How Does A Self-Represented Person Act in Proceedings in New Zealand?

Answer: When a party encounters a legal dispute and must litigate in New Zealand, the best option is, of course, to engage a lawyer (including a legal aid lawyer; see “Legal Issues of Legal Aid”) to represent you. However, parties often have to handle the proceedings themselves because they lack the financial means and also do not meet the legal aid criteria, or the dispute resolution body does not allow lawyers to participate (such as the Disputes Tribunal or the Employment Relations Authority). Therefore, it is of significant importance for parties to have the essential knowledge and skills for legal proceedings.

The knowledge and skills for legal proceedings comprise two aspects. The first is the substantive legal issues of the case.

Substantive legal issues refer to the most important legal issues in the eyes of the adjudicator in litigation cases, for example, whether an insurance company’s reason for declining a customer’s claim is legally valid, or which will of the testator is the valid will, or whether the employer’s dismissal of the employee constitutes a justified dismissal. These legal issues are the core issues of the litigation and determine the outcome. Parties should concentrate their efforts on these issues, gather evidence, draft statements of claim or statements of defence, and prove their views on these issues during the hearing in order to obtain the most favourable adjudication result.

The most common mistake a self-represented person may make is that they ignore these substantive legal issues (even when reminded by the adjudicator) and become fixated on and entangled in the other party’s erroneous words or behaviour, resulting in a mistaken focus on irrelevant minor details, overloading the adjudicator with excessive and redundant information, failing to effectively argue the key substantive legal issues, or allowing such redundant information to bury the relevant effective arguments, thereby harming their litigation outcome. The most troublesome situation for adjudicators is self-represented parties arguing angrily over unnecessary minor issues during the hearing.

Therefore, the first question a party should ask themselves in litigation is: “What are the key legal issues for me to win the case?”, and carefully listen to the adjudicator’s directions during the proceedings, especially the main issues summarised by the adjudicator; sometimes a party may also identify the key legal issues from the other party lawyer’s written documents (such as the statement of claim or statement of defence) or oral submissions. If a party wants to obtain the best litigation result, they must focus on these substantive legal issues.

Although parties lack legal research skills, once the key legal issues are identified, they may still use Google to search for those issues. There are often legal research or practice articles written by lawyers online, as well as news reports on judicial judgments, from which certain information may be obtained; however, parties should note that litigation outcomes are highly fact-specific, and such searches can serve as a reference only. Parties may also use free legal consultation provided by local Community Law Centres (Community Law) and Citizens Advice Bureau (CAB) to obtain free legal opinions from lawyers.

When drafting the statement of claim or statement of defence, parties may first check the Ministry of Justice website to see whether there are templates for these documents, or search online for samples applicable to the relevant dispute resolution body. Using such templates and samples can make your documents more standardised. When drafting these documents, you must continue to focus on the key legal issues mentioned above.

The most common mistakes or shortcomings of parties when drafting such statements of claim or defence are the unclear and unsystematic articulation of the key legal issues, especially failing to highlight the key issues and unnecessarily repeating specific views, which undermines the persuasiveness of the document. Before drafting, parties should ask themselves: What are the key legal issues? What arguments support my view on each issue? What supporting points and evidence fall under each argument? In other words, parties should draft documents using a tree-like structure.

For example, an insurance company requires the insured person applying for a personal insurance claim to undergo a medical assessment, but the assessment method may cause health harm to insured persons with special medical conditions. The insured person requests to negotiate the assessment method with the insurer, and the insurer therefore refuses the claim on the grounds that the insured person disagreed to undergo the medical assessment. The tree-like structure of the insured person’s statement of claim may be developed as follows:

From the above tree structure, it can be seen that if the insured person wants the insurer to reconsider the claim application, they must demonstrate both the unreasonableness of the insurer’s conduct in arranging the medical assessment and the reasonableness of the insured person’s request to negotiate the assessment method. For the former, the insured person should focus on three issues: that the insurer’s request for a psychiatric assessment is unreasonable, that the medical assessment arranged by the insurer should be low-risk, and that the insurer should consider the possibility of assessing based on existing information; for the latter, the insured person may focus on four issues: proving their medical condition and the harm caused by past medical assessments, evidence of the harm medical assessments pose to patients with such medical conditions, patients’ rights during medical assessment, and the insured person’s reasonable attitude during negotiations over medical assessment (for example, allowing the insurer to obtain their medical records).

We know that establishing and articulating such a logical structure is highly challenging, and this structure is only preliminary. As the party gains more understanding of the facts and the law, the structure may change. However, the ultimate purpose remains to prove the core objective on the main trunk: “The insurer should rearrange the medical assessment and reconsider the insurance claim application.” The complexity of legal logic means that even many lawyers may not always be able to think precisely and express clearly, but parties must understand that the strongest legal documents must present a logical structure with highlighted priorities and clear hierarchy, so that the adjudicator can clearly understand their core viewpoints and respond to them. Otherwise, the adjudicator may not respond to your key opinions because they are buried in a large amount of repetitive and unclear content, which the adjudicator, with limited time and energy, may fail to notice.

The second aspect is procedural issues of litigation. Parties should understand and master the following procedural matters: whom the plaintiff should sue, how to serve the statement of claim, whether the plaintiff has exceeded the statute of limitations for filing, which dispute resolution body the claim should be filed with, how to collect and adduce evidence, and how to conduct the hearing.

We focus on two issues here. The first is how parties should adduce evidence. Evidence is like the leaves on the tree structure mentioned above; its purpose is to support each branch of the tree. Therefore, parties must carefully consider the seven focal legal issues mentioned earlier and consider what evidence can support their viewpoints on each issue.

For example, to prove the earlier focal issue of “evidence of the harmfulness of medical assessments to such patients”, you may consult relevant medical professionals, search medical research papers, and obtain doctors’ professional opinions. Parties should note that when collecting evidence, they must focus on this focal issue. If, in the process of collecting evidence, you discover evidence relating to other focal issues, then classify the explanation of that evidence under the relevant focal issue rather than mixing them together here. This is the key to maintaining logical coherence and structural clarity in your arguments, thereby effectively persuading the adjudicator to support your views.

When collecting evidence for this focal issue, parties may also consider what the opposing party’s viewpoints may be and collect evidence to rebut the opposing party’s arguments at the same time.

The second is how parties should conduct themselves at the hearing. Parties must understand the fundamental purpose and general process of a hearing. Generally speaking, regardless of the type of hearing—for example, the Disputes Tribunal, the Employment Relations Authority, various specialist arbitration bodies, or the courts—the purpose of the judge or arbitrator is to ascertain the plaintiff’s claim and reasons and the defendant’s rebuttal and reasons. Both parties argue the relevant facts and law around these issues, which are the legal focal issues mentioned earlier.

Therefore, your main purpose in attending the hearing is to explain how your evidence supports your views on these legal focal issues and to rebut the evidence and legal arguments presented by the other party, so that the adjudicator will support your claim. In order to ascertain these facts and laws, the adjudicator will usually identify certain key issues during the hearing, including whether certain facts exist and which party’s viewpoint is correct. Both parties will speak in turn to express their views. The adjudicator will also ask each party questions about matters they have not explained clearly or have overlooked, and allow both parties to emphasise their viewpoints during closing submissions.

Parties should avoid the following behaviour during the hearing: first, avoid emotional outbursts and angry arguments. A party’s anger in court is understandable, but you must understand that the adjudicator’s purpose in conducting the hearing is to ascertain the relevant facts and laws in accordance with the reasoning above. If a party shouts or argues aggressively in court or even engages in personal attacks on the other party, this will undermine that purpose. The adjudicator can only decide the case based on the facts, not the parties’ emotions. Naturally, the adjudicator will develop an extremely negative impression of the party who behaves disruptively, and the outcome is likely to be unfavourable to that party.

Second, avoid opposing every point raised by the other party. A common behaviour of parties in litigation hearings is that, due to emotional agitation and combative motivations in the litigation environment, they strongly oppose all the facts and laws expressed by the other party. This first creates a very negative impression on the adjudicator of being unreasonable and argumentative; secondly, opposing facts and viewpoints that are actually favourable to you will directly disadvantage your own case.

Third, avoid expressing irrelevant facts during the hearing. The purpose of the hearing is to ascertain the facts and laws related to your claims. Lengthy statements of irrelevant matters will only cause the hearing to deviate from its purpose, and the adjudicator will be displeased. At the same time, boundless statements may lead to misstatements of facts, allowing the opposing lawyer to seize on vulnerabilities and present views unfavourable to you. Parties must understand that litigation is long and contentious, but the outcome of the case is often determined by one or two issues; do not assume that the more you say, the more advantageous it is to you.