Litigating without speaking legalese

Abstract

The increasing number of unrepresented litigants in various jurisdictions raises the question of what challenges these lay people face in their access to justice. This article seeks to examine this by conducting a small ethnographic study and survey in Hong Kong. Based on 6 hours of courtroom observation in two cases and 8 hours of pre-trial, during trial and post-trial interview data obtained from 7 sessions, we show that unrepresented litigants may find navigating difficult legal phrases, legal homonymy, legal genre and linguistic repertoire in court particularly challenging. They also risk overestimating the merit of their case when they deploy lay strategies (i.e. a translation approach or a literal reading approach) to legal interpretation and case preparation. The survey results lend support to our ethnographic study by revealing why unrepresented litigants seem to be ill-prepared for their cases in the eyes of legal professionals. We conclude that unrepresented litigants face both linguistic and legal challenges during their participation in legal processes, and often these challenges are intertwined. We therefore suggest that both linguistic accommodation and legal assistance are essential to help unrepresented litigants participate effectively in legal processes. This is especially important in the adversarial courtrooms of common law jurisdictions, to ensure access to justice for the general public.