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…

9 thoughts on “The big experiment

  1. On your first major point I’d like to highlight the following ref the MOJ experimental statistics report:

    “”‘There is some evidence that hearings where both parties are represented
    have Increased in duration whilst hearings where neither party is represented have Decreased in duration.”””
    Page 5 a.

    “””Full hearings have Decreased in
    average (mean) duration, Particularly for hearings in which Neither
    party were represented.”””
    Page 5 b.

    Mean (median) duration in weeks of cases (Table A1 page 12) – Shows consistently from 2011 Q1 to 2014 Q2 that:

    Where Both Applicant and Respondent are Represented vs cases with both LIPs – The Represented cases took consistently longer to disposal.

    Last Quarter (Q2 in 2014) – Represented 24.7 (16.3) weeks vs LIPs 17.9 (10.6) weeks.

    • Chambers,
      Read what they mean when they say “hearing duration” – it ISN’T actual hearing duration. They have NO DATA on actual hearing duration.
      Duration of case is rather different – and the reasons for longer / shorter duration are myriad – but unless you are able to compare cases of similar complexity with and without lawyers the fact that unrepresented cases are shorter running tells you nothing. Very probably a bit part of the reason represented cases take longer is that they are the more complex ones.
      Also relevant – you might want to take a look at this:

      • Sure, I understood before I posted ref “hearing duration”. Nevertheless, the data and points made by the research are still of interest.

        Duration of case, well granted cases can vary in complexity of course. No reason to believe that represented cases are more or less complicated than LIP cases, it is access to funds that determines very often whether a case involves lawyers or not.

        The data shows that represented cases consistently run longer than LIP cases.

      • Sure, I understood before I posted ref “hearing duration”. Nevertheless, the data and points made by the research are still of interest.

        Duration of case, well granted cases can vary in complexity of course. No reason to believe that represented cases are more or less complicated than LIP cases, it is access to funds that determines very often whether a case involves lawyers or not.

        The data shows that represented cases consistently run longer than LIP cases.

  2. We are moving to a more inquisitorial system where Judges are expected to put a shift in and not fall asleep whilst opposing lawyers hammer the other parent in the adversarial process.

    It is in transition and much more needs to be done (I agree) to bring some judges up to speed. However, the majority of judges (some under protest) and even the magistrates are getting to grips with this brave new world very quickly indeed. Plenty were already there.

    It is and was a huge waste of resources in the family law system for highly experienced and skilled Judges having to go through the motions of listening to sometimes rather average lawyers who were for the most part merely trying to impress their client for that return booking, whatever the consequences to their clients long-term outcome in proceedings.

    There are plenty of excellent lawyers who have reached a stage in their career or who have already the ability & awareness to assist their client genuinely in being more reasonable when necessary and appropriate but too many unfortunately are not able to do so.

    The reality is that the Legal Aid cuts are here to stay and whatever happens in May next year, there will be some tinkering at best.

    So the family law system had to change.

    There are some dreadful McKenzie Friends as there are some pretty awful Lawyers, nothing new there. Regulation doesn’t seem to have made family lawyers any more popular or respected according to surveys but it may have its place for McKenzie Friends but that is for another day perhaps to debate.

    The Liz Trinder report seems pretty clear to those outside of the judiciary, lawyers and court officials – Just another attempt to slow, stop and reverse the inevitable lasting reforms that have to happen and have happened to the family justice system.

    Liz Trinder was at the forefront of opposing Shared Parenting and as a result the Shared Parenting organisations many of whom have long-standing McKenzie Friends have been critical of her stance. Perhaps this report is some payback for that regarding professional McKenzie Friends as her conclusions are pretty damning when you consider it was based on only 3 examples.

    Her conclusions fly in the face of the Legal Services Consumer Panel and the recent view of the President of the Family Division regarding McKenzie Friends.

    The other contributors (perhaps all) to the report are also involved in lecturing in Law etc, so one would just maybe expect them to be protective of lawyers and against any change that saw a reduction in their numbers. No controversy there surely?

    What struck me with the report is that it seems to be primarily based on the views and opinions of focus groups held with judges, court staff and lawyers. So what would we expect to see as an outcome perhaps?

    It was a wasted opportunity by the MOJ in them not bringing in some independent researchers who cannot be perceived to have a vested interest and therefore give the research the gravitas it needed.

    • I don’t really see the Trinder report as an attempt to slow or reverse the reforms – it gives some pretty clear challenges to lawyers and judges to make changes themselves. I think you may be viewing it through the lens of “Trinder = bad” that is so prevalent in the fathers rights movement. In any event it is not a report by Trinder alone, but a group of well respected academics. Incidentally its not my experience that academic lawyers are particularly protective of practising lawyers – people like Prof Moorhead are often saying things that are hugely uncomfortable for the legal profession.
      You say the report is primarily based on the views of lawyers and judges – it isn’t! it extensively cites interviews with litigants and reports on observations of their court experience and their own perspective on it.
      They plainly are independent researchers – the report doesn’t say anything the MoJ will be pleased with and no doubt it is a mark of how unpleased they were with it that it took almost a year to be published by them. It still says things that are strongly contrary to government policy which is an indicator that the researchers stuck to their guns until the MoJ caved in and published.

      • Seems we will have to disagree on this.

        I would point out that this is not about the so-called fathers rights movement but regarding Shared Parenting. To label those of us who are interested in moving towards a Shared Parenting model on separation/divorce as merely fathers rights activists, ignores the evidence that there are respected organisations such as Leading Women for Shared Parenting who have little or nothing to do with so-called fathers rights. Or those lawyers and members of the judiciary who support shared parenting legislation being labelled as part of the fathers rights movement, not particularly convincing I’d suggest.

        It could be said if we are going down this route of labelling Shared Parenting organisations as merely fathers rights groups, that those who oppose Shared Parenting legislation are merely mothers rights activists. Does not get us very far.

        The report on Page 137 says there was a detailed analysis of a 151 cases which involved interviews with parties and professionals involved. There were also focus groups with local stakeholders (judges, lawyers, Cafcass and court staff), interviews and observations with local LIP support organisations. I would suggest that this would indeed mean there was a large if not overwhelming reliance on professional involved, including lawyers, judiciary and Cafcass.

        I agree the MOJ do not seem overly impressed with the research, perhaps because they see it as plenty of others will as having an agenda. Who knows.

        • I take your point on use of terminology – what I had in mind was the frequent references to “Feminazis” when discussing people like Trinder or anything associated with the Nuffield Foundation (for example) which I think is primarily from the fathers branch of the shared parenting movement…but I didn’t articulate that and take your point that fathers rights is not a good shorthand for the shared parenting movement. Perils of responding to comments in haste etc…I think you know that I know the difference.

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