A professional discourtesy

Feature Pic courtesy of by Salim Virji on flickr - thanks!

We lawyers are odd creatures, where superficially polite language can conceal the most cutting of understated insults. Viz, 'with respect' denotes anything but. Rarely does a lawyer engage in a direct insult or criticism. Such is the dance that we dance, out of respect for our colleagues, and in the knowledge that what we lawyers verbalise in court is sometimes eloquent but sometimes ridiculous and is always borne of a long process of analysis, advice and the giving of (sometimes ill advised) instructions. We lawyers therefore tend not to shoot the messenger - we have all been that messenger many, many times. Professional courtesy exists for good reason - if we cannot rely on high standards and good manners everything falls apart and chaos in the courtroom would descend. And generally, what goes on in the family justice world stays in the family justice world. Poor performance might make its way around the grapevine, but save in the case of a juicy appeal or a misconduct finding any sub-optimal advocacy goes below radar and does not reach the public gaze as it might with other professions, or even with other areas of legal practice. To a large extent all professionals operating within the family justice umbrella have come to rely upon the incidental protection that comes from the privacy that exists to protect the children involved. I include myself in that even though I advocate for greater transparency. In common with all my colleagues no matter how skilled they are, I have had many cringeworthy moments I'm quite glad the public don't get to scrutinise.

But the truth is that this week a transcript of a hearing has been published, which my journalist friend has criticised stridently - and whilst my defensive instincts are aroused to defend a colleague in circumstances where i know it may be more complicated than it appears at face value - I've struggled in reality to defend the words I've read in the transcript without descending to speculation about what might explain or mitigate the submissions made.

So I've thought a lot about this post before even typing the first letter.

I've given various iterations of a talk to a number of different audiences lately - about the legal blogging pilot and its potential to enhance the transparency of family courts (bear with me, it is relevant). One of the things I've touched upon in those talks is the potential barriers for bloggers who are part of the legal community (as the scheme requires), particularly those in practice, to write objectively about what they see when what they see is unimpressive, sloppy or bad practice by fellow lawyers, possibly even lawyers that the blogger knows. I haven't really encountered it wearing my legal bloggers hat yet, but am acutely conscious that at some point I will - and how then will I tackle it? A journalist may don their 'journalist' armour and say 'This is my job', just as I do when I have to ask questions I'd rather not ask of a witness I know will be upset by them: 'This is my job' I say, and crack on. But as a legal blogger I'm between two worlds - allowed in because of me lawyer credentials, and yet not really a journalist who can hide behind the public interest (or editorial demands). I can speak from experience when I say that the problem is only marginally less acute when the criticism is very mild and the lawyers in question are not known to me from encounters in practice (see here for example). Its #awks on a major scale. I've seen some low level not-brilliance, that I've pondered whether I should mention - and the brutal truth is that has been hard even to sketch in to a blog post with a light touch. I see my bias here.

And this transcript has brought home to me just how tricky this issue really is. Legal blogging is a valuable part of public legal education (or it will develop to be so if I have anything to do with it), but we must frankly acknowledge that it too has limitations, and that those who write as part of the legal community will be pulled hither and thither by their ethical (and maybe commercial) pressures in ways analogous to journalists. Legal blogging has never been presented as the whole solution to the information vaccuum or the problem of imbalance in reporting of family courts - but these emergent ethical dilemmas are topics we should acknowledge and discuss and work through if legal blogging is to have credibility and if it is to reach its potential. If and when I do encounter something less than fluffy and impressive I will have to wrestle with that conflict and decide whether I have a responsibility to say frankly what I've seen even if it is excruciatingly difficult and anathema to all my lawyer instincts to do so. Not looking forward to that.

Back to that transcript...

Louise Tickle is a journalist (disclosure - also a friend of mine, although one with whom I have had some robust exchanges about how to respond to the issues raised in this post). She has secured publication of the transcript of the first instance family court hearing at which a reporting restriction order was made, preventing Louise and others from reporting the contents of a publicly available Court of Appeal judgment. That order was successfully appealed by Louise and led to the issue of draft guidance by the President of the Family Division. The transcript sets out in all its raw messiness, the ins and outs of the hearing which led to her appeal. It does not make for happy reading.

Most advocates cringe at having to read a transcript of their cross examination. I have read several excruciating transcripts of my own efforts (there is never it seems a transcripts of my moments of genuis!), some revealing my use of much frowned on pompous and confusing tag questions (I was convinced I didn't use them), my imperfections and my stumbles. It is not a pleasant experience and hindsight is a wonderful thing. And, as Mr Justice Hayden has recently discovered, a clumsy phrase can be so easily taken out of context or made to look more solid and leaden in print than it was in real life. Journalists get proof read and edited to death - we lawyers are live performers and a transcript is brutal. I sympathise with any lawyer whose transcript of their less than glorious performance is published. Because it could be any one of us.  (I hope I wouldn't get caught out on this since I've written a flipping book about it, but goodness only knows I might get caught out on something else). There but for the grace of Bod go I etc...

Except. Louise's criticism of the standards of advocacy in this particular transcript are hard to challenge. The brutal truth is that, even though this application was on notice, no advocate assisted the judge by referring him to the relevant legal principles, test or caselaw - and some submissions appear to have been no more than riffing, explicitly being based as they were on 'no evidence'. This is objectively not good. And yet...even writing about this is profoundly uncomfortable, and the reason is because in truth all advocates know it could have been them. We've all had a bad hair day, or non-existent instructions, or ridiculous instructions - we've all had to make submissions based on nothing but thin (hot) air. We are used, at the family bar at least, to those bad hair days passing relatively unnoticed and, I suspect, it smarts all the more when they don't. I have appeared alongside at least one of the advocates in that case and it is very hard to write this post. I don't think they are bad lawyers but I do think that culturally we just don't treat issues of transparency with the seriousness they deserve and I'm afraid this is the result of a blasé attitude to transparency across our profession. That is the reason this transcript is such a car crash.  And that is the reason that Louise had to appeal. My criticism is not a criticism I level at any individual lawyer but at us all.

Via the Transparency Project I've been delivering workshop training to those lawyers who care to listen - I don't want family lawyers to be in this position : under the spotlight of uncomfortable scrutiny because they've come up short when responding to transparency issues. We can do better. But the truth is that people can't be bothered to attend these courses in any great numbers. That's really depressing. Because although our courts are never going to be routinely full of journalists or legal bloggers, they aren't going to go away - and although we may be unable to predict how transparency will progress, progress it will somehow. And for as long as family justice operates in private (in fact for as long as family justice takes away people's children) transparency will be an issue. And we all have a responsibility to grapple with it. And if you don't like that preachy argument, do it because you don't want to look like a muppet on that transcript that everyone is reading on twitter.

Here is my annoying preachy suggestion : Read the transcript. Then read Louise's blog post. Then ask yourself if she's wrong. And then book on the course next week.

 

Feature Pic courtesy of by Salim Virji on flickr - thanks!

Problem exists between chair and keyboard

Toshiyuki IMAI on Flickr

If you ever hear the IT support guys mention 'PEBCAK' you know it's time to brush up on your IT skills. My husband, charming soul that he is, often diagnoses PEBCAK. To be fair, he's usually right. But we all have our PEBCAK moments...

 

A little over a year ago I wrote a blog post about my first steps into paperless working (here : The digital revolution…rolling slowly towards us…). This month’s counsel magazine has a piece on that topic by Paul Hart, (How to e-work Pt 2) and reassuringly a few of the top tips are those which I too would share with others slightly further behind me on this steep learning curve. I thought I’d add my two pennorth to the mix – there have been some really useful discussions on twitter from time to time about these issues but they tend to get lost in the stream, so I thought it would be helpful to note down my top tips here, as a reference point for others – and if we’re lucky some others will add their own tips in comments.

 

I’m now working largely paperless, so much so that the last time I went to the chambers photocopier to print out a case summary for a judge I couldn’t remember my login. My suitcase corner in chambers is full of forlorn unloved suitcases and my shoulders are grateful that these days all they have to bear is a backpack with a laptop, an ipad and a change of shoes in it.

 

I use two devices : my ipad is for bundles, my laptop is for typing. On it I usually display my running note of a hearing and any cross examination / prep notes. On my macbook I’ve discovered the joys of the split screen function which saves you faffing around trying to move between overlapping windows – so I have one word doc on the left and one on the right. I have spent years without working out how to do this – it makes the visual experience so much clearer and less stressful. Here’s how you do it :

 

  • Open the two documents you want to work on.
  • In the top left corner of your word doc you should have a red, yellow and green circle. Click AND HOLD the green one to get the split screen function up – a half of your screen will go blue – drag the word doc into that half and then select the other word doc to fill the other half.
  • If you have your macbook set up like I do to move between desktops by putting your mouse into the screen corner (don’t ask me how to set this up or what its called, I can’t remember) you can move between the split screen and everything behind it e.g. your email. If it's a directions hearing and my use of the bundle is likely to be limited I might just have the bundle open in pdf expert in the background so I can refer to it if required – and I won’t bother opening my laptop.

 

I now don’t take blue books to court at all. I work entirely on word. One less thing to fit in the backpack and I no longer have to decipher my own handwriting. This of course is only really feasible if your typing is up to scratch, which fortunately mine is.

 

I sometimes keep an electronic post it note on my desktop to write down points that come up during evidence or submissions – so I remember for re-examination or to adjust my submissions / reply.

 

So, the laptop and the bundle. I’ve had a few moments of e-bundle-rage but the reality is these have largely been time consuming through a lack of familiarity and now I’ve got into the groove this stuff is no more irritating than constructing, paginating and updating our own paper bundles which we’ve all wasted many precious hours on through the years.

 

Because you have your notes open on another device you can have your bundle full screen. I have an ipad pro so its really no smaller than A4 if you stand your ipad in portrait mode.

 

Like the writer in counsel magazine I’ve found it works best when using a bundle of any appreciable size to separate out specific  sections into their own pdf, which you can call SECTION A etc. open up all the relvant sections before the hearing in separate sections, move them into the right order (might be section by section or it might be the two or three high use sections right next to each other) and you can switch seamlessly between them as required. The beauty of this is twofold :

 

  • If a witness is asked by your opponent to go to page C546 in the bundle, and you are working on a single pdf bundle - unless you have the sort of memory that tells you that C546 is the fifth page of the mother’s statement you are going to take a few seconds to get there and work out what the reference is about. If however you have section C separately you can simply type 546 in the page number box and bingo – you are there! At C546. Of course if some annoying person has added C524a to ao this will work less seamlessly but I recently dealt with this by marking the bookmarks on my section C with alternate numbers – so my index said M’s statement C546 (C556) to remind me I’d need to add 10 for all pages that followed the annoying insertion.
  • If you need to ask questions that require cross referencing between two sections – say a statement in section C and some primary materials in section M (or whatever) you can move between page C546 in one tab and page M54 in another without losing your place. If you were working on one bundle you’d have to keep typing in the page number to get back to C546 and then to M54 and then back.

 

An alternative is that you can also make hyperlinks between different bits of your bundle so you can move with one click from the assertion in the witness statement you want to undermine to the primary evidence that does the job (on a paper bundle I’d usually write ‘see M54’ on C546 and vice versa). I’ve found this a bit fiddly to set up and I have a tendency to click on the link when I didn’t mean to so I don’t find it particularly helpful. It also requires a particular sort of trial prep – unless it's ‘that sort of case’ this won’t be a time saver, just an irritant.

 

I’ve found the ipad pencil really helpful for marking up my bundle. Its particularly good where your pdf is texty (by which I mean not a flat image, a file where the computer recognizes the text as text) because it will draw you a nice neat highlighter line without squiggling all over the wrong bits.

 

Indexing – some bundles come with a clickable index already – we love those. Others don’t. If you don’t have an index I’d recommend building one. Again, its not much more time consuming than tabbing up a paper bundle with ‘M’s ws Apr 19’ etc – I usually also include the page no at the end of the description to help with navigation, so : ‘M W/S Apr 19 C51’. And then if you are working on a single file pdf and someone shouts C54 you can go to C51 and then swipe forward a few pages.

 

I’ve also found its better to have a nested index so that each section can be unfurled and furled. If you simply have a list of all references / index points for a whole bundle they will go off the bottom of the screen and you won’t be able to use the index to good effect. Keep all sections of the index furled save the one you are looking at and its much less unwieldy.

 

PDF expert and Adobe DC Pro both have a similar system for adding indexes / bookmarks and for nesting them. I won’t explain that here because I think its just easier to learn by trial and error. But essentially it behaves much like folders on any computer - you drag an item into the next level up to make it a ‘child’ of the main section. So drag ‘M W/S Apr 19 C51’ into ‘SECTION C’ so it all falls under that main heading.

 

Of course some bundles don’t even come in a single pdf file let alone have an index. I’ve recently received an massive bundle in the form of a series of pdfs scanned from a printed copy (and thus all slightly off horizontal), with each section broken down into separate pdfs of about 30 pages each : Section C page 1-30, Section C page 31-60 etc etc. This made me want to weep, but actually once I’d got into the swing of it I realized that Adobe DC Pro is actually quite good at combining files so you can stitch them into one. I relatively easily used the combine feature to join all of Section C together, all of Section D together etc. This meant that the pagination of the pdf for one section matched the pagination of that section (except for those bits with C543c type numbering). What then caused problems at trial was that one witness, phoning in from abroad, in response to my requests that she turn to page C543 would ask ‘Is that Section C part 1, Section C part 2 or Section C part 3?’ – and of course I had no clue… You can’t solve ‘em all.

 

The scan quality of that particular bundle was too poor to be able to run the pdf through the OCR tool on Adobe DC Pro but this is a really useful tool that I am waiting for a good chance to get to grips with. It is SO useful when working with a really unwieldy bundle, for example one with thousands of pages of case logs, to be able to do a keyword search on a pdf that is texty (though you do have to correct for misspelt names etc). If your bundle arrives in texty format it's a joy. If you can convert it then do. When someone says ‘where is the first reference to X’ or ‘where are the case logs from this date’ you will be able to go straight there. You can also grab and paste text into submissions or chronologies.

 

Extracting and sending individual pages is another useful feature. Often at court somebody says they are missing the last order or some recent disclosure. You can use pdf expert to select a subset of pages from your bundle and by clicking extract it will create a separate pdf which is just that bit. You can then email it to your colleague, or the judge etc for major brownie points.

 

I use mainly Pdf Expert which is reasonably cheap and works on both ipad and laptop, but have also recently purchased Adobe DC Pro which is a bit more pricy but others swear by it in particular for the OCR conversion tools. I’ve not yet fully tested that out and most of the other stuff (combining files and indexing for example) can be done on Pdf Expert too, although combining is a bit more intuitive on DC Pro. For viewing and working on pdfs on your ipad during hearings though Pdf Expert is the way to go.

 

Finally, I use Dropbox Business (not the free one) to share all my files between my various devices. Its important to make sure that you select make available offline or download for any file you are likely to be needing in court, just incase the internet goes down and it struggles to retrieve the file. And just as important to remove the downloaded file from your device once you are no longer needing it, for data protection purposes. Each case has a folder of its own, and I’m piloting a system where my clerks can deposit bundles and updates in the folder on receipt so they magically appear. Its memory hungry on my poor decrepit macbook, so I find its best to use the selective sync function to ensure that you are only syncing those folders which are really current with your device. I send most attendance notes by email, and of course those get stored in the folder too – where I’ve sent one in the body of an email rather than an attached word doc I simply save the email to my folder but rename it attendancenote050619.eml so I can locate it again if I ever need to refer back or send on to a colleague doing the return hearing.

 

I think that is most of my wisdom for the moment. I have a lot to learn – but looking back at last year's post I realise how much more adept at this I am than I was back then - it is definitely getting easier and after the first few trials I no longer take a paper copy as a security blanket in case I get in a flap with the IT and it really has become the normal way of working for me now.

 

Do let me know what tips you all have – I’ll either publish them as comments or just add them to the bottom of this post.

 

Feature pic : Toshiyuki IMAI on Flickr - thanks

Too boring even for you…

House rules by Kimberly.K on Flickr creative commons - thanks!

Nothing is too boring for a lawyer... we are language-geeks of the highest order who thrive on complexity. Family lawyers of course are a funny breed, we bury our law deep beneath human emotion and the messiness of dysfunctional and broken relationships, and thrive too on the complexity of humans.

Today the grown ups in Familoo Towers have taken 9 and 11 to task about kindness and the lack thereof on occasion as observed by us... We have four rules in our house (if only the FPR were so blessedly simple) :

  1. Have fun
  2. Work hard
  3. Try your best
  4. Be kind

Rule number four has been a challenge of late, with a few verbal sticks and stones being hurled and a few sullen faces being pointedly displayed. So one task on return from work today was to reinforce the central importance of kindness. Challenging 11 to think about how it would feel if he was on the receiving end seemed to register, but we will see. Kindness can be the hardest thing.

I reckon those four rules are a pretty good code to live by for grown ups too, including family lawyers. I've been working on number 1 this last week, not least because without a bit of number 1, number 3 is like spinning your bike pedals when the chain's fallen off. Life works when you apply all four rules in harmony.

Anyway, enough with the Zen rules of lawyer wellbeing and productivity maintenance...some of you I know think that me rabbiting on about transparency, or about journalists coming to court is not contributing to your fulfilment of any of the four rules - being neither fun nor helping you in any practical way with the working hard and doing your best bits. After all, the statistical probability of a journalist or a legal blogger turn up to one of your hearings is lower than my chances of winning Strictly. So who cares?

This, I fear, may explain in part why there are remaining places on the lawyers workshop I'm running in June on this very topic (for the Transparency Project, hosted by St John's Chambers and sponsored by Bloomsbury Professional Family Law). Not only are you thinking 'it won't happen to me', but 'it' (that transparency guff) just isn't a priority when you are busy, busy, busy and have to focus your CPD on stuff that crops up regularly. I get that.

Well, yes and no. Because the thing is, whilst journalists are never likely to be swarming around family courts in great numbers, they aren't going away either. And the President's recently announced transparency review may well mean in due course that the environment is more favourable to legal bloggers and journalists coming to court more often.

And because doing your best means that you are ready when the day unexpectedly comes for you to advise your client or make representations to the judge about that journalist or blogger and what they can and can't report. It doesn't come up often, but it's damned handy and reassuring to know where to go to refresh your knowledge on the day it does come and bite you on the butt-ocks.

The lawyers in the case I attended recently under the legal blogging pilot thought that their hearing was 'too boring' for me to attend! Ha! Challenge accepted... And indeed it wasn't too boring at all. It was fascinating - so much so that I made an on the spot application for reporting restrictions to be relaxed. You can read about that here : Legal blogging by consent, because the judge did give me permission to publish my account. As it happens limited input was required from lawyers because I explicitly wanted to work by consent, but that may not always be so - and the question is would you be ready for it if I popped up like an annoying bloggy geek at the back of your hearing undeterred by your protestations of boringness? Or if a journalist appeared and wanted to report even in the knowledge one party (maybe your client) objected? Or if your client wanted advice about going to the newspapers?

So, in summary you should book on this workshop for the following reasons :

  1. You will have fun*
  2. You already work hard but...
  3. this will help you do your best for your clients and avoid #awks
  4. You will hurt my feelz if you don't come. So be kind and book NOW!!!

Actually, in all seriousness I hope this workshop will fulfill rule 4 in a more meaningful way than that - as my cackhanded parenting lecture to 11 rather neatly illustrates, kindness comes from our ability to think about the feelings and perspectives of others. One of the more surprising things I have taken from my experiences attending hearings under the legal blogging pilot is just how much there is to be learnt from seeing things from a different perspective, and from listening to the sound of other people's voices for a change. You notice things at the back of court that lawyers facing the judge simply miss (judges don't miss it by the way). You come to understand a lot more about the invisible barriers for journalists that dis-incentivise them coming to court at all, let alone to ask for permission to see documents or report details of a hearing (all things which at least enable better, more accurate and more in depth reporting even if they do not guarantee it). We can grow as individuals if we do so and grow as professionals as well. I hope that the workshop will be both interesting to legal geeks, and to those who are thoughtful about the complexity of humans of all sorts and statuses.

Journalists and legal bloggers attending family courts –

A Workshop for lawyers

25 June 2019, Bristol

BE THERE OR BE A BIG BORING MEANIE!

 

*no refunds if you don't...

 

Feature pic : House rules by Kimberly.K on Flickr creative commons - thanks!