Abstract
Rabeea Assy’s book provides an original argument on the right to self-representation. The very existence of a right to self-representation, let alone an unfettered one, has only scarcely been discussed in modern academic literature. However, self-representation is one of the main issues that occupy the legal community today. The civil justice system is experiencing what some would refer to as a crisis, as litigation in courts is becoming too costly and too discomforting for normal citizens. Many people in common law jurisdictions are no longer in a position to secure legal representation. One of the results of this difficulty in litigation funding is likely to be an increase in self-representation. The response of the civil justice system so far has focused on exploring ways to assist litigants in person to make the most of their self-representation (p. 1).
Assy argues that adjusting the legal system to accommodate the needs of litigants in person is not the right solution (p. 4). Instead, he suggests another look at the right to self-representation. As Assy explains, the theoretical significance of self-representation in civil proceedings has hardly been examined (p. 1). Following a close analysis of the history of the right to self-representation and its rationales, Assy contends that the value of the right to self-representation is insufficient to outweigh its consequences. In particular, Assy convincingly shows that while there may be a rationale for the right to self-representation in criminal proceedings, it is difficult to justify a fundamental right to self-representation in civil proceedings. Assy presents the only court decision in which there was a substantial discussion of self-representation – the US Supreme Court decision in the Faretta case (Faretta v. California 422 US 806 (1975)) – to show that, historically, the right to self-representation was justified on the grounds of respect for autonomy, with reference to considerations that are specific to the criminal context (Chapter 2). These considerations include the state’s power over the individual and the gravity of the interests at stake (pp. 36 ff.). In Assy’s words, ‘The unique risk to physical liberty posed by the criminal process gives rise to the liberal concern over abuse of state power’ (p. 37).
Assy rejects the assumption that every litigant should be free to choose whether to represent herself in person or through counsel, concluding that self-representation is ineffective and inefficient (Chapters 1 and 4). He argues that self-representation does not promote the administration of justice since, not only is self-representation not beneficial for the litigants in person themselves (especially in complex cases), it also leads to a waste of public resources and thus negatively affect other litigants (pp. 22 ff.).
In addition, Assy maintains that respect for personal autonomy does not require a right to self-representation under all circumstances (Chapter 7). He explains that procedural rules are optional, as opposed to coercive or restrictive (pp. 149 ff.), and that providing legal representation could serve the value of personal autonomy by providing litigants with a better tool to represent their position. Even the value of participation could be achieved through legal representation, according to Assy, as it facilitates and enhances the right to be heard (pp. 158 ff.).
In this period in time where more litigants are likely to represent themselves due to the costs of civil litigation, Assy’s contribution is extremely important. Common law jurisdictions have yet to find a comprehensive mechanism to handle litigants in person. Policymakers dealing with this matter should therefore use Assy’s detailed investigation of this issue. However, there are a couple of additional points missing from his analysis that could be developed in any future debate about litigants in person.
The first point relates to legal aid. Assy excludes financial means from consideration when he considers the right to self-representation, since the focus of his book is ‘on the theoretical value of self-representation, all other things being equal’ (p. 7). In that sense, Assy’s argument is sound. However, a comprehensive treatment of the issue of litigants in person, especially when considering policy changes, would require a more extensive deliberation in relation to legal aid. Dealing with the issue of legal aid is crucial because Assy argues that self-representation is not effective for several reasons, including the complexity of legal rules and the limitations of simplifying the language of law (p. 4, Chapters 1 and 4). His observation that self-representation is ineffective is important since it could improve the situation of litigants who do have access to legal representation, by making legal representation mandatory for them. However, in England, where recent changes to legal aid and litigation funding has resulted in many people no longer being in a position to secure legal representation (UCL, 2014: 4), it may be more effective, for those who cannot access any professional assistance, to litigate in person than not to litigate at all.
It should be stressed that Assy does not ignore the importance of legal representation. On the contrary, he cites Professor Adrian Zuckerman, who described the relationship between self-representation and legal representation: ‘access to court would be of little value without an additional right to professional assistance in litigation’ (p. 18). However, this is exactly the reason access to legal representation should not be left out of the equation.
Assy also discusses the question of legal aid in chapter 9, where he presents ways to enhance access to legal services, including using legal aid but also by reducing legal expenses and developing devices such as legal insurance and contingent fee agreements (pp. 200 ff.). While Assy clearly recognizes that ‘litigants must have legal representation in order to have a reasonable chance of success’ (p. 203), under his analysis the issue of legal aid is separate from the (lacking) theoretical justification of the right to self-representation. However, in reality the two matters are tangled in an inseparable bond.
To demonstrate this argument, we may consider Assy’s claim that self-representation is ineffective, since litigants in person lack knowledge and skills. According to Assy, it has been shown that litigants in person fare worse than those who are represented (p. 10). He acknowledges the widespread belief that litigants in person are not typically represented because they cannot afford legal counsel. However, his response is that we have little systematic collection of empirical data on this and that the data we do have are not sufficient to provide a reliable picture of the reasons that motivate litigants to litigate in person (pp. 19 ff.). However, is the lack of empirical data satisfactory to deny self-representation from litigants who cannot afford professional advice? This appears to be a problematic conclusion.
In relation to the empirical data, it is also important to mention that the empirical evidence showing that litigants in person fare worse than those who are represented does not include litigants who cannot access courts at all. Perhaps for those litigants the suggestion to adapt the legal system to suit their needs, at least in certain cases, should not be taken completely off the table. In any event, the right to self-representation and the question of legal aid are more intertwined than it first seems.
My second point relates to the application of Assy’s ‘general principle’. Assy suggests a general principle according to which ‘legal representation be formally required when litigants are unlikely to be able to present their cases effectively and without imposing disproportionate costs on other litigants’ (p. 1). He explicitly mentions that the aim of his book is not to examine the specific application of the general principle and that the exact circumstances in which the principle should be invoked could be worked out separately.
Establishing a general principle in relation to litigants in person is indeed a significant contribution, to say the least. The general principle suggested by Assy seems to balance all the relevant factors correctly. Nevertheless, the general phrasing of the general principle could raise a concern as to whether the application of the principle would sometimes be too costly or too complicated in reality. More specifically, there are two terms in the wording of the general principle that would require further legal interpretation. First, the general principle requires an examination of whether ‘litigants are unlikely to be able to present their cases effectively’. This calls for an individual assessment of each litigant and her abilities. Second, the general principle requires that self-representation would not impose ‘disproportionate costs on other litigants’. Again, this requires an evaluation of proportionality, which is not an easy task. This point is raised here since it may affect not just the application of the principle, but also our answer to the question of whether this principle should be employed. In other words, the cost of applying the principle is relevant to the theoretical question of whether this principle ought to be adopted, and not just to the specific application of the principle in each case.
Since the cost of the application of the general principle might outweigh its value, it is possible to consider a simpler rule that would also take into account the previous issue of means to fund legal representation. For example, instead of examining litigants’ ability to present their cases effectively, a rule could be considered that gives a right to litigate in person to litigants who, on the one hand, cannot afford legal counsel and, on the other, are not eligible to obtain legal aid.
To conclude, Assy’s book is imperative reading, given the current state of the civil justice system. The book is a rare contribution in this field and it will undoubtedly foster a much more informed and careful discussion on this contemporary topic of self-representation.