Pass the bundle…

So, a few months ago there was a flurry of notices about the collection of bundles at the end of court hearings, with stern warnings about who would be reported to the ICO for GDPR breaches if the right person didn't take responsibility for the right bundle at the right time. Notices went up on court doors from HMCTS charmingly threatening to report advocates to the ICO for not taking away bundles. At the time I queried it via twitter (official designated route for all complaints these days) but then some other (I thought at the time, equally impenetrable) clariificatory guidance was issued and well, frankly, I was busy and life moved on.

I'm guessing I'm not the only one who decided life was too short.

However. Data protection IS important, and still about every other trial I conclude involves the same ill informed half hearted discussion between advocates and judge about what the latest guidance actually says, whether it is right and ultimately everyone decides to use common sense and take home their own bundles but not anybody else's.

I've been working up to writing a - mercifully short - blog post to clarify the clarification for some time, and have only been slowed down only by the existence of a lot of naked woodwork in my house. Which has needed to be painted. And which I have chosen to watch dry in preference to writing this scintillating piece of prose...

But right now, after a wild frenzy of gloss painting, this seems like a welcome break. Such is the razzamatazz of life as an almost almost 45 year old....

Right. Let's get to it. It's actually pretty simples (I think - don't take this as legal advice etc etc).

You need to read the Bar Council guidance issued in April here. Or, if you are the reckless sort, or just have a lot of wet paintwork to supervise urgently, you may read my precis of it here :

  • Look after and take home your own bundles. Your responsibility.
  • Don't take responsibility for the court's bundles (wtiness / judge bundles) unless you have specifically been authorised by the solicitor who produced them, Not your responsibility. But would become your uninsured risk...
  • If you've agreed to bring judge / witness bundles on the day of a hearing you may be stuck with carting em back. I suggest you don't agree to deliver bundles thus avoiding this issue (personally I think this is conduct of litigation but I know this is not a universally held view, but also it's a DP risk. And just generally NOT. YOUR. JOB. Even if there is some guidance somewhere saying it is...). Those of you who have mercifully gone paperless and require only a backpack containing an embarrassing number of apple devices will be able entirely legitimately to claim that you cannot deliver the bundle anyway *sorry face* because you have no room in your bag. Those of you who are almost almost 45** or *gasp* even more ancient, will be able to appreciate the benefits of NOT carting around other people's bundles. Your shoulders / back / knees will thank you...

So. It's simples really. When someone tries to foist their oh so heavy bundle upon you just say no thanks. I'm paper free! And leave that courtroom light as a feather!

And yes, it's slightly different I'm sure for those who are responsible for the conduct of the litigation and who have produced the wretched bundles. But I can only cram so much excitement into one blog post. Someone else can write about the position for solicitors....

** can you tell I have an impending birthday of doom...?

 

The sanctity of the advocates room

A twitter thread was kicked off by Jack Harrison yesterday, complaining about the encroachment into advocates rooms of guardians and social workers....

https://twitter.com/JackHarrison/status/1148523237518786566

My initial reaction was 'Hell yes! What Jack said!' until a moment later I realised I was privy to one such naughty huddle in Bristol only very recently...

in fact, it's not a new phenomenon, until the cafe franchise lapsed and the advocates dining room at Swindon Combined Court was converted into a court room, that was ALWAYS used for care conferences for years, notwithstanding the sign on the door reminding advocates that wasn't what it was for (the advocates room itself was never used for this). The problem is that there is often nowhere suitable to hold these highly confidential and often protracted but essential meetings. They are part of how care proceedings work and in care proceedings there are invariably four (or more) lawyers. In Swindon no confidentiality issues arose from the possibility of other lawyers earwigging, because once the dining room had four or five lawyers, a guardian and a social worker in them there was no room for anyone else to fit in.

Whilst I've clearly colluded in this heinous boundary transgression only recently, I should make clear that where there IS room for discussions outside or where there is a busy advocates room being used by other lawyers I certainly wouldn't invite a social worker or guardian into the advocates room and would probably object to them being allowed in too (or probably if it wasn't my case I would frown disapprovingly over the top of my sandwich to give a hint). (Also I didn't start it, Miss!)

My recent Bristol scenario arose where we were involved in protracted discussions over several days which legitimately required (at times) the involvement of the social worker and guardian. At one point we used the cafcass room, but at some point we ended up in the advocates room -  I think because we'd agreed to meet there after grabbing a sandwich, which most of us had brought back to eat in the advocates room anyway. I didn't really clock it as an issue at the time since there was really nobody else around and plenty of space for other lawyers who needed a quiet spot (we are blessed with a massive and pleasant advocates room at Bristol). Our discussions took place at quiet times when others were in court. But that did evolve somehow into an assumption that the guardian and social worker would then come in on other days and eat their lunch in the advocates room (not just for the meeting), which in hindsight was probably not on (I should say that even though my case was opposed to theirs, both guardian and social worker are perfectly pleasant and unobjectionable individuals, but I do recall thinking 'Oh right, this is happening every day now...'. There is a real tension here because the assertion by lawyers that they are somehow superior to other professionals involved in a case is a somewhat unattractive tendency. Sometimes that is a product of lawyers being pompous entitled gits, and sometimes it's just that other professionals treat all lawyers as having a superiority complex. But the fact is that whilst social workers and guardians are frequent visitors to court buildings, for lawyers the court is a home from home - our main place of work. So requests for a space we can 'call our own' is legitimate I think.

I should know really that advocates rooms are a touchy subject. Not least because I upset at least one lawyer when I popped into the Leeds advocates room one day in December last year to deposit my overnight bag whilst doing a spot of legal blogging. The idea that I had set foot in the advocates room and might have overheard private discussions when not there as a lawyer really got some people's backs up. The fact is that it had been empty and that I had taken a stroll to the advocates room to avoid overhearing the confidential case discussion that that been ongoing in the public waiting area is an irony not lost on me. These issues arise because there is often inadequate private space for conferences and meetings, and because lawyers are forced into conducting their discussions in quite inappropriate places - on the confidentiality front it is probably less awful to hold a discussion in the advocates room where other passing advocates might overhear, than in a public area where the public might do so, but of course neither is acceptable.

And in times of high work stress for all of us, even the grottiest, tiniest, stuffiest of advocates rooms is a sanctuary from the pressures of clients and judges, and a space to let off steam. As one lawyer suggests we should :

Explain that it’s not about snobbery/ranking. There are legitimate reasons that non-advocates should not be in there which include advocates leaving valuables/confidential files in the room & having a space to unwind/work out of the public eye or within hearing.

Jack suggests that there are 'sensitivities' that mean some are reluctant to upset the influential guardians who hold the key to instructions. I'd hope that is not really a factor, but I can certainly think of at least one advocates room in a small satellite court where guardians do often eat their lunch. But that is not a combined court and is therefore mostly family advocates all of whom work on the same cases day in and day out. And I guess if I'm honest I'd find it harder when a visiting lawyer to a 'foreign' court to object to an established practice that all the local lawyers seem content with. Indeed, reflecting on it now, it's never crossed my mind to do so - that's just 'the way they do it down there'. Though objectively they probably would be wise not to (and the alternative rooms in that court are in fairness particularly unattractive places to eat lunch).

Anyway, I'm grateful for Jack reminding us all that it is actually quite important to maintain those boundaries even if I don't know how it is always possible to square all the circles.

There is a section of the thread started by Jack where a couple of advocates complain about the involvement of guardians and social workers in advocates meetings at all - I am often the pedant reminding the lawyers who have assumed their social worker can join our advocates meeting that actually that isn't an advocates' meeting and that it should be all parties or none. That usually goes down like a cup of cold sick and everyone looks affronted and takes it as a personal criticism of the social worker or guardian in question. It isn't, of course. It's just basics - but in some areas (mine included) the participation of social workers and guardians is far more routine than it should be.

Personally, I don't have an issue with guardians and social workers being involved in advocates discussions at court where all lawyers have agreed and there is a purpose to doing so - it can for example often cut through things and avoid a lot of toing and froing to take instructions. But that has to be case specific and I will often say no when it is suggested, depending on where the interests of my client may lie.

It's so important to ensure that the client does not perceive that they have been unfairly cut out of the loop where other parties are not, or that things are not perceived to be too cosy. The reality is of course that often the professionals do all know each other and have more or less regular encounters. But our friendly professionalism can easily be misconstrued as chumminess and partiality (and occasionally that perception is justified). The key to it all is to be alert to how the client may feel or perceive things and to keep them informed about what you are doing and why at regular intervals. A good advocate will take their client 'with them' even though the client is not physically in the room.

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!