Self defence can cut the cost of legal fees

Soaring lawyers' bills are forcing more people to do it themselves when faced with a court appearance

(Alamy)

Over the last year there has been a surge in the number of people defending themselves in court. The main reason is that they simply cannot afford to pay the legal fees and fewer of them qualify for legal aid. So can people successfully represent themselves? And why exactly are they doing it?

Most of us are oblivious to the costs of going to law. It is only when the day comes that we need to use lawyers that we realise how expensive or difficult it can be. To solicitors a £500 bill is relatively small beer, but even that level of fee is a problem for many. Without the public really being aware of it, however, the state safety net of legal aid (introduced in the 1940s along with free health care and education) is being cut back. Many of us will be shocked if we do come to need legal advice and representation.

For instance, even in the last four months there has been another tightening of the legal aid rules which means that people who are acquitted on criminal charges can still walk away shouldering costs of thousands of pounds. The solicitor Jeanette Miller of Manchester-based Geoffrey Miller Solicitors is a specialist in defending motor claims, including drink driving, and says: "When people decide on whether to plead guilty or not guilty it is not about whether they are guilty or not guilty but on how deep their pockets are."

Defendants who secure an acquittal on such charges will usually get only a partial refund of legal fees they have paid, and could end up paying for well over £2,000 of the legal bill themselves. This system has been described as "unlawful and grossly unfair" by the Law Society, the solicitors' body, which is taking the Government to judicial review over the move.

The lack of funding for legal cases is causing problems in several different areas of the law. "Courts are seeing more people appearing in person," says Karen Mackay, chief executive of Resolution, the family lawyers' association. "But our courts aren't really geared to people representing themselves." And "Alan", a magistrate who wants to remain anonymous, says: "In the last year or so, it has been happening a lot more ... But I've not seen many, if any, defend themselves well."

Nevertheless, many of us probably harbour a feeling that, if push came to shove, we could put on a good show in court or in other legal proceedings – rather like Sherman McCoy of Tom Wolfe's The Bonfire of the Vanities. But it has to be remembered that while McCoy showed extraordinary flair and dedication, he still ended up penniless and awaiting a retrial.

One issue that people acting for themselves must deal with is the scorn of many in the legal profession. While it is possible to draw up your own simple will, for instance, will and probate lawyers say that lay people often make mistakes. "We hate it," says a property lawyer, describing his experiences of dealing with private individuals representing themselves. Some of this attitude may be down to prejudice but some of it relates to genuine problems.

When acting for themselves, people often confuse morality with the law. "They are often concerned about a perceived injustice," says Alan, who has frequently heard people plead not guilty because they felt they were justified in what they did – when, for instance, getting into a fight. In many such cases they should, instead, be pleading guilty and then explaining the mitigating circumstances. And if they do go on to defend such a case mistakenly they will lose the discount on sentence that comes from pleading not guilty.

Similarly, Elizabeth Wyatt, head of family law at the Birmingham-based solicitor Anthony Collins, has seen people defend a divorce petition because they disagreed with the claim that they did not give their spouse enough housekeeping money. "But that won't affect the financial outcome or arrangements regarding children," she says. In family law court cases – deciding issues on custody of the children – the involvement of a parent representing themselves can substantially extend the length of the hearing. She says: "Judges are finding their cases are taking much longer, three or four days rather than one."

The Yorkshire-based photographer Harry Barnes started off defending himself but ended up working with Jennifer Miller when he was accused of speeding last year. He was finally acquitted, but says: "The majority of people will not attempt to defend themselves. If they do, they will end up being found guilty. You would think it is fairly simple. But you have to prove you weren't speeding. The only way to win is to prove technical incompetence of the equipment." He spent the seven months before he got acquitted reading up about speed guns. "It was very stressful," he says. Paying a fine that probably would have been £300 in his situation and accepting some points on his licence would have cost him a lot less.

But for people who decide to represent themselves, there are many steps they can take to improve the experience and their chances. People pleading guilty at magistrates' courts can do well on the mitigation side, says Alan. He has seen cases in which people "are convincing and get across how they were feeling". In fact, he sometimes feels they were better than a barrister would have been. But he advises them: "Be brief ... Don't get too vehement about it." They should also try to seek legal advice. Magistrates' courts have a legal adviser who will talk to the self-represented just before the case starts. There is also a wealth of information on the internet.

Working in partnership with lawyers is an increasingly common route. "The most successful ones front it themselves but check it with a solicitor," says Elizabeth Wyatt of Anthony Collins on the family courts. In the area of house purchase, people doing their own conveyancing often get informal help from lawyers on the other side, even if it is given reluctantly. "We are doing twice as much work to guide them through and it's a worry," says senior conveyancer Jane Aves of the Derby-based solicitor Flint Bishop. Some courts offer free legal advice, "pro bono", on the doorstep but planning ahead is clearly better.

Many other organisations offer help – such as citizens advice bureaux or charities. And, in some cases, lawyers will provide their services on a "no win, no fee" basis but this tends to apply in specific areas only (such as personal injury) and claimants may still have to make some payments up front.

No one is expecting an increase in legal aid availability now, but some changes may have to be made to court procedure to cope with the implications of people representing themselves. "Maybe [family court] judges are going to have to be more interventionist at an earlier stage rather than allowing a lot of slack," says Elizabeth Wyatt. Legal fees can shoot up for people facing the self-represented. Not only can the hours in court more than double but people acting for themselves can ratchet up the pressure on opponents by, for instance, bombarding the other party with legal letters and emails. Even a short letter can take 20 minutes for a lawyer to answer – which means £30 a go at even relatively modest fee rates.

So the message for people who represent themselves has to be that while they can get by in some fairly straightforward situations, they will struggle in complicated cases or if the unexpected happens. Even the most talented people will be pushed. Jeanette Miller says: "Flair would only really be helpful if it is combined with knowledge."

A bar to action: The costs of going to court

If you plead guilty to a straightforward drink driving charge, Geoffrey Miller Solicitors will charge you a fixed fee of £1,762 (including VAT) for the legal work. For a not-guilty plea, fees are likely to start at £5,000-£7,000 but could be as much as £20,000. Cases typically last three months but have been known to last over two years.

Until October 2009, victorious defendants in motoring and other areas of criminal law could claim back nearly all (80 to 100 per cent) of their legal bills from the public purse. Since 31 October, however, that refund is capped at Legal Aid rates.

Jennifer Miller calculates that clients would, at best, get a refund of one-third of their costs at her firm. So on a £6,000 bill for legal fees they might have to pay £4,000 of it themselves.

Costs vary considerably from firm to firm, between legal sectors and by seniority of lawyer. On conveyancing, for instance, Flint Bishop charges a fixed fee of £599 (including VAT) on the purchase of a £200,000 house. In general, legal fees are higher in London but fees can easily be £300 an hour for experienced lawyers outside the capital.