Please and thank you

I first published The Family Court without a Lawyer in 2011. Since then I’ve always had a trickle of requests for help of one sort or another, sometimes in the shape of a proper direct access enquiry, and sometimes in the form of a desperate sounding late night facebook message, tweet, or email. That trickle seems to have grown into a white water rapid lately and my clerks get an increasing number of phonecalls and emails. I’m not sure if this is something to do with the way web presence leaps exponentially sometimes when you get mentioned in some interwebby hot spot or other or do something that inadvertently increases your google ranking, or if it is to do with reputation more generally or – and this is my sense – to do with there just being a lot more people out there who have been cut adrift, and a lot more people whose relationship with their previous lawyer has broken down. Whatever the reason, sadly I often can’t help.

Here are the things I often find myself saying :

  • I can’t help because the case is not suitable for direct access or it would not be in the client’s best interests to use direct access
  • i can’t help because the client hasn’t got any money
  • I can’t help because they might be eligible for legal aid and they need to go and find a solicitor who can apply for them
  • I can’t help because the hearing is next week and I am already committed
  • I can’t help because they already have another lawyer (who invariably they are not happy with but they haven’t told them this)
  • I can’t help because they can’t tell me what it is they want me to do

Sadly, I suspect that apart from a few people who are local enough for me to be able to signpost them to local firms I know of, most of those I speak to never find a solicitor who will take them on, I certainly rarely ever hear back from them via the solicitor they have instructed briefing me. But I don’t consider it right to take a client’s money when I think they would be better served by instructing a solicitor, and nor can I take on a client where I do not think I will be properly paid for the amount of work that is needed, so I do have to turn a lot away (it takes time to do it, but I do always explain why, however briefly – I’m not sure that others always do this).

This week I returned the call of someone who had rung into chambers – I thought I was ringing a solicitor. Once this lady realised she had me on the phone she gasped and gave me a full, galloping run down of the last 20 years of her life from start to finish without taking a breath – because if she took a breath I might stop her. She’d been trying to get a solicitor to help for ages and had got nowhere – it was obvious why. I gave her some help with how she might go about finding a solicitor who would listen and make an application for legal aid for her. It made me think that this would be useful for more people than just this lady, who is far from the first person who has come to me because they are struggling to find a solicitor to take them on – and far from the first to do an “information dump” in this way (more often the information dump is in the form of very very long emails with 20+ attachments). I’ve also had repeated direct messages from one poor sod who kept being told (wrongly) by solicitors that legal aid for committals was not available. He eventually got legal aid when I got twitter to recommend (criminal) legal aid firms who were able to persuade the LAA that it really was in scope (it is).

So. If you are out there flailing around looking for “help” from a lawyer, here are some things that might help :

  • Funding / legal aid :
    • If you are a parent or carer involved in care proceedings you are entitled to legal aid. Use it. Instruct a solicitor.
    • If you are dealing with an appeal or any application that happens after care proceedings (eg about adoption, or discharge applications) you might be eligible for legal aid but it depends on your income and whether your case has any merit. It takes time to prepare and process an application – do it early.
    • If you are in dispute with an ex about a child you probably can’t get legal aid, unless you are the victim of domestic abuse (there are a few other exceptions like child abduction, wardship or where you are seeking orders to protect a child from a proven child abuser.

 

  • Decide what you want help with and if you want to instruct a barrister or solicitor.
    • A barrister cannot carry out work under legal aid unless instructed through a solicitor so if you have or are eligible for legal aid – solicitor first.
    • If you instruct a barrister through “direct access” you need to be able to run your own case, and sort out your own paperwork. You will need to deal with any court correspondence yourself (although a barrister can advise you how to respond it’s up to you to do it). If you don’t think you can do this without having a panic attack direct access is not for you.
    • Make some enquiries of a range of solicitors and barristers to see what might be more cost effective for you. Sometimes direct access is cheaper, sometimes it is not. Think about what sort of work you need doing – if you need someone to see you through the case and be available to deal with any queries as and when they arise, writing letters etc you probably need a solicitor. If you want a discrete piece of work like representation at a hearing or you want some advice to set you off on the right path a barrister might be more suitable. But most solicitors firms now also offer an “as and when” service too, so you can pay them only for what you ask them to do (sometimes on a fixed fee) and don’t end up paying for every letter they read or send.

 

  • If there is any possibility that you might be eligible for legal aid you need to approach a solicitor first, not a barrister. Once you have a solicitor you can ask them to instruct a particular barrister for you.
    • Use the .gov.uk website to find a legal aid lawyer who specialises in family work.
    • Several people have told me they don’t want local solicitors because its all too cosy / corrupt etc, but you will find that solicitors who are miles from where your case is going on will be reluctant to help because the travel costs mean they cannot turn a profit. Local solicitors (and barristers) will know how other local lawyers and the local judges operate – this is helpful to you. What you need is a GOOD lawyer, not necessarily one who is from out of area.
    • Solicitors are busy, don’t be afraid to chase if you don’t hear from them.
    • Be prepared to provide your bank statements and financial details when asked
    • Turn on your information filter : Do not ring a firm of solicitors and try and get everything into one phone call. The important information will get lost in the detail, which you can provide later once a solicitor is on board. Legal aid solicitors work on very narrow profit margins. Applications for legal aid are time consuming and unpaid – if legal aid is refused the firm makes a loss and the individual solicitor loses brownie points. A solicitor has to make a judgment as to whether they can afford to take on a client – they need to be able to quickly identify that the client is a “manageable” client and that they have some hope of getting legal aid at the end of the day (there is merit to the case). A client who has no off button and who gives an impression they are going to be “high maintenance” is sadly at higher risk of getting the brush off. Attempting to squeeze everything into an initial email or phonecall in an attempt to persuade the solicitor of how strong your case is will do the exact opposite. Start with the basics, detail can follow. If you get anxious and can’t stop gabbing you might find it better to write a short email setting out the basics such as :
      • name, age, address of you, the children (and your ex if relevant)
      • contact details – phone and email, when is a good time for them to respond
      • whether there is a current court case or application and if so what sort (e.g. application for revocation of placement order)
      • whether there are orders in place and if so what sort (e.g. placement order made Dec 2012)
      • what hearing dates are coming up and what the hearing is listed for if known
      • what applications you are thinking about making if applicable
      • the basics of what your financial situation is (e.g. unemployed / net income of £12k pa, no savings)
      • explain whether or not you have all the papers from any concluded court case, or if not whether some other solicitors firm has them
      • in ONE SENTENCE, two at most, explain why you think your case is strong or your main argument
    • once you have allowed time for them to have seen and digested your email you can ring and chase – asking if they have received your email of whatever date. Don’t race on the phone, keep calm and listen for the lawyer questioning or interrupting – if they interrupt it is because you are telling them something they don’t need to know and they will be trying to get a useful piece of information out of you, so they can form a view about the case. try and answer their questions even if they don’t seem to you to be asking about the important things.

 

  • If you decide you want to instruct a barrister :
    • Do not wait until the last minute. Family barristers are heavily court based – they only get paid when they are in court so they keep themselves busy. If you try and instruct a barrister to represent you at a hearing within the next few weeks you are likely to find they are already booked up.
    • Think about geography. I often turn away clients because they are at the other end of the country and it is either impractical for me to travel or just not cost effective for them (and I don’t think it is always helpful to have an advocate who is unfamiliar with how things are done locally).
    • If you can, be clear about what work you want the barrister to do and what your goals are before you make contact. Do you want advice on what to do, do you want representation at a hearing, do you want a barrister to draft a particular document for you? Don’t simply ring and say “please help me” – if you really don’t know what you want a barrister to do you probably need a written advice and / or a conference with a barrister so they can advise you what to do / suggest how you might best target your funds on advice and representation. If your barrister knows your goal (e.g. I want to get my children back) they can advise you about whether anything can be done to achieve that.
    • It is no good contacting a barrister in the hope that they will work for free. Most barristers do some work for free but they usually do this through the Bar Pro Bono Unit (or sometimes for existing clients whose funding has run out) rather than in response to enquiries that come “off the street”. Barristers need to meet their monthly business and personal expenses and most have a limit on how much free work they can do – and this applies as much to barristers who write books or blog posts that are aimed at helping litigants in person (like me, but there are others). I take on cases through the bar pro bono unit, but each day I work for free I have to work an extra day somewhere else to make up the shortfall. I can help more people by writing a blog post or a book, than I can by spending the same amount of time working for free for a single client – so that is what I prioritise. Ironically, because of all the other stuff I do I am probably less likely to take on a case for free than some other lawyers. Incidentally, most barristers will only start work under direct access once you’ve paid up front so don’t go into an enquiry thinking you’ll just work out how to pay at some point down the line. You need a plan before you call.
    • Work out what your budget is before you enquire – you may need to prioritise what you really need doing and what you can do yourself.
    • don’t start off by sending very lengthy emails with multiple attachments – this will not set you off on the right foot. If there is an order that is being appealed or you are trying to change, or if there is an order setting a date for a hearing it is usually a good idea to send that order.
    • check if the barrister or their chambers has a direct access enquiry form on their website. Use it. It is there for a reason – it gives the clerks basic information so that they can carry out conflict checks and work out who is available on the date of any hearing. it is a waste of your time to do more if the barrister you want is conflicted out or unavailable on the hearing date.
    • if the barrister does not have a specific form you could model an email around the bullet points above for solicitors.
    • If you ring the barrister’s chambers to enquire be ready to provide the sorts of information I’ve outlined above so that the clerk can go back and discuss the case with a barrister who can decide whether or not they can help, or whether they need more information. All those points about being clear, focused and not overwhelming the recipient with too much information are just as true when instructing a barrister. Clients who cannot focus or explain themselves are difficult to justify taking on from an economic perspective. Remember, switch on your filters.
    • don’t try and instruct a barrister whilst you have another lawyer acting for you – one lawyer cannot advise where another is acting, unless it is a barrister instructed by the solicitor to do so. if you want a second opinion ask your solicitor to seek counsel’s advice.

My direct access site is here : www.lucyreed.co.uk – on it you will find some information about direct access and my own direct access enquiry form which I use to get the basic information I need to work out what to do next. Other barristers do things differently, but it might help you to look at the form even if you are thinking of instructing someone else. You can find other direct access barristers at www.directaccessportal.co.uk.

Some of this probably sounds horribly mercenary – its your life and it shouldn’t be about the money. But at the end of the day the lawyers who do this work have to do it in a way that makes some profit, and cannot help anyone if they are running at a loss – the sad reality is that lawyers have to consider “how much work is this person going to be for the money I will get paid”? That doesn’t mean that a lawyer won’t take on a deserving case just because it’s going to be hard work or challenging, or that a lawyer won’t take on a “needy” client – we do that all the time. But in cases involving means and merits tested legal aid or direct access there are higher financial and professional risks for lawyers that make them more cautious about which clients they accept, and that makes you vulnerable to being left without a lawyer – there are things you can do to maximise your chance of getting a positive reaction from a solicitor or barrister, and I hope I’ve set out some of those above.

On a more positive note, I’ve had a really lovely letter from a man who bought The Family Court without a Lawyer and who found it helpful. I thought I would share that with you (I’ve edited out some case specific information).Screen Shot 2016-05-24 at 23.38.12

Is it ok to be represented by a barrister who sometimes acts for social services?

Sometimes parents are anxious that their barrister is not on their side, or even that they might be in cahoots with social services. Sometimes, when you’re being given depressing advice, it can feel as if your lawyer is not fighting hard enough for you, and sometimes it can feel as if they are spending too much time talking to the lawyers for the “other side” which makes you wonder about their loyalty. But sometimes parents feel anxious even before they get to court because they have been warned not to trust lawyers. For example, in this recent blog post ex-MP John Hemming suggests that barristers who act for parents when they have previously acted for the Local Authority who has brought a court case against them have a conflict of interest, the implication being that there is something dodgy if you are being represented by a barrister who sometimes acts for social services.

John Hemming is wrong in his interpretation of the rules. There is no professional conduct rule that prevents barristers from acting for different parties in different cases (obviously we couldn’t act for more than one party in the same case). Most family barristers are self employed, and all those self employed barristers act according to the “Cab Rank Rule” which says they must accept all briefs offered, however unattractive (there are limited exceptions which I don’t need to go into here). This is to protect the vulnerable and those with unattractive or superficially weak cases, and those whose cases are financially unappealing. The rule ensures two things : firstly that everyone who needs it has competent legal representation and secondly (this is more of a positive side effect) it ensures that a barrister representing a party has rounded experience of the sort of dispute in question, from all angles.

The important point is this : you need a lawyer who will fight hard for you. You also need a lawyer who will tell you bluntly when you are being stupid or your position is hopeless. And you need a lawyer who understands how the opposing team will be thinking, what will worry them, what they might see as their strengths and weaknesses, and where they might compromise. Having a lawyer who has acted for “the other side” is a strategic advantage.

But let’s just assume for the minute that John Hemming is right : before a barrister can act for you, they need to be sure you have given informed consent to me acting. How should you choose? What should you think about before giving your “informed consent”?

Competence and experience: Look at their chambers profile, CV, Legal 500 and Chambers & Partners profiles, Linkedin, twitter, blog… More importantly – ask your solicitor. Wherever possible they will choose someone who they have positive experience of, who has done good things for their clients before, and they will try and find someone who will suit the case and suit you. It’s okay to ask your solicitor to talk to you about the choice of barrister (although this isn’t always very practical for urgent hearings).

Rounded caseload: I would suggest it is generally a good idea to have a lawyer who does a bit of children work, a bit of parent work and a bit of local authority work. Any lawyer who does too much of one thing loses perspective a little. The job I do for parents is better because I know how Local Authorities think and act, and the same applies in reverse – I am able to give each better advice because I can make better predictions and manage the dynamics better.

Tells it like it is: Choose a lawyer who is prepared to tell you what you don’t want to hear. You can choose a lawyer who is a “Yes man” (or woman), but that is actually really risky. You NEED to know where you are going wrong, what your weak points are, where you need to change tack and have a rethink. It’s a really important part of a lawyers job – to deliver unpalatable advice and (bluntly) to call “Bullshit” when required. Once you’ve had the advice it’s up to you to give the instructions – you should not be afraid to say “thanks for the advice, but no thanks I’m going to do the opposite”, but if you’ve gone against the advice the outcome is your responsibility. But however daft your position it’s still the lawyer’s job to make the absolute best of the case you want to run.

Choose a lawyer who listens: Your lawyer will be busy at court and there might be a certain amount of running around and meetings between lawyers – and a lot of waiting around for someone to come and tell you what’s happening. This can be frustrating and anxiety provoking but it is necessary. It’s ok to ask your lawyer to keep you posted. It’s also ok to ask your lawyer not to go into court without you being present (sometimes called “counsel only” discussions. I do my best to try and keep clients posted and always try to request that parents come into court for all discussions, and I don’t mind being reminded when I slip up (it does happen). It’s your case. It’s ok to do as a client did the other day and to say “I don’t feel as if you’re on my side”. We talked about the difference between my private advice (negative) and the fight I would (and did) put up in court (feisty). And she was reassured. Your lawyer should not be dismissive of your anxieties about this.

Road test: And if you aren’t happy with your barrister after a hearing you can ask for a different one through your soliciitor. Do think before you sack them though – will you be better off with a different barrister or was the outcome of today’s hearing something they could not have prevented? A new barrister will have to start from scratch, so you’ll have to tell them everything again, and they won’t have first hand experience of the previous hearings, which can be important.

You can ask your solicitor to instruct a barrister who doesn’t act for a local authority, but you will find these are few and far between. The question you will need to ask is if no local authority wants to instruct this barrister why do I?

It’s probably better to ask your solicitor to instruct a barrister who has a good reputation for fighting for parents, but in truth your solicitor should be doing this as a matter of course. They might not always think to consult you about choice of barrister, but you can ask for input. Sometimes time constraints mean they will have to choose quickly without reference to you to ensure you have someone booked.

It’s worth remembering (as an example) that I have a good reputation for fighting for parents, but I am also regularly instructed by Local Authorities, and on behalf of children, and for extended family members. When I go to court and do my damndest for a parent client it doesn’t result in me losing work from the Local Authorities who are watching and receiving my incoming missiles. And when I act for Local Authorities the solicitors who are involved in the case for the parents, and who sometimes instruct me, know from experience that it doesn’t mean I won’t fight really hard for their next client when they instruct me. They just know I’m a lawyer who fights hard and who acts on instructions. That is what ALL clients want.

As often as I give unpalatable advice to parents about how idiotic they are being, I give unpalatable advice to local authorities too. That is the essence of the independent bar. When I’m YOUR barrister, I’m giving your case everything I’ve got. And the same goes for my professional colleagues (I’ve met a few bad apples but they are few and far between).

If you are worried about any of this talk it through with your solicitor, and if you feel it would help it is sometimes possible to arrange a conference before the hearing so you can meet your barrister face to face (this isn’t always practical given the way cases are timetabled and restrictions on funding, but you can ask).

Footnote : John Hemming says he is going to ask the Bar Standards Board to “clarify” the professional conduct rules. If he lets me know of any such clarification I’ll post it here.

 

Post script Mon 16 May 16 : the points about rounded caseload also apply to private law disputes. I think parents sometimes look for someone who always represents dads or always represents mums – I’m not sure this is the best way of selecting your barrister. There are some differences in private law – there is legal aid for victims of d.v. and so those represented under legal aid are predominantly but not exclusively female. This means that there is a preponderance of instructions from women / victims / primary carers, although of course in some families the stereotypes are reversed or not applicable and in others there are funds to pay for a lawyer regardless of eligibility for legal aid. In my view the assistance of a McKenzie Friend who comes from a “dads” perspective brings with it some of the same risks I identify above.

Post script no 2 Tues May 17 : See excellent sister article by Dan Bunting here : Should I worry if my barrister works for the CPS in other cases?

Splitting the assets

I had a little trip to the smelly old smoke yesterday to record a programme for BBC Radio 4. The programme is called Splitting the Assets and is airing on Radio 4 at 8pm on 3 Feb (repeating on the Sat night too I think). It involved yours truly, Sir Paul Coleridge (retired HCJ, Marriage Foundation etc), Nicola Mattheson-Durrant (Professional McKenzie Friend) and Marc Mason from the University of Westminster discussing the experiences of litigants in person dealing with financial remedy cases in the family court. The programme is structured around clips of interviews with litigants in person telling how it was for them (generally not great). There was lots more I’d like to have said but I think it will be an interesting, if depressing, listen. I don’t know if the degree of adaptation that has gone on in terms of judge’s handling of cases and changes in approach to litigants in person will really come across – there are genuine horror stories, and going to court is horrid and stressful whether you are represented or not, and whether your judge is friendly and efficient or not (my experience is mostly they are but there are of course exceptions) – but I hope that the programme will not make litigants even more anxious. There are resources out there to help you, whether you have a lawyer, a bit of advice here and there, or whether you go it alone, perhaps with the support of a friend or by paying for a McKenzie friend. A reminder that resources are out there can be found here : www.familycourtinfo.org.uk which contains both links local to the Bristol area and nationally applicable resources and information.

You can read more about the programme on the BBC website here.