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Family analysis: Simon Heaney, managing director at Heaney Watson, takes a look at the practicalities of dealing with cases where the other party is a litigant in person or represented by a McKenzie friend.
How should a lawyer interact with a party assisted by a McKenzie friend or acting as a litigant in person?
I suppose the short answer to this is 'sensitively'. It is very easy to lose sight of the fact that, as a trained and practising lawyer, the court arena is familiar, the rules often second nature and of course there is the professional detachment from the case and its issues. Certainly for a litigant in person, the emotional involvement is often palpable, the surroundings daunting and the rules and procedures perplexing. This can result in a number of responses, ranging from defensiveness to hostility. It is not unusual for a litigant in person to see any approach by a lawyer as either intimidatory or certainly an inappropriate attempt to influence a case. Likewise a McKenzie friend may be more seasoned if they are appearing semi-professionally, but many are, in the traditional sense of the word, a friend or relative. While they may have less emotional investment, the procedure can still be overbearing. It is of course not the role as an opposing lawyer to fill in the gaps but certainly a raised awareness and appreciation is often needed.
To what extent should the McKenzie friend or litigant in person be treated as akin to a practising lawyer?
Ask any number of lawyers this and I suspect you will get a number of answers. What it does highlight though is the fact there is no clear set of rules for this. The Family Procedure Rules 2010, SI 2010/2955 are lagging behind the fact that litigants in person and McKenzie friends are more and more common. My personal view is that if a person is representing themselves, then the starting point should be that they are party to meetings, invitations, disclosure and suchlike. There are times when it is not
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