Litigating without speaking legalese: the case of unrepresented litigants in Hong Kong

Abstract

The increasing number of unrepresented litigants in various jurisdictions raises thequestion of what challenges these lay people face in their access to justice. This articleseeks to examine this by conducting a small ethnographic study and survey inHong Kong. Based on 6 hours of courtroom observation in two cases and 8 hoursof pre-trial, during trial and post-trial interview data obtained from 7 sessions, weshow that unrepresented litigants may find navigating difficult legal phrases, legalhomonymy, legal genre and linguistic repertoire in court particularly challenging.They also risk overestimating the merit of their case when they deploy lay strategies(i.e. a translation approach or a literal reading approach) to legal interpretationand case preparation. The survey results lend support to our ethnographic studyby revealing why unrepresented litigants seem to be ill-prepared for their cases inthe eyes of legal professionals. We conclude that unrepresented litigants face bothlinguistic and legal challenges during their participation in legal processes, andoften these challenges are intertwined. We therefore suggest that both linguisticaccommodation and legal assistance are essential to help unrepresented litigantsparticipate effectively in legal processes. This is especially important in the adversarialcourtrooms of common law jurisdictions, to ensure access to justice for thegeneral public.