LIC & the Litigants in Person in NI Project
Exploring the common ground between the work of the LIC and the Litigants in Person in Northern Ireland (LIPNI) Project, we find the unifying characteristics of applying creative approaches to problem solving and harnessing the use of technology, both in pursuit of improving access to justice. The LIC supported the LIPNI Project in the creation of the Pathfinder Tool mentioned below in the project description, and continues to support it in phase 3 with the roll out of another human centred design process.
The LIPNI Project explores legal participation as a key component of the right to a fair trial. Legal participation relates to using legal means to pursue a legal claim in such a way as to be able to influence the outcome of the case. We would expect legal participation to flourish when a litigant is represented by a trained lawyer who can navigate the processes, legal arguments, etiquette and protocols of a court case.
In the civil and family justice system, there is no automatic right of representation, making litigating in person permissible and accepted. Yet, the system is designed in the main for two fully represented parties in a case. This means there can be shortfalls in how LIPs are accommodated and accepted in the litigation process.
Without the services of an effective and practiced mediator, an unrepresented litigant may flounder and instead experience barriers hindering their legal participation. Inhibited or absent legal participation will impinge on the availability of the facts of the case needed to make an informed and fair judgement.
Phase 1 of LIPNI (2016 – 2018) identified four main barriers to how LIPs participate in their cases, and highlighted as priorities, amongst others, the need for cultural change to normalise the presence of litigants in person in the court system and for information materials on how to run a case to be available. Phase 2 of LIPNI (2019 – 2023) adopted research methods unfamiliar to legal research to address these two priorities.
Human-centred design, familiar in UX and other design fields, was used to determine whether as a method it could create empathy between system users and system providers to break down the negative attitudinal barrier and bring about cultural change. At the same time, the outcome of the design process was aimed at co-producing some form of support for assist LIPs. HCD is a highly participatory method where the needs and characteristics of the users who will use the product or system drive the design process.
A Design Group of people who were or had been LIPs or had experience of proceedings involving LIPs worked together and ultimately decided on an information website and an online navigation tool as their preferred supports. This co-production experience generated empathy between the LIPs and other stakeholders in the group, successfully countering negative attitudes. However, the study could not determine whether this attitude change would prevail.
While the Design Group’s promotion of a website - Family Court Information in Northern Ireland - was a practical and accessible solution to the lack of available information about litigating in person, it was hardly innovative. However, their choice of an online navigation tool, Pathfinder Tool, that guides users according to their circumstances to the specific information they need, was innovative and resulted in the creation of an original, NI-specific guided pathway tool.
The idea for the Pathfinder Tool and the website came about through the collaborative design process, discussion and exploration of what a court-user may need. Colliding the views of those with the lived experience of litigating without a lawyer (LIPs), of those who provide information to LIPs (court officers and advisors) and of those who represent clients in court cases (lawyers) along with the views of others yielded dozens of ideas, but sifting to the top were a navigation tool and website. Neither had been planned for by the research team beforehand. There is a strong element of ‘trust the process’ in HCD which encourages and relies on this collision of ideas, experience and preferences of stakeholders who do not share the same perspective.
The Pathfinder Tool is available both on the Family Court Information in NI website- or as a downloadable app.
The Pathfinder Tool was constructed using conditional logic in JotForm and it moves the user from one dialogue box to the next according to the responses they give. There are dozens of separate pathways each of which ends in further information pertinent to that navigated path.
The website and Pathfinder Tool complement each other in that the website provides a detailed reference point holding a huge amount of information about litigating in person and the Pathfinder offers a surgical route to a specific information need.
A separate research avenue explored in Phase 2 was the nature of legal participation itself to make it more tangible and identifiable for all court actors. An absence of legal participation that may result in a mis-trial can only be claimed after the judgement has been delivered, so a description of legal participation in vivo was developed using another unfamiliar research method – Q methodology. Q-methodology uses factor analysis and qualitative analysis to examine patterns of opinion on a particular topic, exploring perspectives and identifying commonalities and differences in viewpoints. It originates from psychology but has been adopted in dozens of disparate fields of study to examine subjectivity.
This methodology was used to understand the subjective points of view of stakeholders of the justice system (litigants in person, judges, lawyers, McKenzie Friends and court officials) and to validate an empirical analysis of legal participation against a doctrinal analysis of legal participation in ECtHR case law on Article 6 ECHR right to a fair trial. This produced ten descriptors of legal participation which can act as an aide memoire for judges and court officials to be vigilant of the potential barriers to legal participation LIPs may face.
Phase 3 of LIPNI continues without the support of The Nuffield Foundation, the funder of the first two phases, and works to implement other recommendations from Phase 1 and 2, in particular to bring about cultural change and improve access to justice. A further HCD process will take place in the autumn of 2024 with the Law Society of NI and LIPs to develop a set of guidelines for lawyers and litigants, both represented and unrepresented, on what to expect from each other.
In addition, the researchers will hold an awareness raising workshop on legal participation with judges of the Office of Industrial Tribunals & Fair Employment Tribunals. The web resources will be maintained and updated by the researchers until 2025 when they are due to be taken over by the Department of Justice.