Serena Williams is clearly a superior tennis player to most opponents she faces. The figure on the other side of the net does not have her quality, experience and mental strength. So is likely to lose more often than not.
Despite this disparity, we do not expect the umpire to give pointers to her opponent about how to play the match. We do not expect Williams to brief her rival with her game plan, to pause while she catches breath, or to provide a run-down of where the match was lost.
Williams is better equipped to win, and that’s sport. It’s also litigation - in a way.
In the court room, the parameters are a little different. Lawyers have extra duties to the court and to the rule of law.
But they also have clients with aspirations of succeeding, who have been prepared to pay for such an eventuality.
The creeping burden on lawyers - that they should pander to the other side when they are unrepresented - is putting them at a disadvantage, and compromising the duties they have to their client.
This week the Ministry of Justice indicated it would amend part 39 of the Civil Procedure Rules to introduce new duties for parties communicating with the court. They will be required to ensure that the other side is copied in to any such communications, and the court will be enabled to give directions to encourage the represented parties to co-operate in providing an informal record of the proceedings while awaiting the approved transcript.
In effect, lawyers must do LiPs’ homework for them, while at the same time convincing their own client this is not detrimental to their chances of winning the case.
Aside from the practical problems of making the ‘informal record’ accessible and easy to understand, and finding the right way to disclose it to the litigant in person, there is a principle at stake here. The fact that litigants in person are unrepresented is not the fault of the lawyer on the other side – and neither should it be a burden for them.
If the courts are so worried about LiPs being out the loop then let the judges supply them with information. Let’s see how long that duty lasts before the bench is banging on the door of the MoJ’s rulemakers. Perhaps the MoJ might also look at its own obligations to ensure access to justice.
It’s unfortunate that some opponents are stronger than others. But that’s life. It’s still not Serena Williams’ job to help her opponents win.