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).
Sabine Kurjo McNeill said:
No, Natasha,
My observations are based on personal experiences:
1. a law student told me that his professor had said in their profession it is sometimes necessary to lie…
2. McKenzie Friends tend to be OLDER people who have learned from suffering injustice, not academic teaching.
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Forced Adoption said:
I have always thought that in any person appearing in court should be free to nominate any other person of their choice to represent them.I also think that such persons should NOT be paid other than justified expenses .(food,travel,and accommodation etc).This would prove that person’s sincere desire to help rather than make money out of the case.
Too often professional lawyers instruct their clients (especially in the family courts) instad of vice versa as it is mean’t to be(plead guilty even if you are innocent or “do not fight the authorities” etc);Lawyers need a little competition from sincere and altruistic volunteers!
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Norman Scarth (@NormanScarth) said:
With no experience of addressing a court, newly qualified graduates are not likely to be any better than the LIP, many of whom are literate & articulate.
The GREATEST need of the LIP is assistance with research, & new graduates SHOULD be good at this.
PS: I tried to click ‘Like’ on the posts above, but was taken to some silly ‘password’ thingy!
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Natasha said:
Many thanks for your thoughts, Norman. Have no idea what the ‘password thingy’ is.
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keith said:
yes i agree,
we should be looking to encourage all those with valuable skills to help out. not just Law students.
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Natasha said:
Thank you for your thoughts and comments so far.
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Norman Scarth said:
To Natasha,
I tried to post the Comment below:
“With no experience of addressing a court, newly qualified graduates are not likely to be any better than the LIP, many of whom are literate & articulate. The GREATEST need of the LIP is for assistance with research, & new graduates SHOULD be good at this. PS: I tried to click ‘Like’ on the posts above, but was taken to some silly ‘password’ thingy!” Then, when I clicked on ‘Post Comment’, it told me I had to put in a ‘URL’ – whatever that is! Whether it has appeared or not, I don’t know. (Mi skooldays wer in the 1930s, & they didn’t teech us about computers then. Becoming senile hasn’t helped!) Norman Scarth. PS: I should have said the SECOND greatest need. The greatest need is finding a way to overcome the hatred towards the LIP which is endemic throughout the legal profession. One would hope that hatred would be put to one side when the lawyer swears the Judicial Oath. Sadly, it does not, it increases – & s/he has the power to indulge it! NS. ________________________________
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Shaun O'Connell said:
There doesnt seem to be much love lost between those in the system who want the old days to return wiith free lunches and selling the client to highest bidder and those who try to assist sometimes for ulterior/ exterior motive and those who do the best they can under limited conditions. What is certainly true is that having a law degree does NOT give any experience in a. family law except a basic legal outline of the Children Act b. no knowledge or experience of ‘justice’ behind closed doors or how the system really operates c. the vested interests of the various parties or d. the real history of family law and it’s appliance now – if Family law was genuine as indeed LJ Munby tries to make it…then perhaps the Family Division should move to a fully open Court – but then we need to shroud it in mystery…..after all that way any movement to publishing a few judgements – soundbites of one side to the case – will cover it it all up and anything said otherwise is a heretic……. have seen some injustices in my life that need full exposure…but then even Hillsborough took some time and energy to uncover…..
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maureenjenner said:
‘Keeping it in the family’ is one way of ensuring the current evils and malpractices persist. I’m for letting in as much air and light as possible, mixed with a generous helping of common-sense and a lifetime’s experience often all that’s needed to see through the murk surrounding too many cases already tainted with injustice.
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