Leaving Emotion Out
Litigants in Person and Emotion in New Zealand Civil Courts
DOI:
https://doi.org/10.35295/osls.iisl/0000-0000-0000-1034Keywords:
Emotion, judging, litigants in person, self-represented litigants, civil justiceAbstract
Litigants in person (LiPs) receive the message that emotion should be “left out” of New Zealand courtrooms. This is a confusing and impossible goal. This paper draws on two empirical studies and argues that the exhortation to leave emotion out is multi-layered, referring to behaving and thinking like a lawyer, including a focus on the commercial or transactional elements of disputes, rather than on other aspects that are important to litigants. This is often not possible for LiPs and it can reduce their sense of procedural justice and result in the omission of legally relevant material. Judges can respond to LiPs who violate the emotion regime by allowing LiPs to explain aspects of the dispute that are salient to them. We need to consider how the civil courts can allow more space for litigants to tell stories, rather than focusing only on the commercial or transactional aspects of disputes.
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Bailey, M., and Knight, K.J., 2017. Writing Histories of Law and Emotion. The Journal of Legal History [online], 38(2), 117-129. Available from: https://doi.org/10.1080/01440365.2017.1336889 [Accessed 9 January 2019].
Bandes, S., and Blumenthal, J., 2012. Emotion and the Law. Annual Review of Law and Social Science [online], vol. 8, 161-181. Available from: https://doi.org/10.1146/annurev-lawsocsci-102811-173825 [Accessed 9 January 2019].
Bergman Blix, S., and Wettergren, Å., 2016. A Sociological Perspective on Emotions in the Judiciary. Emotion Review [online], 8(1), 32-37. Available from: https://doi.org/10.1177%2F1754073915601226 [Accessed 9 January 2019].
Bosma, A.K., 2018. Magistrates’ management of emotional victim narratives. Paper presented at the Judging, Emotion and Emotion Work workshop held at the Oñati International Institute for the Sociology of Law, May 2018.
Conley, J., and O’Barr, W., 1990. Rules Versus Relationships. University of Chicago Press.
Courts of New Zealand, 2016. Annual statistics for the District Courts [online]. Available from: https://www.courtsofnz.govt.nz/publications/annual-statistics/latest-december-2016/district-court [Accessed 9 January 2019].
Ellsworth, P., and Dougherty, A., 2016. Appraisals and Reappraisals in the Courtroom. Emotion Review [online], 8(1), 20-25. Available from: https://doi.org/10.1177/1754073915601227 [Accessed 9 January 2019].
Felstiner, W., Abel, R., and Sarat, A., 1980. The Emergence and Transformation of Disputes: Naming, Blaming, Claiming… Law & Society Review [online], 15(3/4), 631-654. Available from: https://doi.org/10.2307/3053505 [Accessed 9 January 2019].
Felstiner, W., and Sarat, A., 1986. Law and Strategy in the Divorce Lawyer's Office. Law & Society Review [online], 20(1), 93-134. Available from: https://doi.org/10.2307/3053414 [Accessed 9 January 2019].
Felstiner, W., and Sarat, A., 1992. Enactments of Power: Negotiating Reality and Responsibility in Lawyer-Client Interactions. Cornell Law Review [online], 77(6), 1447-1498. Available from: https://scholarship.law.cornell.edu/clr/vol77/iss6/7 [Accessed 9 January 2019].
Gendron, M., and Barrett, L.F., 2019. A Role for Emotional Granularity in Judging. Oñati Socio-Legal Series [online], 9(5-this issue). Available from: https://doi.org/10.35295/osls.iisl/0000-0000-0000-1087 [Accessed 12 November 2019].
Grossi, R., 2015. Understanding Law and Emotion. Emotion Review [online], 7(1), 55-60. Available from: https://doi.org/10.1177/1754073914545792 [Accessed 9 January 2019].
Hadfield, G., 2008. Framing the Choice Between Cash and the Courthouse: Experiences With the 9/11 Victim Compensation Fund. Law & Society Review [online], 42(3), 645-682. Available from: https://doi.org/10.1111/j.1540-5893.2008.00354.x [Accessed 9 January 2019].
Harris, L., 2002. The Emotional Labour of Barristers: An Exploration of Emotional Labour by Status Professionals. Journal of Management Studies [online], 39(4), 553-584. Available from: https://doi.org/10.1111/1467-6486.t01-1-00303 [Accessed 9 January 2019].
Henaghan, M., and Nicholson, M., 2014. Family Law. New Zealand Law Review, 2, 321.
Mack, K., and Roach Anleu, S., 2007. “Getting Through the List”: Judgecraft and Legitimacy in the Lower Courts. Social & Legal Studies [online], 16(3), 341-361. Available from: https://doi.org/10.1177/0964663907079763 [Accessed 9 January 2019].
Mack, K., and Roach Anleu, S., 2019. A Sociological Perspective on Emotion Work and Judging. Oñati Socio-Legal Series [online], 9(5-this issue). Available from: https://doi.org/10.35295/osls.iisl/0000-0000-0000-1032 [Accessed 16 April 2019].
Maroney, T., 2006. Law and Emotion: A Proposed Taxonomy of an Emerging Field. Law and Human Behavior [online], 30(2), 119-142. Available from: https://doi.org/10.1007/s10979-006-9029-9 [Accessed 9 January 2019].
Maroney, T., 2011. The Persistent Cultural Script of Judicial Dispassion. California Law Review [online], 99(2), 629-681. Available from: https://doi.org/10.15779/Z38K98M [Accessed 9 January 2019].
Maroney, T., 2016. A Field Evolves: Introduction to the Special Section on Law and Emotion. Emotion Review [online], 8(1), 3-7. Available from: https://doi.org/10.1177/1754073915601356 [Accessed 9 January 2019].
Mertz, E., 2007. The Language of Law School: Learning to “Think Like a Lawyer”. Oxford University Press.
Mulcahy, L., 2010. Legal Architecture: Justice, Due Process and the Place of Law. Hoboken, NJ: Taylor and Francis.
Relis, T., 2009. Perceptions in Litigation and Mediation: Lawyers, Defendants, Plaintiffs, and Gendered Parties. Cambridge University Press.
Roach Anleu, S., and Mack, K., 2005. Magistrates’ Everyday Work and Emotional Labour. Journal of Law and Society [online], 32(4), 590-614. https://doi.org/10.1111/j.1467-6478.2005.00339.x [Accessed 9 January 2019].
Roach Anleu, S., and Mack, K., 2013. Judicial Authority and Emotion Work. The Judicial Review, 11, 329.
Rock, P., 1993. The Social World of an English Crown Court: Witnesses and Professionals in the Crown Court Centre at Wood Green. Oxford: Clarendon Press.
Schnädelbach, S., 2019. The Voice is the Message: Court Rhetoric and Vocal Performance as Emotional Practices in Early Twentieth Century Germany. Oñati Socio-Legal Series [online], 9(5-this issue). Available from: https://doi.org/10.35295/osls.iisl/0000-0000-0000-1030 [Accessed 16 April 2019].
Seuffert, N., 1999. Domestic Violence, Discourses of Romantic Love, and Complex Personhood in the Law. Melbourne University Law Review [online], 23, 211. Available from: http://classic.austlii.edu.au/au/journals/MelbULawRw/1999/8.html [Accessed 9 January 2019].
Smail, D.L., 2003. The Consumption of Justice: Emotions, Publicity, and Legal Culture in Marseille 1264-1423. Ithaca, NY / London: Cornell University Press.
Sorabji, J., 2014. English Civil Justice after the Woolf and Jackson Reforms: A Critical Analysis. Cambridge University Press.
Tata, C., 2007. Sentencing as Craftwork and the Binary Epistemologies of the Discretionary Decision Process. Social & Legal Studies [online], 16(3), 425-447. https://doi.org/10.1177/0964663907079767 [Accessed 9 January 2019].
Toy-Cronin, B., 2016. I Ain’t No Fool: Deciding to Litigate in Person in the Civil Courts. New Zealand Law Review, 4, 723-754.
Toy-Cronin, B., et al., 2017. The Wheels of Justice: Understanding the Pace of Civil High Court Cases [online]. Project report. Available from: https://ourarchive.otago.ac.nz/bitstream/handle/10523/7762/Toy-Cronin%20et%20al%20Wheels%20of%20Justice-s.pdf [Accessed 9 January 2019].
Tyler, T., 2006. Why People Obey the Law. Revised edition with a new afterword by author. Princeton University Press.
Tyler, T., 2012. Justice Theory. In: P. Van Lange, A. Kruglanski and T. Higgins, eds., Handbook of Theories of Social Psychology (vol. 2). Thousand Oaks, CA: Sage, pp. 344-361.
Winkelmann, H., 2014. Access to Justice – Who Needs Lawyers? Otago Law Review [online], 13(2), 229. Available from: http://www.nzlii.org/nz/journals/OtaLawRw/2014/2.html [Accessed 9 January 2019].
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