Sir Terence Etherton recently suggested that law students should be able to represent litigants in person in court, and would be ‘far better’ than current lay advisers.
He goes on to say that this suggestion would be a good way to stop the sharp rise in ‘unregulated, uninsured’ paid McKenzie Friends.
There’s clearly more than a hint of protectionism to Sir Etherton’s proposal, inside a sector which is struggling to make the kind of profits it saw before the sub prime mortgage crisis hit and austerity measures kicked in.
But does he have a point?
The case for law students being fed into the court system looks attractive at first glance. Sir Terence suggests that their involvement should be within a framework which includes universities, pro bono centres and law firms (so there may be some insurance and regulation cover there). The students would have completed their degrees but crucially, would not have yet gained a training contract or pupillage. Basic training would be given on the job and students would be supervised by qualified lawyers.
It is also possible that under this proposal clients would not be charged for the support, as costs would be covered by the law firm/ advice centre and any existing pro bono subsidies they currently receive.
Two significant complaints that are often made about lay advisers is that they are occasionally emotional in court and not as good at organising their thoughts on paper as a trained lawyer. The view is that students and their qualified supervisors are less likely to create these issues.
But that’s where the benefits, for clients at least, end.
What Sir Terence doesn’t say, is that most of the lay advisers we see in court today, are individuals with many years of court experience themselves – far more so than any student and quite likely the lawyer overseeing the student, too.
Lay advisers have usually been through the court system in their own cases, and unlike law students who have no experience at all and whose knowledge from law school is completely irrelevant to every day practice, have legal knowledge they can apply.
And whilst some lay advisers are disruptive in court (and there may be legitimate reasons for this), the vast majority behave in a professional manner, and are more than able to put together documents and cross-examine witnesses in court. And unlike law students, guided by firms and advice centres, lay advisers understand the 24/7 requirements of case management and are often on call constantly, offering the kind of pro bono customer service other centres and firms can’t, or won’t.
There is also an ongoing debate about how the current McKenzie Friend sector should be structured which looks specifically at ways to regulate the sector, something else Terence fails to mention. A lot of work is being done to explore this growing sector and to make it safe for clients. Efforts include guidance for McKenzie Friends outlining what they can and can’t do in court, a consultation which ended this June, and comment from the Legal Services Panel (for more information on lay advisers, just type in the phrase “McKenzie Friends” into our search engine. You can also check out our own view on lay advisers here). The sector is here to stay, and advisers without conventional legal backgrounds have been accepted as a given inside the system.
So instead of trying to go against the grain and muscle out non lawyers, perhaps we should be looking to encourage all those with valuable skills to help out.
And yes, we meant to write trolls, it’s a term of endearment (we are after all, trolls ourselves).