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Mind The (Legal) Gap

Our People - Loretta Orsi-Barzanti
10 May, 2016

Thanks to Legal Aid Agency’s huge cuts in legal aid for family law, there is now a massive gap filled with people with legal problems who cannot afford private representation but who do not qualify for Legal Aid.

I see countless people in our free legal advice clinic who fall in to this category who desperately need advice about the family proceedings that are currently underway but can’t afford it.

The main problem my clients face is that they do not know what do to when they are at court on their own. Here are some things to think about before you go to your court hearing:-

1. A JUDGE IS GOD IN THEIR COURT

Probably the first thing I was ever told when I started working and it’s stayed with me ever since. The vast majority of judges are absolutely great and have a brilliant understanding of what it is like to be without representation. Judges, however, will do what they like in their court rooms. Don’t get me wrong, I’m not saying you should always agree with the judge – and there have been plenty of times where I have been the poor lamb served to the wolves and subjected to an unrelenting ear-bashing.

Be polite, be courteous, be helpful, but stand your corner. Annoy the judge at your peril!

2. THE USHER IS YOUR NEW BFF

The Court Ushers are under massive strain. They have to deal with hundreds of people every day and are often the first person likely to experience the wrath of an unhappy judge. The more polite you are to them, the more polite and helpful they will be to you.

3. THINK ABOUT WHAT YOU ACTUALLY WANT (BEFORE YOU GET TO COURT)

Whether you are the person who issued the application or the person who received the application, you should really think about what it is you are going to ask the court to do. What is it that you really want? What do you need from the judge to allow you to get what you want? Why are you asking for it?

Think about how it will work in practical terms.

All too often is see people wanting “this” and “that” but not really knowing how to go about it or how it will affect them on a day to day basis. A lot of people ask the judge to make orders simply because it will annoy their opponent, not because it benefits their case in any way. If you are going to ask the court for something, make sure you know why you want it and what the benefits of asking for it are.

The judge will expect you to be able to explain WHY you want something. Saying, “because I do” is not sufficient. Neither is, “because I said so” or “errrr… I dunno”. A judge will not order something to happen in the case unless she/he can be persuaded that there is a legal basis for making the order and that there is a good reason for the order to be made.

4. MAKE YOUR POSITION CLEAR

Often clients are overcome with fear when they enter a court room and can’t get their words out. The best way to counteract this is to prepare a document called a “position statement”. It is a short statement setting out what your position on the proceedings is.

Give it to the court usher to give to the judge and hand one to your opponent. Not only will the judge know what you want in advance and will have time to consider it before they see you, you will feel more confident just
by having it with you and you can use it as an aid during the court hearing if the cat gets your tongue.

5. KEEP TO THE POINT

The judge does not want to hear about anything other than your case. Everything you say to the judge should be 100%, absolutely, completely, directly, related to your case. If it isn’t, don’t say it. The judge doesn’t want to know about your how tea at Aunt Ethel’s went last Sunday – no matter how good her Victoria sponge is.

6. POLITENESS IS KEY

Be polite to your opponent. This doesn’t really need an explanation but, the more difficult and rude you are to your opponent, especially if they are represented, the more difficult they are going to be.

That being said, if your opponent is being difficult and rude with you, this is not something that you should stand for. Cease negotiating with them and raise your concerns with the judge and make your requests to the judge for what you are seeking.

7. SPEAK WHEN YOU’RE SPOKEN TO

The etiquette is that you should not interrupt someone when they are speaking in court. Each person has their turn. You should wait until they have finished speaking before starting to say what you want to say. Equally, they should not interrupt you.

On the same note, if the judge asks you a question, you should answer it. What you shouldn’t do is shrug your shoulders, stay silent or look blankly into thin air. If you’re unsure of what to say, explain to the judge that you are nervous and are not sure what to do. The judge will almost always be sympathetic to this and give you some time.

8. BE REALISTIC

You would be surprised at how unrealistic people can be. I have seen it all and some things are about as realistic as seeing a pig flying over a rainbow eating a bacon sandwich.

Think about what it is you are asking for. Think about how that fits practically and legally. If you cannot afford a one-off advice session, try to get some advice from a local CAB or a local free legal advice clinic on your issue so that you know the legal basis of your case. If you don’t, this will inevitably lead to you having unrealistic expectations of what you can achieve.

9. FIX UP, LOOK SHARP

Appearance is key. Be smart and well turned out. You do not necessarily need to wear a suit but you should wear something that is in keeping with the surroundings. Smart casual is fine.

I have been at court where people have turned up in tracksuits, half slumped over the bench, either through sheer panic, fear or because of a ghastly hangover. Whatever the real reason, it gives a bad impression to the judge.

Tracksuits should be avoided at all costs, so should any other sportswear. Evening wear and fancy dress are also big no-nos. I once had to sit next to someone at court who was dressed as a cat.

True story.

Keep it simple. Even if it’s just to avoid giving solicitors/court staff/judges the opportunity of using these anecdotes at their next dinner party. Please.

Head of Family (Private Law)
Loretta Orsi-Barzanti is an associate solicitor and head of our Private Family Team. She advises on all aspects of Public and Private Law.

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