DIY justice: The surge of self-representation and its toll on the justice system

While the phenomenon is not entirely new, several legal professionals are seeing it accelerate to unprecedented heights, giving a lifeline to those who cannot afford lawyers while putting the justice system under strain.

What’s fuelling this wave of litigants going it alone?

The drivers behind this recent surge are varied, but one particularly striking catalyst, according to Michael Byrnes, partner at Swaab, is the growing number of people turning to AI as a substitute for lawyers, relying on these tools to obtain legal advice before deciding to pursue a claim.

“One recent catalyst is the rise of artificial intelligence. Many self-represented litigants use it as a substitute for lawyers – both in obtaining initial ‘advice’ or guidance as to the merits of a prospective claim, and then in initiating and conducting litigation,” Byrnes said.

“The initial guidance that is given is often overly simplistic or optimistic, leading people to initiate litigation in circumstances where a prudent lawyer would dissuade them from taking that course.”

Victoria-Jane Otavski, managing partner at BlackBay Lawyers, echoed this view, highlighting how AI and the internet have fundamentally reshaped how people approach legal disputes, granting them unprecedented access to information and a newfound confidence to manage cases on their own.

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“The main driver is, in my view, access to information and artificial intelligence. Litigants can now Google a court form, watch a YouTube video on how to file a claim, and access information sources that were traditionally only known to lawyers,” Otavski said.

“That has given a sense, sometimes a false sense, that they can manage the litigation themselves and thereby remove the need to fund legal representation.”

While more people are turning to Google and AI to handle basic litigation tasks, she stressed that these tools can never replicate a lawyer’s instinct, judgement, and on-the-spot decision making in the courtroom.

“The reality remains, however, that whilst Google, AI and other tools can help with basic things, they can’t replace a lawyer standing on their feet in court, knowing when to press a point or when to pull back, or adjusting strategy on the fly because the judge has signalled where they’re leaning,” Otavski said.

“That instinct, knowing how to respond in the moment and how to manage a hearing, is a fundamentally human skill which can’t be replicated by AI.”

While greater access to information and AI tools is making it easier for individuals to pursue legal matters without a lawyer, Michael Tiyce, principal at Tiyce & Lawyers, explained that the soaring cost of litigation remains the most powerful force driving more people to represent themselves.

“I think cost is usually the primary driver. Litigation is time-consuming and requires a full compliance with rules and directions, even more so at times than it could be,” Tiyce said.

Also fuelling the rise of self-represented litigants, Tiyce pointed to a growing scepticism towards professional expertise, observing that more people are increasingly confident they can navigate complex legal processes just as effectively without the guidance of a lawyer.

“Another driver is the more general scepticism about expertise, which is not confined to the legal profession – it is, for example, particularly prevalent in medicine,” Byrnes said.

“There is a self-belief among some people that they can do something as well as a trained professional, including conducting litigation on their own behalf.”

Empowerment or illusion?

The growing number of individuals choosing to represent themselves in legal disputes has ignited debate among legal professionals, who are divided over whether this trend truly expands access to justice or instead creates more challenges than benefits.

Tiyce issued a stark warning that self-represented litigants often create greater challenges for both themselves and the justice system, arguing that they lack the objectivity, independence, and courtroom know-how that a lawyer brings to the table.

“It definitely creates more challenges than benefits. One of the important features a legal practitioner should bring to a matter is objectivity and independence, and that also means independence of your client in the advice you give them,” Tiyce said.

“We are not your client’s mouthpiece but also an officer of the court, and that is not something that a self-represented litigant is, or understands.”

Recognising the financial pressures and complexities of litigation, Byrnes acknowledged that for many deserving litigants, self-representation is often the only realistic option when the high cost of legal services puts professional representation frustratingly out of reach.

“Access to legal representation can be challenging, particularly for worthy litigants with limited resources. Litigation is complex and labour-intensive, and so the costs of litigation conducted by lawyers can be prohibitive,” Byrnes said.

However, Byrnes painted a grimmer picture, warning that self-represented litigants often stumble through cases, and when tangled with the messy outputs of AI, they can bog down courts and derail the smooth flow of justice.

“That said, self-represented litigants often conduct litigation poorly (like any exercise in DIY) and can strain the resources of courts with claims of limited merit,” Byrnes said.

“This problem is compounded by AI and the ‘slop’ it often produces, which tends to be the enemy of the efficient conduct of matters.”

Otavski also acknowledged the double-edged nature of self-representation, noting that while no one should be excluded from the justice system, the reality of procedural rules and court complexities often makes navigating it far more challenging than it appears.

“In principle, I don’t think anyone should be locked out of the justice system because they can’t afford a lawyer. So to the extent that self-representation means people are actually getting their disputes heard rather than just giving up, that’s a good thing,” Otavski said.

“But the reality on the ground is much messier. Courts are procedural environments. There are rules of evidence, filing deadlines, interlocutory steps, and if you don’t know what you’re doing, you can seriously damage your own case before you even get to a hearing.”

Reflecting on her experience, Otavski warned that self-represented litigants can unknowingly jeopardise their cases, making missteps that may lead to serious or even catastrophic consequences.

“I’ve seen self-represented parties consent to orders they didn’t fully understand, miss limitation periods, or fail to put on evidence properly,” Otavski said.

“That’s not empowerment, but it’s people falling through the cracks with a sense of agency that doesn’t match the complexity of what they’re dealing with.

For better or for worse?

While many believe they are taking control by representing themselves, legal professionals caution that the reality of self-representation often falls far short of the promised autonomy and cost savings.

Acknowledging that some sharp and well-prepared self-represented litigants can succeed in smaller claims and tribunals, Otavski stressed that in superior courts, most struggle to present effective arguments and frequently overlook critical issues that can determine the outcome of a case.

“Worse off, in most cases. There are exceptions as I’ve seen sharp, well-prepared self-represented litigants who do a credible job, particularly in smaller claims or tribunal matters where the procedures are more forgiving,” Otavski said.

“But in superior courts, the gap is stark. They tend to run arguments that go nowhere, miss the issues that actually matter, and struggle with the procedural machinery that can make or break a case.”

She also highlighted the “irony” of self-representation, warning that it often backfires – dragging cases out, multiplying disputes, and exposing litigants to higher costs – while compounding stress in multiple ways as they struggle to manage the process alongside their personal lives.

“On costs, the irony is that self-representation often ends up being more expensive, not less. Matters drag on longer, interlocutory disputes multiply, and if you lose, you’re still exposed to an adverse costs order, except now you’ve also lost months or years of your life running the thing yourself,” Otavski said.

“The stress is enormous. Litigation is stressful enough with a lawyer managing it for you. Doing it alone, against a represented party, while trying to hold down a job and keep your family together. I don’t think people appreciate how grinding that is until they’re in the middle of it.”

Tiyce echoed that while stress is inevitable for any client facing a legal dispute, self-represented litigants experience an added burden, having to navigate complex rules and procedures without the guidance lawyers provide.

“I think all legal disputes are difficult for clients in terms of their stress levels, but self-represented parties have additional challenges trying to comply with rules and processes with which they are not familiar and which legal practitioners navigate on a daily basis,” Tiyce said.

Reflecting on that reality, he emphasised that seeking legal representation often delivers better outcomes for both parties and can resolve disputes far more quickly than when clients navigate the process on their own.

“In my experience, matters that are conducted by experienced family lawyers usually result in better outcomes for both parties,” Tiyce said.

“Obviously, that comes at a cost in terms of fees but can often mean that proceedings are resolved earlier than they might otherwise have been if the dispute had not been resolved at an early time.”

Tiyce also added that in conversations with self-represented litigants, they often describe the process as “highly stressful and unsettled and a diversion from their main role as a parent and earner”.

Impacts on courts and tribunals

Perhaps the most immediate impact of the rising number of self-represented litigants, as observed by legal professionals, is the mounting pressure it has placed on courts and tribunals.

Byrnes underscored the real-world impact of this trend, pointing to the Fair Work Commission as a striking example, now grappling with a surge in unfair dismissal and general protections claims.

“The most significant impact has been in the workloads of courts and tribunals,” Byrnes said.

“It has, for instance, become an acute issue in the Fair Work Commission, with a dramatic increase in the number of unfair dismissal and general protections claims, which has been attributed to self-represented litigants using AI.”

However, Byrnes stressed that the Fair Work Commission is far from the only tribunal grappling with this surge, highlighting how it has had to overhaul its processes for accepting and conciliating applications in response to the recent deluge of claims.

“The FWC has adopted reforms in the way in which it accepts and conciliates certain applications as a result to try and deal with the recent deluge. These reforms apply to all such claims. The FWC is by no means the only tribunal with this problem,” Byrnes said.

Otavski emphasised that the growing strain on courts is forcing judges and registrars to spend more time guiding self-represented parties – efforts that, while essential, divert attention from other cases and slow the system.

“Judges and registrars are spending significantly more time managing matters involving self-represented parties by explaining procedure, giving directions that would otherwise be unnecessary, and trying to ensure a fair hearing without crossing the line into advocacy,” Otavski said.

“That takes time away from other matters and slows the system.”

The consequences go beyond mere administrative adjustments, with Tiyce explaining that self-representation can cause significant delays in resolving matters, particularly when litigants struggle to meet procedural requirements.

“From my perspective, a delay in resolving matters caused by non-compliance. In some but limited matters that non-compliance has seemed quite deliberate would not be sustainable by a legal practitioner,” Tiyce said.

“Obviously, those delays also result in increased costs for the represented party. Without being critical of parties who do not have a choice but to self-represent, it can result in the further clogging of an already clogged system.”

The ripple effects also reach opposing lawyers, with Otavski highlighting the extra challenges practitioners face when dealing with parties who misunderstand their obligations, miscommunicate with court staff, or take professional feedback personally.

“For practitioners on the other side, it creates its own challenges, too. You’re dealing with someone who may not understand their disclosure obligations, writes in appropriately to the judge’s associate or takes everything personally,” Otavski said.

“It can enlarge the time spent on a matter, causing an increase in costs and the usual professional courtesies that make litigation manageable between lawyers simply don’t apply.”

Tackling the challenges

To address the rising tide of self-represented litigants and the mounting pressure on the legal system, it is paramount to tackle these challenges through a combination of increased funding, targeted support, and clearer procedural guidance.

There is a broad consensus among lawyers on the importance of properly funding legal aid and duty lawyer schemes, with Byrnes emphasising that doing so ensures those with limited means can effectively have their day in court.

“It is important that legal aid and duty lawyer schemes are properly funded and resourced so those without sufficient means but genuinely meritorious cases or defences are able to be effectively represented,” Byrnes said.

Tiyce echoed these concerns, warning that family law Legal Aid and duty lawyer schemes remain severely underfunded, and while streamlined procedures could help, even the most skilled lawyers can only do so much to prop up an overstretched system.

“Seriously though, Legal Aid, particularly in family law, remains massively underfunded and as excellent as our New South Wales Legal Aid family lawyers are, there really is only so much they can do to prop the system up,” Tiyce said.

“The same goes for duty lawyer schemes. Simpler and more streamlined procedural rules and processes would help, but as a family lawyer who has seen more than his fair share of changes to the Family Law Act over the last three decades, I would be loathed to suggest further changes.”

While funding remains a crucial issue, Otavski noted that significant increases are unlikely, and argued that the real difference in addressing self-represented litigants would come from placing duty lawyers at critical stages, where parties often jeopardise their own cases before even realising it.

“More legal aid funding would be lovely, but I’m not holding my breath,” Otavski said.

“What would actually move the needle is putting duty lawyers at the pinch points, such as the early directions hearings and interlocutory stages, where self-represented parties do the most damage to their own cases before they even realise it.”

In addition, Byrnes argued that courts and tribunals could significantly reduce the burden on self-represented litigants by simplifying arcane procedural rules and providing clear, accessible guidance, citing the Fair Work Commission’s benchbooks as a standout example.

“Courts and tribunals could assist by rationalising what are sometimes unnecessarily arcane and confusing procedural requirements,” Byrnes said.

“The target audience should not simply be assumed to be legal practitioners – court forms and relevant legal information should be made available in a manner that is, as far as possible, accessible and comprehensible to the general public.

“The benchbooks of the Fair Work Commission are an excellent example of this and serve as a model for other courts and tribunals.”