Introduction
Dealing with solicitors can be challenging and sometimes frustrating!
This is a bit of a guide for Litigants in Person to dealing with Solicitors, who you are likely to be dealing with on the other side.
Solicitors aren’t your enemy
Generally, solicitors are just doing their job and trying to do the best for their client. It just so happens to be that their client is your opponent. You should remember that the solicitor is not your enemy they are simply taking instructions from their clients.
It may be the case that the solicitors’ instructions are incorrect, or even false – but it doesn’t mean they knew this when writing to you, or that they are colluding with your opponent. It’s always worth carefully considering when to point these things out in a clear, concise and polite way is the way forward – there is no need to go for the jugular.
Albeit that solicitors shouldn’t, there can of often a presumption or tone of condescendingness to correspondence written by a solicitor to an LIP. It’s something I try and nip in the bud straight away, as its often unnecessary and/or an attempt to try and intimidate.
Importantly, keep communications with a solicitor polite, concise, clear, straightforward, to the point – and in writing. If they do persist in any condescendingness or abrupt tones, you can bring it to the attention of the Court later down the line.
Solicitors acting for the other side should also not try to take advantage of you (the SRA has set out a clear warning on this), threaten you, or make demands from you they wouldn’t if you had legal representation. Generally, or at least hopefully, the solicitor is trying to do their job.
Correspondence
Solicitors will argue black is white, even when they know it’s not – so pleading your best case or sending evidence to them will be a pointless exercise (especially as they’re in effect operating a kangaroo court) – and you may well show your hand too early. You can of course (and should) set out your position to a solicitor in the form of a letter – but you don’t need to argue it like you would a court case.
I’ve been known to send solicitors letters that are 12 or even 15 pages long, when I really want them to know I’ve got them by the balls. I’ve also learned that keeping letters short, to even just a few sentences can also do the trick.
My general advice is any correspondence pre-action make as detailed as you can, so you can be clear about your case – as ultimately you’re setting out your position to avoid court proceedings. As I said above, you don’t need to send the evidence, but you can be detailed enough for them to understand your position and/or the case they have to meet. If or when proceedings are issued (and the clock is running) then, I’d keep the letters as short as physically possible. If detail is demanded, you should start to consider whether it’s necessary to send in correspondence, or whether doing so would be rehearsing any hearing or trial.
Be Tactical
If you find lies in the other sides’ evidence, there is no point in chasing after the other sides’ solicitors about it, when you can say nothing about it and point it out to the Court at a hearing or trial – when its too late for them to do anything about it.
Giving a solicitor a heads up on this kind of stuff will either (a) give your opponent the chance to start thinking ahead of how to answer their lies when challenged; or (b) give the solicitor the opportunity to advise their client to make changes to their evidence.
Likewise……if you’ve a REALLY KILLER BLOW, and it needs to be really killer – then you may want to give the solicitor the two barrels and demand things are settled in your favour…… Doing this is a highly tactical decision, full of risks, and can obviously go both ways!
Know the Rules
One advantage solicitors do have (as professionals) is an in-depth knowledge of ‘The Rules’; solicitors obviously use those rules if they see there is an advantage to doing so for their client, and it may not be taking advantage of you. Occasionally solicitors may try and bend the rules, or give the impression a rule applies when it doesn’t – but if they’re caught out, the Judge will correct them.
‘The Rules’ are public documents. Whether a Judge, solicitor or a LIP; everyone should be following the same rules – so make sure you read them and understand them, as they can come in very handy!
They’re not there to help you!
Whilst you may come across helpful solicitors, remember it is not their job to do your work for you or help you with your case – and fairly obviously they can’t. So, if you are required to provide the Court a document by Date X, make sure you’ve worked out well in advance (a) how to do it; and (b) how to get it there on time. Court staff can be very helpful at answering these kinds of questions – but bear in mind you could be on hold for a very long time on the phone, and they can often respond to emails very slowly, if at all. So make sure if you don’t know how to do something, you find out how to do it as quickly as possible.
There is no harm in asking other sides’ solicitor if they can point you in the right direction of how to get something to the Court – but don’t expect them to do it for you, and don’t ask them at the last minute……that’s classic tactic advantage you’re giving them them – as they don’t have to answer! If you’re dealing with solicitors in high-temperature litigation, or you’re making an Application, or something which is likely to put noses our of joint – forget asking the solicitor for any help!
Agree things!
It sounds a bit silly given that the other sides’ solicitor is paid to disagree with you, but there are plenty of things you can agree on.
For example, Hearing Bundles: What should be included? How should it be laid out? When should the parties agree to have all the material together? Who is going to prepare the draft bundle? When will the bundle be agreed? Who will send the bundle to the Court?
These are not things that need to be aggressively argued, but are things which are really easy to agree and show a collaborative approach and ‘team work’. That is what the Court likes to see.
I’ve experienced solicitors who “couldn’t possibly agree” to agree the basics, purely for the sake of wanting to show to their clients that they have the upper hand – in one case we couldn’t even agree a chronology because the other side wanted to place a partisan narrative in it; but that’s the kind of messing around Judges hate.
Parties who can’t agree the basics will inevitably face a rollocking from the Judge, and often the Court’s disapproval will be shown in the form of adverse costs against the side making the trouble. So be reasonable and agree what you can!
Solicitors who try it on
It’s inevitable that in your Litigant in Person journey, you may come across solicitors trying it on. Whether its aggressive correspondence, intimidatory threats, threats to get costs orders against you, telling you that your case or position is “bound to fail”, and so on. I’ve written a separate page on some of the nonsense that solicitors will try. But essentially, all of that is matter for the Court to decide if it gets that far – and as I’ve said above, solicitors will argue black is white.
Solicitors’s opinions and ‘judgements’ are irrelevant
There is a reason why the solicitor is not the Judge in the case – or most probably even a Judge at all!
Despite what they may sometimes like to think, another sides’ solicitor is not a Judge, their opinions are entirely irrelevant, and not helpful to anyone – other than perhaps their client.
So, when a solicitor proffers their opinion by way of letter or otherwise; it really means nothing other than wasting time, costs and causing agitation.
The bottom line?
- Do be polite
- Do be respectful
- Do be appropriate
- Do be reasonable
- Try and agree what you can
- Remember a solicitor is not always the enemy, and its worth creating a good relationship with them
- Remember a solicitor is not a Judge, and will form partisan views – often it can turn out to be wrong
- DON’T let solicitors take advantage of you or back you into a corner
- DON’T allow yourself to be bullied into agreeing things because of ‘adverse consequences’
If in doubt (a) get legal advice; and/or (b) let the Court sort it out!