No Justice Without Lawyers The Myth of an Inquisitorial Solution

Abstract

The withdrawal of legal aid from most areas of civil litigation has resulted in a large increase in litigants in person, or unrepresented litigants. The volume of cases in which one or both parties have no legal representation presents the courts with two challenges; one of resources and the other of justice. A court dealing with unrepresented litigants has to devote more time and effort to the process since lay persons cannot handle litigation as efficiently as lawyers. Further, since unrepresented litigants lack the knowledge or skill necessary for the effective prosecution of their case, they are exposed to a risk of losing which is unrelated to the merits of their case; ie, a justice deficit. The paper deals with strategies that have been proposed or employed for dealing with these problems. One of the strategies involves the introduction of a more inquisitorial procedure in order to redress the justice deficit. However inquisitorial proceedings, in which the court takes over the presentation and testing of evidence, provide a poor solution to the problem. Contrary to what some assume, no modern system in Europe or elsewhere employs such inquisitorial process in civil cases. Both the common law and civilian systems embrace an adversarial model because a judge who undertakes the development of party case is bound to lose impartiality long before pronouncing judgment. Both systems recognise therefore that justice, like all other specialist services, can only be delivered by trained professionals. This is why legal representation is mandatory in civil proceeding (other than small claims) in all major European jurisdictions. If legal representation is mandatory in systems considered inquisitorial, how can an adversarial system manage without it?