Don’t panic – I’m back!

I know. It’s been weeks and weeks since I posted even the most banal of posts. I’ve got out of the rhythm.

But it wasn’t for a lack of ideas – I’m fizzing with ’em, I just haven’t found the time to formulate them and put finger to keypad…

The good news is that I’ve just published a post that had got stuck in the works, and hopefully normal service will now resume.

It is probably prudent to write myself a to do list to ensure I actually keep the promises I have made to myself. So, coming soon (forthwith indeed) will be posts on :

  • wellbeing
  • that case involving a bullying judge in a care case, overturned on appeal
  • the BSB’s new guidance on our use of social media

In the meantime you may feast upon my humblebrag :

This year I was a mite disappointed *dramatic sniff* to receive the decidedly underwhelming review in the Legal 500 that said no more than what areas of law I covered, without any actual attempt to give a view as to how well I did them. This seemed to be me to be a bit pointless – if I was good enough to be ‘ranked’ someone somewhere must have said something vaguely more useful than ‘is a lawyer in x field’… Indeed they had, but I suspect I was the victim of a spreadsheet mix up…

Anyway, after some therapeutic sharing on twitter with other underwhelmingly described lawyers (it turns out all the best of us have had this experience) I was surprised to be tweeted by the editor to tell me he’d tweaked my entry…(For the record no smarties were exchanged in return for this tweakage).


Anyhoo, my Legal 500 entry now says I am,

A highly competent barrister who works diligently and with determination to solve complex cases.

And Chambers and Partners say,

Lucy has an incredible memory for detail and is supportive to both client and solicitor through the process. She is involved in case managing and representing, and wades through vast tranches of material with ease.

I am amused by the idea of me ‘solving’ complex cases, like some sort of sleuth – I may trade in my wig for a deerstalker… and, in light of the imagery conjured up by the second quote (which I keep visualising as me literally wading through vast trenches of *material*) I may need to invest in some galoshes and a nose peg…

However, it’s probably all a bit too wordy for a good slogan, so I’m thinking of condensing these as follows :

Reed : Sifting that sh*t with a smile.

Who wouldn’t wanna hire me based on that strapline, right…? OK, maybe not…

Anyway, I think these reviews are worth a #humblebrag so I’ve paid my #humblebrag fine to Billable hour. And thanks to whoever was kind enough to speak kindly to Legal 500 / Chambers & Partners about my bog snorkelling skills.

Control in the courtroom

Observers and newbies are often surprised when they first see a domestic abuse fact finding hearing at just how murky, and how messy these allegations and counter allegations are to unpick. If you went by headlines in the media or by TV dramas, an abuser should be easy to spot, the answer will be clear cut and ‘the truth’ will out. The reality is more typically : trawling through a quagmire of social media and private messages, a jungle of allegations this way and that, stuff that happened years ago with no witnesses present – and often two parties who for various reasons don’t ‘perform’ in a way that meets the stereotypical assumptions about abuser and victim. There is rarely a perfect victim or an all out bad perp. More often things are not clear cut or obvious at all.

The messiness of real lives intertwined and torn is wearingly familiar to those of us who have experience over years and years of trying to help parents safely navigate these disputes. It’s rarely as clear cut as the headline or the pleaded assertion. It’s *always* complicated.

Sometimes one or both parties to dispute involving allegations of domestic abuse demonstrate marked controlling behaviour in the course of family court litigation, in the courtroom and in the witness box. Is that important? Well maybe. But it’s not always an easy route to the ‘right’ answer.

A family court judge often has to rely heavily on the presentation or demeanour of the parties. That’s all well and good, but who is to say that the presentation and demeanour of the parties isn’t affected by the circumstances they find themselves in – whether simply intimidated by the setting, accused of something they didn’t do, trying to make allegations in the face of plausible denial, or trying to pull the wool? Where they can, judges will look elsewhere for evidence to cross check against.

The adults that come before the court in these fact finding hearings in children matters are typically people who were in a relationship that involved enough commitment to conceive a child and to co-parent for some little while thereafter. People who are profoundly threatened by the breakdown of their relationship – whether that threat is felt as the fear of a mother whose identity and emotional wellbeing is bound up with her role as mother and primary caregiver who fears her child may be taken, or as the fear of a father that he will be excluded from the life of a child he loves dearly (or vice versa, or some other variation on these most typical tropes) – whatever the scenario people feel threatened, and frightened, and uncertain – and they feel profoundly that they are not in control of their life.

My experience demonstrates that most mothers, most fathers, most victims, most perpetrators and most of those accused of things they have not done – almost all of them feel disempowered, frightened and without an anchor. They all, to a piece, desperately need control – for victims of abuse it is so important to re-establish control over a life that had been terrorised and taken over, for perpetrators of abuse it is so important to re-establish that control, and even for the parent who finds him or herself unexpectedly single and trying to work out how their relationship with the child will be reconfigured – there is a need to establish some sort of direction over one’s life, some sort of framework, and yes, some sort of control over what on earth is going to happen. How on earth is a judge to work out which is which?

I see controlling behaviour all the time from all sorts of clients – be they female or male, primary carer or occasional parent. Parents who fear the loss or diminishment of their relationship with their child try desperately to establish some sort of control over what is going to happen next and over how things are going to work. The litigation process (and sometimes the advice received along the way) propels people into assertive behaviour that might not be typical either of the relationship dynamics or of the person in general.

This much is human nature. Whether what we see following the end of a relationship is indicative of a tendency towards abuse through controlling behaviour in the course of a relationship is really difficult to establish. Sometimes it may be. Other times it may simply be a function of a recently separated parent desperately trying to re-establish some modicum of control over their life at a particularly challenging time, and a recognition of the potential long term impact of post separation arrangements for children upon their longer term relationship with both of their parents.

Sometimes the way a parent behaves as litigant is a good reflection of the person they are. But it is foolish to jump to conclusions without considering the wider canvas.


The above post has been sat for some time in the drafts folder on Pink Tape, where I had left it to percolate for a while, unsure how to finish it.

A recent blog post on the Civil Litigation Blog about trial procedure and why it matters provides the answer :

WHY PROCEDURAL RULES ARE IMPORTANT (AND LEAD TO SUBSTANTIVE JUSTICE): “JUDGES ARE NOT SUPERHUMAN, AND DO NOT POSSESS SUPERNATURAL POWERS”.

The post is about a civil case involving wealthy Russians and allegedly dodgy loan agreements, but the points made apply as much to any family dispute. What follows are extracts from the judgment, which the judge directs to Russians, who he seems to think are unlikely to appreciate how things work over here. The more I do this job though, the more I realise that these things are not well understood by the public in general, whatever their nationality or first language. I think they need to be spelt out because judges are not always performing the task people think they are performing. Judges are not magic. Court orders are not incantations.

“I should say something about how English judges in civil cases decide cases of this kind. This is particularly important in a case such as this, where the parties are Russian. They may not understand how our system works. First of all, judges are not superhuman, and do not possess supernatural powers that enable them to divine when someone is not telling the truth. Instead they look carefully at all the oral and written material presented, with the benefit of forensic analysis (including cross-examination of oral witnesses), and the arguments made, to them, and then make up their minds. But there are certain important procedural rules which govern their decision-making, some of which I shall briefly mention here.

The burden of proof

The first is the question of the burden of proof. Where there is an issue in dispute between the parties in a civil case, one party or the other will bear the burden of proving it. On most of the issues in this case, that is the claimant. 

The significance of who bears the burden of proof in civil litigation is this. If the person who bears the burden of proof of a particular matter satisfies the court, after considering the material that has been placed before the court, that something happened, then, for the purposes of deciding the case, it did happen. But if that person does not so satisfy the court, then for present purposes it did not happen.

The standard of proof

Secondly, the standard of proof in a civil case is very different from that in a criminal case. In a civil case it is merely the balance of probabilities. This means that, if the judge considers that a thing is more likely to have happened than not, then for the purposes of the decision it did happen. If on the other hand the judge considers that the likelihood of a thing’s having happened does not exceed 50%, then for the purposes of the decision it did not happen. It is not necessary for the court to go further than this.

Failure to call evidence

Thirdly, where a party could give or call relevant evidence on an important point without apparent difficulty, a failure to do so may in some circumstances entitle the Court to draw an inference adverse to that party, sufficient to strengthen evidence adduced by the other party or weaken evidence given by the party so failing.

Reasons for judgment

Fourthly, a court must give reasons for its decisions. But judges are not obliged to deal in their judgments with every single point that is argued, or every piece of evidence tendered. Moreover, it must be borne in mind that specific findings of fact by a judge are inherently an incomplete statement of the impression which was made upon that judge by the primary evidence. Expressed findings are always surrounded by a penumbra of imprecision which may still play an important part in the judge’s overall evaluation.

Overall

So decisions made by English civil judges are not necessarily the objective truth of the matter. Instead, they are the judge’s own assessment of the most likely facts based on the materials which the parties have chosen to place before the court, taking into account to some extent also what the court considers that they should have been able to put before the court but chose not to. And, whilst judges give their reasons for their decisions, they cannot and do not explain every little detail or respond to every point made.

In cases where witnesses give evidence as to what happened based on their memories, which may be faulty, English judges nowadays often prefer to rely on the documents in the case, as being more objective. 

So there we have it. Judges are not superhuman. Those who demand that they should magically find out the objective truth as they see it may be disappointed. They do their best with the information available – but real lives and relationships are messy and subjective, rarely reliably captured in objective contemporaneous records, and often reimagined or reinterpreted (for entirely understandable reasons) by those who have lived them.

Controlling behaviour as observed in the courtroom is going to be one piece of the jigsaw, and whilst sometimes it is marked and telling – other times though it is indistinguishable from a side effect of the litigation and the trial process and the judge may need to look elsewhere to try and work out what has really gone on in the past and hopefully therefore how the parties are likely to behave to one another (and the children) once the trial process has concluded. In cases where there have been physical injuries or incidents observed and recorded by third parties the judge’s task may be easier – where the only allegations are of controlling behaviour the task is very much harder because of the absence of objective evidence and the difficulties in interpreting what unfolds in the courtroom.

Unspoken rules

Pink Tape

This weekend on twitter, Rhys Taylor sparked a discussion about the rules that barristers are supposed to adhere to, and how they have changed. Many chipped in (too many to mention), and I said I’d write a post gathering all those rules together – the quirky, the defunct and the downright bonkers – for the benefit of newbies. As I’m about to be a pupil supervisor for the first time (yikes, poor thing) I thought it would be an excellent way of getting other people to do my homework for me. Oh how wrong I was…I’m now just very confused…

However, I happen to need a distraction from other things I really should be doing, so here goes.

You can read some of the tweets here :

and also on the original thread from Rhys that kicked it off :

Perplexingly, what emerged most clearly was that nobody really knows what the rules are. Whilst there is lots of commonality in terms of what people *think* the rules cover, the details are full of inconsistencies both in terms of what specifically the rules require or prohibit and in terms of how closely they are followed and enforced. Indeed many mentioned rules that they or others never follow at all (though they might have done in the past).

It seems that whilst some were explicitly told ‘Never do x’ or ‘Always do y’ as a pupil, in many cases a ‘rule’ has been picked up by osmosis – and so inevitably without a proper understanding of the purpose or context of a verbalised rule, an observed behaviour is interpreted and aped differently, and is in turn observed and copied – and metamorphasises over time and across circuit boundaries. This is a product of the way pupillage has historically been somewhat unstructured / lightly regulated.

Not only does nobody able to clearly state or agree on the rules, but most of them aren’t followed religiously (or even consistently) anyway. 90% of them seem redundant or pointlessly archaic – though many do no harm – but just a few of them are actually more important than they may seem. The trick is to work out which ones matter.

So MY first suggestion to those starting out on a career at the bar is : don’t get too het up about stupid rules (apart from professional conduct / ethics rules obviously – please do take those seriously. I’m talking here about the idiosyncratic mannerisms of the bar that are supposed to mark us out as professionals and as gentlemen (haha)). Follow them if you can – whilst still junior at any rate – later on you can make a judgment call about which ones really matter. And take the opportunity to ask about why they exist whilst you are still green enough for it not to be embarrassing to do so. Later you can gradually shed them (or not) according to your judgment and preference, and when you are less vulnerable.

Although this weekends tweets amply demonstrated that anyone attempting to catalogue all these rules is a fool, here is my attempt to summarise the wisdom of the legal twitter hive mind :

  • Dress yourself properly
    • apparently brown shoes = solicitor so are a big no no (some might say they are a big no no anyway),
    • ditto brown suits (I was going to ask who the HECK wears a brown suit but then remembered that as a very junior barrister I bought a designer brown suit with tiny pink polkadots. I wore it once to some South London court for an emergency hearing before deciding there MUST be a rule against it and ditching it. My gut feeling was right, it was totally inappropriate (although way cool).
    • coloured shirts are out and its white shirts only (either whilst a pupil, for the first five years or EVER, depending on who you ask). Don’t ask me for advice on this I gave up shirts in favour of white tshirts a decade ago when I developed an allergy to ironing and now I’ve given up tshirts altogether as I’ve discovered the joys of a wardrobe full of black dresses and black jackets.
    • lots of women had been told all sorts of things about how they should dress and present their hair (tied back). Comments were not just about the trouser / skirt debate, but also about the appropriateness of jewellery, lipstick, nail polish, flesh coloured tights. Personally, I think we can boil this all down to a single common sense rule for both men and women – dress like you have a serious job and not like you are going out clubbing. Don’t wear suits with pink polka dots on them.
    • Talk about the solicitor’s triangle relates to a time when you could tell the difference between a solicitor and a barrister by whether or not they were wearing a three piece / double breasted suit or not (apparently – yawn) – and is not depilatory guidance.
  • Dress the court
    • Everyone agrees it you should definitely do it, but oddly there is no consensus on what it actually means. It might be the name for the rule that you should always make sure that at least one advocate is standing to receive the judge’s comments. Or it might be one of the rules about what happens at the end of the hearing – exit with a bow and backwards so you don’t turn your back on the judge, don’t leave one advocate or party in court alone with the judge, don’t leave the judge in court alone (unless released).
    • Whatever the correct name for this little bundle of behaviours – these are important in my book. I always do them and you should too. They protect judges and advocates from accusations of nobbling, they ensure a respectful, orderly court process and promote good communication.
  • Don’t undress in the wrong places and do undress in the right places
    • there are times and places for bands and robes, you generally shouldn’t wear them out and about, and there is much confusion about who can run across the strand to pret with their tabs a-flying. It might be nobody, it might be only people running back to Lincoln’s Inn, it might be ok on the third day after a spring tide. Who knows? Not I. Also apparently you shouldn’t wear your wig to a fancy dress party cos that’s touting. I’m not sure how getting smashed with your mates whilst wearing a ridiculous wig is likely to drum up business but there we are.
    • Rules about what buttons to do up when seem to be dead ducks
    • Also, apparently you should never take your jacket off except when you are in the shower or in the second stage of labour or something. Less strict interpretations of this rule were – never in front of a solicitor / lay client (including in the pub), never in the court building. The main thing is DEFINITELY never take your jacket off in court unless specifically invited to by the judge (only happens if the air con is broken and at least three people have already fainted).
  • Sit in the right place and stand at the right time –
    • Don’t worry it turns out nobody knows where the hell they should sit either. Turns out everyone has a different rule – I have always found the mediocre bellringer’s approach very effective (wait and see where everyone else goes and fill the gap). But if you want a clear cut rule you can pick from any of the following – Applicant on the left (or right), Applicant on the Judge’s left (or right), Applicant nearest the witness box…or door… or window…or it depends on the court (applicant on the left in Bristol and on the right in Plymouth). If it helps, one judge tweeted that he doesn’t know either. Oh, also you should ask permission if you want your client to sit beside you.
    • As for standing or sitting – there seems to be some confusion over when you advocates should stand when addressing the judge and when they may sit. I think its pretty straightforward – sit if its DJ or magistrates*, stand for anything else.
    • As long as you stand when the judge comes in and when the judge stands up you’ll be fine. Unless it’s a standing hearing and you have to go first, cos then you can’t cheat and check what your opponent does before its your turn. If in doubt do it standing up.
    • *Update : I’m reminded that you only sit for magistrates in the FAMILY court! 
  • Don’t touch other people – Barristers traditionally don’t shake hands. But actually it seems quite a few of us do, just because we’ve been told not to (lawyer radicalism in action there). Personally, my rule is if someone offers to shake your hand, shake it back and don’t be an rude.
  • Don’t let anyone see your bag – everyone agrees the rule used to be (maybe still is) that counsel don’t bring their bags into court. But also everyone agrees that GDPR has done that one in – people are rightly cautious about leaving bags unattended, even in the advocates room these days. And you can’t leave a suitcase unattended in a conference room for fear of sparking a security alert. So, bags in court is pretty normal these days, even if some still go all twitchy about it. However the vibe is definitely that its still bad form to put your bag on the desk or even the chair (oops I might do the chair thing sometimes, I will have to stop) and not a good look to bring your coat into court. Someone on the thread said that there used to be a no briefcase rule, and when I started out in 2002 trolley suitcases were frowned on. Now all the frowners are too busy at the chiropractor to care and we all pull suitcases or (if we’re paperless) carry backpacks rather than over the shoulder bags.
  • Use the lectern at your peril… The rule is apparently that juniors must never use the lecterns, which are reserved for silks. There were very mixed responses on this one when it came up a few months ago. Suffice to say there are enough very important silks who care about this to make it a dangerous pursuit in some courts! It seems to depend very much on local practice and may depend on whether or not there is a self important silk in your case or not. There are definitely juniors who use them and one line of thinking is that lecterns or stands of some sort are more commonplace now many of us work from laptops, so this rule may be breaking down – but it isn’t quite dead yet. I’ve got my own laptop stand so I won’t be testing this out any time soon!

There are loads more that came up most of which are daft and defunct (eg no conferences in solicitors offices).

But the best one of all is from Francis Fitzgibbon :

So that is my second tip for you : Follow that one and you’ll be right.

Oh, and thirdly – don’t read this blog post while in court. That’s VERY bad manners.