Resolution Guide to Good Practice for Family Lawyers on Working With Litigants in Person ?

Resolution recently published a guide for its members to working with LiPs, an increasingly common phenomenon. You can read the guide here.

David Burrows beat me to posting a review of it, and he was rather underwhelmed with the “homely guide”.

It is addressed to the lawyers who are expected now to liaise with LiPs, but its utility will not be just for lawyers but also for LiPs, McKenzie friends and indeed judges and represented parties – in both managing expectations of contact with a lawyer who is the bearer of duties to both client and court, but also in calling to account those who do not meet reasonable standards of courtesy and helpfulness – although the “you” is plainly the lawyer, the language and tone suggests the writers were alive to the fact that this document would be read by lay parties as well as Resolution members. It might in some circumstances be seen as something of a stick with which to beat shirty lawyers, although how effective a stick it might be is less clear. It will most often be a useful reference point when dealing with a LiP who has unrealistic expectations of a lawyer – I imagine that Resolution members will send a LiP to this document to help explain why they can’t (for example) correspond with a McKenzie friend or respond to every email in.

What is interesting about this document is that, whilst its contents will be no brainers to many practitioners, its tone represents a significant shift from documents produced not so very long ago (I am thinking of the Law Society Practice Direction from 2012) from defensive (how to reduce risk and complaint by minimising contact with LiPs) – to reflective and pragmatic (how to progress cases and achieve resolution by trying to find ways of working cooperatively with LiPs) – and from seeing contact with a LiP as in conflict with the lawyer’s duty to ones own client to seeing it as an expression of both the lawyer’s duty to the court and to the client. By way of example take this mealy mouthed snippet from the Law Society document : “Accordingly, whilst it may be legitimate for you to refuse to do so there could be circumstances in which the interests of your client and the court will be furthered by providing some level of assistance, for example in avoiding unnecessary costs being expended in dealing with a misguided initiative“, which seems a rather outdated expression an old skool “bare minimum” philosophy, only two years down the road. It’s modern and more relaxed descendant is perhaps seen in phrases like this in the Resolution document “take care not to give unsolicited legal advice to the litigant in person but think about what information might be helpful for them, including providing links to websites or organisations that may be able to offer them help or explanations about the law or procedures.”

This document is big on encouraging practitioners to think at all times about how their words and actions may be perceived and (mis)understood and as to the need for them to engage with a justice system where LiPs are as much the norm as lawyers. About time too. Many – I hesitate to say most – many practitioners, both bar and solicitor, make real efforts to deal proactively and constructively with LiPs but even those of us who are alert and who make efforts do not get it right all of the time, and there remain still too many who just turn their face away and see LiPs as the problem, and as someone else’s problem at that.

There are a few glitches in this document, for example the text at the bottom of page 8 seems to be cut off in its prime, and some of the hypertext links don’t work. But overall I think it is a helpful reminder of good practice and a useful document to signpost and refer to from time to time. David Burrows complains that it is shallow and lacking in detail – there are undoubtedly difficult topics it does not attempt to cover but the topics (rightly) identified by Burrows are by and large questions as yet without answer.

In future it might be useful for Resolution to publish a version of the guide addressed to Litigants in Person.

Private Law – one swing and a roundabout

The downturn in private law applications is definitely starting to look like a trend. Another month of figures lower than the same time last year (9%). And take a look at the table here – there is clear blue water between that red line (this year) and any other year shown.

On the plus side, the Gudanaviciene JR has been upheld. This was a batch of immigration cases, but the key point for our purposes is that the Lord Chancellor’s guidance on s10 LASPO has been held to be unlawful. As reported in the Telegraph, the Ministry remains unrepentant, saying through a spokesperson that “We continue to believe that the exceptional funding scheme is functioning as intended. Its purpose is to provide funding where it is legally needed.”

The big experiment

The Litigants in person in private family law cases research study (Trinder, Hunter et al) was published by the MoJ on 27 November 2014. It is a 234 page long report analysing the findings of a multi-stranded and significant piece of research around the experience of litigants in person in the period immediately prior to LASPO implementation. It has been long awaited (LASPO having been implemented some 18 months ago). It has been widely reported as having been “sat upon” or “Awaiting quality assurance” depending on perspectives (see here and here) and even as recently as 19 November the MoJ was saying no date was set for its publication. However, by 27 November it was published. There was no accompanying press release.

The ad hoc statistical release Experimental statistics: analysis of estimated hearing duration in Private Law cases, England and Wales was published the same day. It is a 13 page document including contact details. The preceding day the MoJ press office issued a notice of intention to publish in respect of the Experimental statistics.

Also on 27 November 2014 the Minister announced in the House the publication of the Government’s response to the Transforming Legal Aid : Crime Duty Contracts Consultation. This was always going to be a bigger legal news story.

The Government has of course been recently criticised for holding back unhelpful research or reports on a range of topics (such as immigration). And there has been a recent spate of instances of widely reported judicial concern at the difficulties faced by and caused by litigants in person (for example here). Also, the National Audit office published a report on 20 November which also raised concerns about the economic effects of LASPO.

The Gazette reported the experimental stats under the headline “Cuts have had ‘no significant impact’ on hearing times”. Jordans reported the experimental stats thusly : LiPs not to blame for delays in family courts.

I’m sure there are also news reports relating to the Trinder research but I can’t find them. This is hardly surprising in the circumstances. Far easier to read the first few pages of the bitesize research release that has been flagged by the Press Office than to actually read all the caveats or to find, read and digest the silently published 234 page behemoth. The MoJ does have a bit of a history of issueing “ad hoc” statistical releases at convenient moments, usually resulting in inaccurate headlines about Fat Cat legal aid lawyers, and sometimes resulting in rebukes for inappropriate use of statistics.

Notwithstanding the headlines in the legal press the “experimental stats” neither assert nor evidence the sorts of propositions in the headlines. To save you the trouble of actually reading a whole 13 pages let me precis the precis for you. This study is not a study of how long hearings take (notwithstanding its title). It is based upon recorded time estimates logged by courts in advance of hearings. That is to say, how long they were allocated. This is NOT the judge’s estimate after the event of roughly how long each case actually took. This is not even a specific estimate of how long a judge with an understanding of the specifics of the case thought they might take at the point when it was listed. It is a standardised allocation of time based upon the broad category of case and type of hearing, which can be altered from the “standard” time estimate if a particular feature warrants it. For first hearings the “standard” time estimate in many types of case is now double the length allocated pre-LASPO to cater for LiPS. And this will apply regardless of whether the case involves 0,1 or 2 litigants in person, because at the outset the court doesn’t know how many LiPs it will get. And as anyone who has ever been to the Family Court will know the time estimate usually goes out of window once you are at court. So let’s be clear. The time estimate before a hearing is in no sense an indicator of how long a hearing takes. Or of how much time is spent at court (as opposed to in court). Or of how much additional time is spent by lawyers either dealing with LiPs in order to reduce actual judicial time or waiting behind a list full of LiPs who are being dealt with at length by the judge. It isn’t really an indication of anything very much. The experimental data also looks at number of hearings, but since there is a general trend towards fewer hearings there isn’t really much that can usefully be drawn from the stats available. So basically they don’t tell us much at all. And the only experimental aspect of this appears to be in testing whether anyone would read past the summary. Hypothesis proven then. *Sigh*.

The Trinder research however, does tell us quite a lot. Of course I am skipping over lots of nuance when I summarise here, but : It tells us that there is wide variability in the capacity of litigants in person, and in the approaches of lawyers and judges. It tells us that apart from a small cohort of pretty competent LiPs who can manage things ok, it takes a proactive judge or a helpful lawyer to make things work reasonably smoothly and fairly for a LiP. It tells us that McKenzie friends can be really helpful – or really NOT helpful. And it tells us that LiPs are every bit as bewildered as we thought they were, even those who are educated or “high flying” and who we might assume are well equipped to manage, and that they asking for more guidance to help them navigate. Further, it tells us that there is a rump of Litigants who will always need lawyers and it recommends that initial legal advice to facilitate dispute resolution and, where necessary, for initial preparation for court proceedings is made universally available. Starting to see why it might have been left to gather dust on a shelf in Petty France somewhere?

So, far from the “LiPs not to blame for delays in family courts” nonsense (presumably it is those pesky lawyers and judges creating the delays with their whining about human rights and access to justice) – there is a real issue to be tackled here. And it isn’t as straightforward as telling the judges to crack on and crack heads. Because from a human resources point of view not all judges will have the aptitude for this new sort of “sleeves rolled up” judging, and frankly none of them yet have sufficient training for it. And nor is there sufficient judicial resource or court time to do this day in day out. There is lots of talk about how other jurisdictions manage without lawyers – but if we were moving to a new model of family justice what happens whilst we work our way from A to B? Families going through the Family Court today are coming to a court that is still dependent on lawyers but which has fewer of them to service the model. We’ve had the deckchairs on the Titanic analogy before. Let me give you a slightly different one : LASPO was like chucking the passengers off the sinking ship before inflating the lifeboats. That’s a pretty big experiment in sink or swim, and the Trinder research seems to be telling us a lot are not waving but drowning, however you rearrange the statistical deckchairs.

I wonder if it is a side effect of the delayed publication that the report recommends (at page 109) that “a range of YouTube videos demonstrating what a courtroom looks like, where to sit, how to address the judge, etc. would also be useful for some, although would need to be clearly signposted in information literature and on the website”, when in fact videos doing exactly that have been available since May of this year (mine – search “nofamilylawyer” on youtube). In truth, the MoJ published videos attempting to do this some time in 2013 but – well let’s just say they inspired me to make my own. And it appears that the researchers either did not find them or did not think they fitted the bill.

One thing I noted as absent from the report was that although the authors note a greater financial burden may be placed upon the privately paying opponent of a LiP as their lawyer is given greater responsibility, nowhere was it noted that in publicly funded cases the lawyer is simply expected to absorb ever more work for absolutely the same fee (See my Thin Gravy post here). There is a real risk that people will stop doing publicly funded private children work for victims of domestic violence or abuse (as they did with money work) because it is uneconomic.

Anyway, we shall see how it all pans out. The great Justice experiment continues…