding the dynamics of LiP roles provides insight into why some forms of interventions, which are intended to address the challenges LiPs experience and present, are bound to fail. In doing so, the analysis contributes to a growing literature addressing key questions about LiPs: Numbers of LiPs, characteristics of LiPs, LiPs’ experience, and the experience of other court actors interacting with LiPs (see for example Macfarlane, 2013, McKeever et al., 2018, Moorhead and Sefton, 2005, Neo and Whalen-Bridge, 2021, Trinder et al., 2014). It provides another lens through which to understand the interaction of LiPs with the civil common law courts and informs possible responses.
I begin by outlining the method and provide an explanation for my choice of the term LiP. I then discuss the idea of boundary work which grounds the analysis, the way in which social groups maintain distinctions between themselves and others. I discuss how this is performed in different social contexts, including in the courts. The two permitted roles for LiPs – vulnerable and vexatious – are then explained, before turning to the question of why the lawyer-like LiP is neither possible for the LiP to achieve, nor desired by the powerful court actors.
Method and Terminology
In constructing this argument, my primary source is work conducted a decade ago (Toy-Cronin, 2015). That work examined litigation in person in the New Zealand civil courts, focussing on cases where only one party was a LiP and the other was represented. While that study included Family Court participants, I exclude them in this analysis because the dynamics in Family Court are quite distinct; the analysis in this article is limited to the general civil jurisdiction courts.
In that study, I used several qualitative methods: participant observation, interviews, and document review. LiPs (n = 34) participated either by way of a single interview or by a more intensive case study. These case studies included multiple interviews, (often) numerous email exchanges, ongoing review of case-related correspondence and documents, and where possible, observation of the LiP in court. At the conclusion of the LiP-focused work, I interviewed court staff (n = 8), lawyers (n = 16) and judges (n = 13), with an average interview length of 40 min.
My method of analysis for that project was derived from grounded theory and followed Strauss and Corbin's encouragement to recognise that analysis of qualitative data is a ‘fluid and dynamic’ process and ‘should be relaxed, flexible, and driven by insight gained through interaction with data rather than being overly structured and based only on procedures’ (Corbin and Strauss, 2008). I was guided by insights from a number of qualitative analysis texts to build a coding structure in NVivo and analyse the data using line-by-line coding and reflective memoranda (Bryman, 2012, Corbin and Strauss, 2008, Emerson et al., 2011, Silverman, 2013).
In the decade since I conducted that research, I have continued to develop work in this field and conduct other studies in the New Zealand civil courts (Toy-Cronin et al., 2017, Toy-Cronin, 2022b). In this article, I have revisited my original analysis and drawn on my other work. I have also referred to the work of others conducted in England, Australia and Canada. These are countries that have a very similar attitude to LiPs, England being the progenitor of the court system that was subsequently imposed in the other countries through colonisation. It is with these sources that I have drawn together the argument in this article.
Throughout the article I use the term ‘LiP’ but I recognise that it is an imperfect option. LiP has emerged as a common term in the academic literature of England and associated jurisdictions, but not in North America and it is an opaque term to those outside law, including LiPs themselves. There are several other options. ‘Self-represented litigant’ is a term commonly used in North America (along with pro se) and is fairly common in New Zealand and other jurisdictions. ‘Unrepresented litigant’ is less common but still widely used. A less common term but one favoured among the New Zealand judiciary is ‘lay litigant’.
I have settled on the term LiP because it offers several advantages. First, it places the litigant at the centre of the discussion on policy reform, reflecting the idea of people-centred justice, which is gaining popularity (Organisation for Economic Cooperation and Development, 2021). Litigants are either appearing in person, or by an agent (a lawyer), whereas the opposite of self-represented or unrepresented is represented, emphasising the place of lawyers. Second, the risk of using ‘self-represented litigant’ is that it implies a person can be one's own lawyer or act in a way that is equivalent to a lawyer. As developed in my argument below, I maintain that this is a fallacy, so I want to avoid using a term that implies effective self-representation is achievable. ‘Lay litigant’ suggests that those who are represented are ‘professional litigants’, which seems nonsensical. I therefore use LiP as my preferred, although imperfect term.
Boundary Work
Groups of people interacting in a social setting mobilise symbolic resources, such as creating conceptual distinctions, to create, maintain and contest institutionalised social differences (Lamont and Molnar, 2002). Separating actors into different social groups creates in-groups and out-groups. The social world of the court is no exception. Paul Rock's analysis of an English Crown Court demonstrates the divisions in court life (Rock, 1993). Rock describes the court's workings in terms of concentric rings: ‘Together they plotted a gradient of zones of trust whose outer reaches were open to all but whose inner recesses were restricted indeed’ (Rock, 1993:181). In the inner circle are the judges, ‘emphatically segregated from the rest’. In the second circle is ‘the team’, made up of the court staff and members of various agencies such as probation who are in court all the time (Rock, 1993: 184). Next are the ‘outside professionals’, ‘composed of the police officers, solicitors, and counsel who came in and out of the court to despatch their cases but were not sentimentally or practically members of its organization’ (Rock, 1993: 191–192). The fourth circle is the public, ‘an uneasy agglomerate of spectators … jurors …, defendants …, defence and prosecution witnesses, supporters, families, and friends’ (Rock, 1993: 194). Rock observes that: The boundary between the public and professionals was the greatest of all, the Court's social world being divided firmly between those who were professional and those who were not, between familiars and strangers, the trustworthy, the knowing and the unknowing. It was in this sense that the distinction between outsiders and insiders was the most fundamental feature of the social organization of the courthouse. It marked a chasm which could not be crossed (Rock, 1993: 196).
To maintain this boundary that keeps LiPs on the public side of the chasm, lawyers and other insiders (court staff and judges) engage in boundary work, that is, ‘typification systems, or inferences concerning similarities and differences, [that] groups mobilize to define who they are’ (Lamont and Molnar, 2002: 171). For example, Vallas describes how engineers in paper production engage in boundary work, constructing manual workers as lazy or irresponsible, constructions that then become inscribed in the institution and privilege the formally credentialled engineers over the informally trained manual workers (Vallas, 2001: 5). The symbolic system of classification then ‘find[s] material expression in organizational practices that can so powerfully ‘naturalize’ systems of classification as to leave them beyond scholarly inquiry’ (Vallas, 2001: 12). This is the work that the insiders to the court system are engaged in when presented with the challenge of LiPs attempting to cross Rock's chasm.
How LiPs came to be constructed on this public side of the chasm is convincingly explained in Kate Leader's article, examining the creation of the LiP in the nineteenth century (Leader, 2020). She paints a compelling portrait of how LiPs were created when lawyers took over the county court in England and analyses them as ‘emblematic of Magali Sarfatti Larson's “professional project” in action’ (Leader, 2020: 262). The project being the attempt by a group of professionals (lawyers in this case) ‘to translate one order of scarce resources – special knowledge and skills – into another – social and economic rewards’ (Sarfatti Larson, 1977: xvii). Leader is interested in examining how the dominant negative portrait of LiPs has arisen as ‘vexatious, time wasting, disturbed, incompetent or a combination of all of the above’ (Leader, 2020: 260). Leader concludes that ‘the LiP is a role of failure, created as a by-product of the professional project in action’ (Leader, 2020: 287).
While Leader examined the process of constructing the category of LiP, I am examining how this has been maintained in the face of a new challenge: The rising number of LiPs driven by constricted legal aid budgets, new classes of legal action, and the democratisation of legal knowledge. The insiders, and particularly lawyers, are motivated to engage in such work because the court functions as what Abbott called the professional ‘heartland’ of the legal profession (Abbott, 1988: 71). It is the part of the profession's work over which it has legally established control (protected rights of audience) and it shapes the public's view of what the legal profession does. Maintaining the profession's status therefore depends, at least in part, on defending this important territory. As Vallas says, ‘… to justify their claims of a qualitative distinction between professional and lay knowledge, professional groups … must continually affirm and reaffirm the legitimacy of their knowledge through certain informal processes that emphasize the distinctions’ between the professional group and the challengers (Vallas, 2001: 11–12).
Importantly, not all litigants without lawyers are regarded as challengers and are therefore not subject to the label ‘LiP’. A disputant without a lawyer is not a LiP in a lawyerless forum. LiPs, as Leader has observed via historical analysis, only exist where there are lawyers (Leader, 2020). Before lawyers colonise a forum, litigants are just litigants. This is also true of forums that exclude lawyers by statute. New Zealand has two small claims jurisdictions where lawyers are prohibited in all but very limited circumstances: the Disputes Tribunal and the Tenancy Tribunal. In these fora, the term LiP is not used. Disputants are applicants and respondents, and landlords and tenants, respectively. In interviews with people involved in these fora, the participants are referred to by a specific designation such as ‘tenant’, or as ‘lay people’, but never as LiPs or an equivalent term (Toy-Cronin, 2022b). It is only where there are lawyers, that litigants without lawyers become LiPs. This suggests that categorising LiPs as LiPs is a form of boundary work. The professionals are defining their area of practice and maintaining that boundary by putting LiPs into a separate class in areas where they are working, but do not engage in this activity where the same actors do not come into contact with their work.
This is also evident in lawyer-dominated forums, although harder to discern. An example can be found in a discussion in the New Zealand Rules Committee, the statutory body responsible for writing the procedural rules of all the New Zealand courts (but not tribunals), which consists of judges, lawyers and government officials. 1 During discussions to develop District Court Rules to better meet the needs of LiPs, the Rules Committee drew a distinction between two groups of LiPs: Natural persons who they called ‘true LiPs’ and unrepresented corporate entities who were excluded from the category of ‘true LiP’ (Toy-Cronin, 2022a). The exact basis for the distinction was not spelled out. Perhaps the thinking was that corporate LiPs (often government departments) had in-house counsel or other advisers behind the scenes. They tend to file repetitive claims based off a precedent, for example, the Inland Revenue Department making claims against multiple defendants, where the only discernible difference in the claims is the defendant and the amount. These were not ‘true LiPs’ in the sense of being a challenge to the profession's territory.
The difficulty faced by those in the inner circles of the court is that their boundary work is constrained by the need to protect the legitimacy of the court system. The rule of law, at least in part, depends upon the court maintaining a posture that it is open to LiPs. This is both because there is a long-standing right to litigate in person but also because in an environment where affordable representation is limited, litigants must have the opportunity to come before it unrepresented. Court staff, focused on customer service and often believing that their role was to help litigants, wanted to be of assistance. As one court staff member said, she gave herself a talking to when she became impatient with LiPs, reminding herself that as a party to litigation they had a right to that time. Similarly, lawyers felt obliged to assist LiPs, often because that would expedite proceedings and therefore assist their own client, but also to assist the administration of justice, to try to make the promise of openness a reality. The court insiders are therefore performing boundary work in a highly restrictive environment. They have to walk the difficult line of both maintaining that LiPs belong in the public side of the chasm, making no threat to lawyers’ insider-status, while simultaneously ensuring that LiPs can be seen to be able to perform the tasks that a lawyer can. Otherwise, the legitimacy of the market for legal services (where lawyers often have a monopoly or at least protected status) and the courts’ monopoly over dispute resolution is called into question.
This leads to odd and confusing communications from the courts themselves. The court is both attempting boundary work and is constrained in how it can perform that work. An example is the guides to ‘self-representation’, which tend to both provide information on what to do and exhort people to seek legal assistance. For example, the 170-page guide begins with a foreword from the Master of the Rolls discussing the importance of access to justice, and spends the first chapter on the question ‘Do you have to be a litigant in person?’ (Bailey et al., 2013). This tension, I will argue, has led to the insiders engaging in particular forms of boundary work which casts LiPs in to one of two roles (vexatious or vulnerable), but simultaneously communicates to LiPs that their role is to be lawyer-like. That lawyer-like role is unattainable. It is in this confusing environment that civil court LiPs dwell.
The Permitted Roles for LiPs
I argue here that insiders allow the LiP two roles: The older role of the vexatious LiP (a role that pre-exists the growth of LiPs as a group), and the newer role of the vulnerable LiP. The middle ground – the lawyer-like LiP – is not in reality available to LiPs. Instead, they are pushed towards one of the accepted categories. Some insiders expressed this idea in clear terms. For example, a judge said: There are three [categories]. Those who can’t afford a lawyer or get legal aid and that number is growing exponentially. The second is those who think they can do a better job than a lawyer, and the third are querulents. Why is there this increase in unrepresented litigants? … We know from international studies that by far the consistent reason for proceeding without representation is lack of money. … We also know that some litigants come before the court unrepresented because they choose to. Some of these have had bad experiences with legal representation. Some are vexatious or querulant litigants, pursuing repeated and relentless litigation, ultimately without merit. We need to avoid the development of querulant behaviour because of inadequate access to legal advice. Querulant behaviour benefits no-one. (Winkelmann, 2014: 235–236). The level of lay litigants ranges from people who are genuinely wanting some help, don't know what to do with this document, to people who all their lives is coming up with commencing proceedings just for the sake of it. (Court staff)
The categories are achieved by the boundary work of the insiders. This involves, most obviously, the use of cultural distinctions, the learning of the insiders both formal and through craft-skill to differentiate themselves from LiPs. But it also uses moral discourse to draw symbolic boundaries between insiders and LiPs (Abbott, 1981, Espiritu, 2001). When insiders construct the vulnerable LiP, it is as confused and emotional (drawing on the emotion/reason divide as a culturally shared axis of division), and when insiders construct the vexatious LiP, it is as erratic and dangerous.
The Vexatious LiP
The vexatious LiP is the villain of the courtroom. Vexatious litigants are truly persistent litigants who leave no stone unturned, will not cease litigation, and who use the court process in a way that is abusive towards the defendants, and also abusive to the professional players in the system. They are frightening to deal with. The ‘logic’ of their cases turns in on itself and often explains away failure with accusations that the system is biased. And yet they keep using the system to pursue their cases. They are a tiny minority of litigants, but their shadow looms large, particularly in the appellate courts where they take up a disproportionate amount of resource as they attempt to overturn any decision.
LiPs at this end of the spectrum are perceived as dangerous. Lawyers interacting with LiPs out of court perceived there was a risk that the LiP might misinterpret what was said, or might ‘start becoming abusive frankly’ and making ‘all sorts of remarks about what they perceived you to be doing to them’ either ‘to your face’ or in court (Civil litigation lawyer). Another lawyer explained that he was litigating against a LiP who had a track record of complaining about the opposing counsel. He explained the precautions he was taking and said, ‘There is a degree of almost hysteria – internal hysteria – if you see what I mean. I’m just trying to be very careful’. Judges also framed them as dangerous. Unusually persistent litigants refuse to accept the finality of decisions, and often turn on those involved in the decision, attacking the integrity and legitimacy of the system itself. In addition to the danger of them attacking the legitimacy of the system, there are other troubling possibilities. As judges noted, persistent LiPs are sometimes right. Failing to see a genuine point gives genuine grounds for appeal. For the judge who misses the point, there lies the ignominy of being overturned on appeal in a case involving one of these infamous litigants. This is time-consuming and frustrating work. The danger lies not just in creating an appealable judgment but also in the threat of physical attacks or harassment of the judge. The incidents that predated the interviews by 10 years, in which a fathers’ rights group picketed judges’ homes, 2 were referred to by a number of lawyers and judges. One judge wondered, if the threat of such incidents grew, ‘who would want to be a judge?’. More often, there is a threat that the persistent LiP will call the judge's professionalism into question, making allegations of fraud, bias and corruption, via proceedings, media, and formal complaints. There may be nothing of substance to the allegations, but time and energy is expended on defending them.
The vexatious LiP draws mainly on a psychological view of the LiP, namely that there is a personality flaw or a pathology at the root of the behaviour (Freckelton, 1988 cf Herman, 2012). It may also draw on the idea of the LiP as a political artefact, namely that the LiP is using the court (inappropriately) to further a political agenda or to avoid legal responsibility by promoting a legally untenable and essentially political point. Litigants promoting pseudolaw arguments such as claims that they are sovereign citizens or ‘freeman of the land’ – that the litigant is a sovereign person beyond the jurisdiction of the court – is one example of this positioning (Young et al., 2023; Meads v Meads [2012] ABQB 571).
There are very few litigants who meet the criteria of the truly vexatious litigant, so why would there be a tendency for the established actors in Rock's inner circle to cast LiPs in this role? I suggest two reasons. First, vexatious LiPs reinforce the need for lawyers. Lawyers act as a screen, stopping such behaviour leeching into the court system. Lawyers are bound by formal codes of behaviour as well as informal codes and therefore stop or suppress the disorder. This theory of course ignores the reality that wealthy people can use litigation strategically to run opponents out of money and stress them into settlements, shielded by lawyers from accusations that they are doing anything untoward. Or the fact that lawyers themselves may also be vexatious: The first litigants declared vexatious in both New Zealand and England were lawyers (Taggart, 2004, Taggart, 2007). But in general, lawyers are seen as preventing vexatiousness by refusing to take hopeless cases and counselling their clients into walking away.
Second, vexatious LiPs function as ‘atrocity stories’, dramatic renditions that bind a group together through the exchange of common problems (Dingwall, 1977). These stories tend to occur in social situations among lawyers and/or the judiciary. They might be exchanged in the tearoom or the corridors of the courts, where they also might serve the function of releasing tension after an encounter that was perceived as potentially dangerous or volatile. These stories both bind the professional group together and serve to reinforce stereotypical views about LiPs and therefore justify their outsider status. Saying anything that is sympathetic towards vexatious litigants is heresy, betrayal of the fraternity. They need to be either pitied or scorned. The in-between is dangerous territory if you want to be invited to the chambers cocktail functions.
The Vulnerable LiP
Standing in contrast to the vexatious LiP is the vulnerable LiP. There are several important characteristics that are part of this role. Most importantly, the vulnerable LiPs needs to have been forced into the position in which they find themselves and cannot be blamed for their predicament. To be forced to be a LiP means that they do not have adequate funds to have paid for a lawyer to argue their case i.e., they are a product of legal aid policy and market failure. The LiP who is not vulnerable in this sense underpins Assy's book Injustice in Person: The Right to Self-Representation, where he makes a thorough and careful argument against an unfettered right to litigate in person (2015). In the very first paragraph, he invokes the LiP who can pay for a lawyer to support the argument he is about to build: ‘Even if a litigant is incapable of conducting litigation effectively and can afford a lawyer, she is entitled to litigate in person’ (Assy, 2015: 1, emphasis added).
The vulnerable LiP should ideally also be a defendant so that they have had no choice but to have responded to the litigation. Being a plaintiff-LiP might be acceptable in some situations but will make them suspect as having failed to have found other options to settle the matter. The vulnerable LiP is forced by the structure of the system to respond to a legal case and defend themselves. The LiP who does not have this characteristic blamelessness will be immediately suspect and liable to be moved into the vexatious LiP category.
The vulnerable LiP's performance is a more difficult question. Leader suggests that the LiP ‘is a role of failure’ (Leader, 2020: 13). This is true to an extent; if LiPs were very successful in arguing cases, lawyers’ claim for special status looks without foundation. But I suggest the vulnerable LiP is more complex than this, because the vulnerable LiP is permitted to perform adequately and engage with the law competently.
Conley and O’Barr's analysis of rule-oriented and relational-oriented litigants is helpful in understanding this dynamic. Some LiPs view the law as relational and ‘focus heavily on status and social relationships. They believe that the law is empowered to assign rewards and punishments according to broad notions of social need and entitlement’ (Conley and O’Barr, 1990: 58). LiPs who have this orientation to law ‘are frequently evaluated as imprecise, rambling, and straying from the central issue’ (Conley and O’Barr, 1990: 58). But other LiPs are rule-oriented, namely those who ‘see the law as a system of precise rules for assessing responsibility, and reject as irrelevant everything not circumscribed within these rules’ (Conley and O’Barr, 1990, 58). LiPs who view the law in this way will ‘mesh better than relational ones with the logic of the law and the agenda of the courts’ (Conley and O’Barr, 1990: 58). It is, therefore, permissible to be a vulnerable LiP who performs adequately. The vulnerable LiP will be expected to use up more time than an advocate, for a common justification about why LiPs are problematic is that they are a drain on court resources, but their performance does not need to be a failure. The vulnerable LiP can be an object of sympathy, someone trapped in the system doing their best and doing a serviceable job.
Whether or not they succeed in their case is less important. Failure, as Leader argues, is the role of LiPs and this ‘reinforces the need for legal professionals’, so failure is helpful in this regard and indeed, most will fail. The occasional success of LiPs is also helpful, however, because the successful LiP stands as example that success is possible. A successful, vulnerable LiP is evidence of the court's legitimacy: despite the need to address market failure in legal services, the court itself remains legitimate as it is possible to win.
The inside actors’ attachment to the role of the vulnerable LiP lies in the fact that it is an important tool in the fight for better access to justice. Where access to justice is (mistakenly) equated with access to lawyers (Sandefur, 2019), LiPs serve an important function of providing evidence for why society needs more legal aid. As LiP numbers rise, lawyers can sound the alarm bells that legal aid is underfunded and that something must be done. The obvious something being to fund more lawyers.
If LiPs are vulnerable and want help, then they are deserving of the care and support of the legal profession to give them what they otherwise wanted, but which has been denied to them. Lawyers can fulfil the role of protectors of the rule of law. The vulnerable LiP is an object of sympathy and also frustration, but the frustration can be sheeted back to the system that fails to provide enough lawyers, forcing the vulnerable LiPs into the position they find themselves.
The counterargument might be that even if it is true that the inside actors push LiPs into these categories, it is only because LiPs fail to fulfil the desired role that they are lawyer-like. The lawyer-like LiP might not always get it right, but surely the best LiP is the LiP who can most closely approximate the lawyer's performance? LiPs themselves will strive to fulfil the lawyer-like role, and the insiders who try to assist LiPs (and there are many who genuinely do try to help) are trying to coach LiPs to approximate lawyers. While on one level, the insiders would like LiPs to be lawyer-like (certainly for efficiency), it is neither possible nor ultimately desired that they perform this role.
The Lawyer-Like LiP
The lawyer, in the sense of the role insiders might think they want the LiP to perform, is the paradigmatic or ‘benchmark lawyer’. 3 The benchmark lawyer is rational, reasonable, and careful with court time; self-reliant; knowledgeable in the law; and bringing only well-formed arguments. They do not have ulterior motives for the litigation but seek only to clarify the legal position that is necessary to settle a dispute. In other words, they share the judge's primary motivation in resolving cases in a way that clarifies the legal position and settling cases where no real point of law is at stake.
Guidance for LiPs is evidence that this is the role insiders want the LiP to fulfil. LiPs are exhorted to ensure what is put before the court is concise and relevant (Ministry of Justice, March 2022), to behave ‘quietly, courteously, and respectfully’ (Bailey et al., 2013: para 16.15), and not to waste the court's time (Bailey et al., 2013: para 16.16). A LiP who adopts this lawyer-like role may indeed be well-regarded by the court. Such a LiP will engage in rules-based argument (Conley and O’Barr, 1990: 33), be careful with court time, ask for no assistance from the opposing counsel, court staff, or judge. To play the role well, they will also mirror the social class and education of the majority of lawyers through dress, presentation, reasoning, and style of interaction.
I suggest that to imagine that the ideal LiP is lawyer-like is an error. It is an error that is made by both the insiders who imagine this is what they want from LiPs, and LiPs who guess that this is the role expected of them. A performance of the benchmark lawyer by a LiP is not practically achievable, but even if it were, it is not permitted by the insiders in the social world of the court.
First, it is important to briefly traverse why being lawyer-like is not practically achievable. LiPs are highly unlikely to be able to successfully imitate a lawyer because so much of what the judiciary and profession consider a good performance of the benchmark lawyer is highly coded and culturally specific. The most obvious element of this is the written and verbal discourse that lawyers use, which is so embedded in legal practice that insiders consider it simply an evolved form of reasoning and precision (Mertz, 2007: 98). As Mertz has argued, it is in reality a very peculiar, culturally-laden form of communication (Mertz, 2007: 98). Very few LiPs will be able to master the legal style taught to law students (over a period of three or more years). There are many other difficulties, including the role conflicts in being both party and advocate, and the enormous task of mastering not only substantive law but procedure and evidence, issues that have been well traversed in the literature.
The second, more subtle reason that LiPs cannot play the lawyer-like role is that the LiP has special restrictions and is defined as distinct from that of a lawyer. One domain where this can be observed is the presentation of emotion in civil court proceedings, which I have written about elsewhere and summarise here (Toy-Cronin, 2019). The emotion regime that is allowed to LiPs is much more restricted than that allowed to lawyers. Lawyers are fond of characterising their work as based in reason (invoking the enlightenment divide of reason-emotion) and LiPs as being too emotional. This glosses over the fact that, as Maroney succinctly pointed out, emotion is used by lawyers who ‘employ the tools of persuasive rhetoric. No lesser mind than Aristotle taught us that emotion is central to rhetoric, and certainly that is true in the courtroom’ (Maroney, 2016: 5). LiPs cannot deploy emotion in the way that a lawyer can. Using emotional displays as a rhetorical device will raise questions about the LiP's own character but do not that have that effect for a lawyer, who will be assumed to be playing the role of advocate. As a LiP who understood this said: I took a lawyer in for that just to finish it off, just to speak a bit more aggressively in court, because in court, when you are self-represented, you can’t speak aggressively. Alright? You can’t thump your fist on the bench and start saying ‘These allegations are ridiculous and false, and no, I don’t have anger issues’. You can’t do that, but your lawyer can.
Another aspect of the distinct regime for LiPs is dress. In New Zealand, this is set out in advice to LiPs published by the Ministry of Justice: ‘You should wear formal business clothing when you appear in court’ (Ministry of Justice, September 2021). Lawyers’ dress is similarly prescribed, although with more detail: ‘Wear appropriate attire. This should be reasonably formal. For men this will be a dark-coloured suit with a collared shirt and tie, and for women attire of an equivalent standard’ (Courts of New Zealand, May 2009). Dressing informally is a cause for reprimand, for treating the court with a lack of respect. Dressing too formally is also a violation of the regime. For example, in the Australian movie The Castle, the character Farouk attends a court hearing wearing a tuxedo. His costuming is for comic effect, a reference to a lay person failing to understand the dress-code of the court.
Looking too much like a lawyer is also a problem though. One judge hinted at this in their description of a ‘serial offender’, who brought appeals from a lower jurisdiction, always over the same issue: ‘Now he does nothing else. He dresses in a suit and carries briefcases and previous decisions and things like that’. If LiPs are indistinguishable from lawyers, they start to make a lawyers’ claim to special status precarious. This might be thought of as the ‘sneetches problem’. In Dr Seuss’ tale The Sneetches, the plain-belly sneetches have stars put on their bellies so they are indistinguishable from the higher status star-belly sneetches, until ‘neither the Plain nor the Star-Bellies knew whether this one was that one … or which one was … who’ (Seuss, 1998). Alternatively, it may be that if LiPs are indistinguishable from lawyers, the social order of the court comes under threat. There is a danger that the disorder that the public bring might accidently be brought into the inner circles of the social world of the court (Rock, 1993: 4). The dress code for LiPs then is formal but not at the same standard as lawyers; there must still be distinguishing characteristics.
This inclusion while keeping LiPs within the confines of the ‘public’ category can also be seen in the access that LiPs are given to the court spaces. As Mulcahy has observed, allocation of space in courtrooms can serve to signal segregation and inequality (Mulcahy, 2007: 385). Despite any formal rules addressing the issue, LiPs in New Zealand are kept ‘at bay’ in the courtroom, as discussed in the introduction. Lawyers, judges, and court staff all patrol the courtroom to ensure that while LiPs are heard, they are not given the same status as lawyers. A judge explained this practice: Our court takers always ensure they sit at the back, and I invite them to come and sit up at the front, at counsel's table … It is just courtesy. They are not entitled to be seated on counsel's benches because they are not counsel, but because they are appearing for themselves, they are being heard, we allow them in.
LiPs are also judged on their tenacity in a way that is distinct from lawyers. Where tenacity by a lawyer might be celebrated, tenacity in a LiP is a cause for suspicion. Many litigants do not have enough tenacity to be considered a full-LiP in the first instance. Studies of LiPs categorise many LiPs as ‘inactive’ (Moorhead and Sefton, 2005) or ‘vanquished’ (Hunter et al., 2002), those who are a party on the court record but do not take an active role in proceedings. These are LiPs on the books, but they are not LiPs in the sense that springs to mind when asked to conjure a mental image of a LiP. But if LiPs are perceived as too tenacious, they risk slipping from vulnerable LiP into vexatious LiP. There is a pervading fear that lurking inside any LiP is a vexatious LiP. As a High Court Judge explained: The lore – L-O-R-E, or the mythology, is this: with many vexatious litigants they were people who in their first encounters in the legal system were treated unfairly and they then went away with a sense of unfairness. It may be that they didn’t have any merit in their case anyway. But the fact that they when went away feeling they have been treated unfairly or felt that the judge had got the matter wrong and that triggered something in them that brought them back again and again.
The court actors are alert to signs that the LiP might be too tenacious. A tactic used by lawyers is to tell the court how long the litigation has been in train. As one LiP explained: The whole key has been that they’ve discredited me to the courts. All they [opposing counsel] need to say is, ‘He is vexatious’. And the court says, ‘Oh yes, he must be if he has gone along [litigating] for seven years. Who in their right mind would go along for seven years?’.
This is not to suggest that some LiPs do indeed meet the stereotype of the vexatious LiP. The point is that there is little room for LiPs to move, far less room than is granted lawyers. A LiP may be fighting a just cause. As Herman argues, vexatiousness can be seen as a ‘passionate search for justice, as opposed to, or at least as well as, an “obsession”’, and a ‘melancholic attachment’ to the pursuit of a particular agenda ‘can underpin human agency and social change’ (Herman, 2012: 28–29). While those who have encountered a difficult and even dangerous vexatious litigant may have little sympathy for such a view, 5 it is also the case that those who are engaged in a passionate search for justice may too readily be cast as a vexatious LiP.
Conclusion
I am arguing that there are two roles that the insider actors define for the LiP – the vulnerable and the vexatious. They achieve these characterisations via boundary work where they define LiPs as characteristic of one of these two roles, where both roles serve important functions for the profession.
Being cast in these roles has important practical effects. The closer the LiP is to the vulnerable LiP, the more likely they are to receive assistance. Engler argues, based on a review of US case law, that LiPs will be treated differentially, depending on the court's level of sympathy towards them: The more annoyed the court is with an unrepresented litigant, the more likely the invocation of precedent requiring impartiality, the application of similar rules, and a prohibition of playing advocate for the litigant. The more sympathetic the litigant, and the more the absence of counsel seems beyond the litigant's control, the more likely the court will be to articulate a need to provide additional assistance to avoid a miscarriage of justice. (Engler, 1999: 2015. See also Moorhead, 2007: 410).
This boundary work is carried out while the insiders simultaneously promulgate, and probably believe, that the ideal LiP is the lawyer-like LiP. In practice, the LiP cannot be lawyer-like. In addition to the practical difficulties to self-advocacy and rapidly acquiring formal and cultural knowledge, their role is restricted by the insiders who judge and confine them on dimensions including emotion, presentation of self, and tenacity. The result is a great deal of confusion for LiPs. Some of them engage in acts of resistance – particularly those pushed into the category of vexatious LiP – by labelling the insiders as part of an ‘old boys club’, suggesting conspiracy and corruption.
This article suggests no solution to these issues but takes the standpoint that by examining the boundary work that is occurring, reformers will be better equipped to create real change. For example, reform suggestions that emphasise the provision of self-help material will not overcome these social issues in the court. If reform is to be effective, it needs to take into account the dynamics at play, more fundamentally reshaping the relationships between the actors who occupy different positions in the social world of the court.
Footnotes
Acknowledgements
The author thanks Sharyn Roach-Anleu for her invaluable feedback on an earlier version of this paper, and to Jane Wangmann and Kayla Stewart for their comments and conversation on an early draft.
Declaration of Conflicting Interests
The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: The author received funding from the New Zealand Law Foundation for the research projects referred to in this article.
