Litigants-in-person as intruders in court

• Autore: Tatiana Tkacukova
• Carica: The A. is a Marie Curie researcher, Centre for Forensic Linguistics, Aston University
• Pagine: 77-96

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Litigants-in-person as intruders in court

TATIA NA TKACUKOVA∗

SUMM ARY:1. The buzz around pro se litigants – 2. Data – 3. Methodology – 4.

Interaction between the judge and pro se litigants – 5. Conclusions on the function of

the judge – 6. Indirect interaction between the pro se litigants and the opposing counsel

via the judge – 7. Conclusions on the strategies of the opposing lawyer – 8. Further

research

1. THE B UZZ A ROUND PRO S E LIT IGA NT S

The common saying that “the lawyerwho represents himself has a fool for

a client”1conveys theview held by many legal professionals. Self-represented

litigants experience many diff‌iculties, which range from having to manage

various administrative tasks and legal matters to standing before court and

interacting with legal professionals and witnesses. Yet many lay people do

choose to represent themselvesand self-representation is especially common

in divorce cases and small claims cases.

Litigants opt for self-representation even in high-prof‌ile cases. The list of

some of the notorious cases from the USA and UK is very versatile: John

Allen Muhammad v. the Commonwealth of Virginia in 2003 (after present-

ing his opening speech, the defendant agreed to being represented by an at-

torney); Farhad v. UnitedStates in 1998-1999;USA v. Zacarias Moussaoui in

2002-2006 (the defendant was ordered to proceed with a court appointed at-

torney later in the course of the trial); Colin Ferguson v. USA in 1994; Kolen-

der v. Lawson in 1983; David Irving v. Pinguin Books Ltd and Deborah

Lipstadt in 2000; McDonald’s Corporation v. Helen Steel and David Morris

in 1994-1996. There have also been cases with pro se litigants before Inter-

national Criminal Tribunals2: a former president of Serbia and Yugoslavia,

Slobodan Miloševi´

c, represented himself in 2002-2004; the f‌irst president of

the Republic of Serbia, Radovan Karadži´

c, represented himself in 2008-2009.

Social, educational and f‌inancial background of the above-mentionedself-

represented litigants widely varies; their reasons for representing themselves

∗The A. is a Marie Curie researcher, Centre forForensic Linguistics, Aston University.

1N. JØRGE NSE N,The right of the accused to self-representation before international criminal

tribunals, in “American Journal of International Law”, Vol. 98, 2004, n. 4, p. 711.

2Ibidem.

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78 Informatica e diritto /Diritto, linguaggio e tecnologie dell’informazione

also differ greatly. In general, one of the most common reasons for self-

representation is the lack of f‌inancial means for counsel fees. In civil pro-

ceedings, litigants usually have to represent themselves in case they cannot

afford a lawyer. In criminal proceedings, however, the court appoints an at-

torney or a counsel in order to ensure the fairness of the trial. Nonetheless,

even in criminal cases litigants who distrust the appointed lawyers some-

times choose to represent themselves rather than deal with biased lawyers.

Self-representation is also chosen by litigants who hold strong ideological

believes and want to address the jury and witnesses in person in order to

elicit sympathy from them.

Self-representation is not alwaysa readily-available option and courts con-

sider, for instance, mental health before granting litigants the right to repre-

sent themselves. In the past, there have been occasions when self-representa-

tion was misused. During the rape case in 1996 in the UK, the rape victim

Julia Mason was subjected to a six-day long cross-examination conducted by

Raston Edwards, who was later convicted of raping her. The defendant kept

asking his victim embarrassing and provocative questions about the rape.

This particular case contributed to a reform, which has lead to the Youth

Justice and Criminal Evidence Act 1999. Under the Act, it is no longer pos-

sible for the accused to cross-examine the victim; cross-examination would

thus have to be conducted by a court appointed lawyer.

The phenomenon of self-representation has not been fully researchedyet.

The reasons for conducting a detailed research aremanifold: the frequent oc-

currence of cases with self-represented litigants, the importance of the acces-

sibility to justice, the signif‌icant inf‌luence the proceedings may have on the

individuals’ lives, etc. The pioneering socio-linguistic analysis on lay people

representing themselves during small claims cases was performed by O’Barr

and Conley3. Another strand of research was introduced by the author her-

self in a single-case study that has dealt with questioning strategies, inter-

action patterns and turn-taking management during cross-examination con-

ducted by pro se litigants4. Nonetheless, linguistic research on self-representa-

3W.M. O’BARR,Linguistic evidence: language, power, and strategyin the cour troom,New

York, AcademicPress, 1982; W.M. O’BARR, J.M. CON LEY,Litigant satisfaction versus legal

adequacy in small claims court narratives, in Levi J.N., Walker A.G. (eds.), “Language in the

judicial process”, New York and London, Plenum, 1990; J.M. CON LEY, W.M. O’BARR,Just

words: law, language, and power, Chicago, University of Chicago, 1998.

4T.TK ACUKOVA,Lay people as cross-examiners: a linguistic analysis of the libel case McDon-

ald’s Corporation v. Helen Steel and David Morris, in “The International Language of Speech,

Language and the Law”, Vol. 17, 2011, n. 2, p. 307-310. T. TKACU KOVA,Cross-examination

questioning: lay people as cross-examiners, in Coulthard M., Johnson A. (eds.), The Routledge