A view from the coalface

Daniel Mennerich on Flickr - creative commons - thanks

I've been getting blank faces whenever I've asked colleagues what they think of the latest 'President's View' (the first from this reincarnation of the President, Lord Justice Macfarlane). Turns out that was because nobody has had time to read Family Law journal and it hadn't made it's way into the wider world. Eventually I emailed the President's office to see if the publication of the View only behind a paywall was intentional. 24 hours later its all over the place, so I guess it wasn't (if you want to read it in full it is here).

I've re-read it now, and see there is more in it than the middle chunk entitled 'Well-being: dealing with the current pressure', which had me tossing the journal across the desk in despair the first time around. But that middle chunk is still bothering me. I'll precis it for those who CBA to read it or who have worked out for themselves that they will have to cut out non-essentials like keeping up to speed in order to keep heads above water :

  • the President is concerned for the wellbeing of all of us
  • he cant do anything about workloads
  • it isn't business as usual - it's ok to cut some corners (which ones? does that apply to us?) and exceed time limits (when?) otherwise we risk burn out (please could someone tell this to the judges?)
  • the President is 'encouraging local dialogue' between us and our respective DFJs so that parameters may be agreed as to what is sensible and acceptable working practices - he gives examples of what might be discussed and agreed :
    • the earliest and latest time of day when the court can reasonably be expected to sit
    • the latest time in the evening / earliest time in the morning when it is acceptable to send an email to another lawyer in a case or to the court
    • reducing a position statement to one side of A4 bullet points on the basis that fuller oral submissions may be made at court
    • relaxation of the requirements to lodge preliminary docs by 11.00am the day before a hearing.
  • However, the President says it is a given we will continue to 'go the extra mile' when needed (but it's ALWAYS NEEDED!)
  • The President is giving us psychological 'permission' to talk about these things together and with local judges.

I'm pausing to push my despair back down to its safe hiding place as I type. I like the President very much but this is impossible. We have duties to clients - I can't do a half arsed position statement and hope that the judge who is at breaking point and doesn't have time in his list will let me waffle on to make it right the next day. I can't  not respond to an email late at night if the hearing is tomorrow and there is a risk I might get bawled out for not being ready when I rock up at court. I can't know what local practice has resulted from 'local dialogue' in a neighbouring court, and how not lodging a preliminary document by 11.00am will go down (in some courts I've appeared in, filing a document at 11.01 unequivocally results in a refusal even to acknowledge the existence of the document, even if one was briefed at 10.59 and the document is genuinely important).

We don't need psychological permission to go and have a nice cosy chat with our DFJ in the way that children need permission from one parent to go to the other. We need leaders to say we don't have to do this, we must not do this.

Not only will 'local dialogue' result in a complete postcode lottery depending on how cuddly the DFJ in a particular area is (and I can tell you some are decidedly more cuddly than others), it will result in confusion where advocates are briefed across DFJ borders (this already happens but it will get worse). For example, some judges consider it the norm (so I understand) to sit up to and even after 6pm and advocates are simply expected to have childcare in place. And some judges demand full written openings and detailed agreed advocate's chronologies for every care final hearing (a rarity where we are). And more importantly, in some DFJ areas (not mine, for what its worth) it would be utterly impossible for a productive dialogue to take place because the environment is such that professionals are in a state of perpetual anxiety waiting for the next b*locking. There have already been some localised flare ups in a couple of areas in response to unhelpful missives and local guidance about the prompt e-filing of orders and compliance courts which do not make for a great starting point for dialogue. It is really hard even with a cuddly DFJ to broach these issues. It is impossible in courts where the judiciary are overly fond of enforcement, shouting and threats of wasted costs.

This is all interconnected with the rising awareness of judicial bullying. Firstly let me reiterate that most judges are not bullies. And occasionally a judge who bullies does so just because that is how they are. I happen to think though that most of the judicial bullying that takes place is unintentional and where a judge's 'robust case management' tips into inappropriate and bullying behaviour, in part because of the pressures the judges themselves are under, and their loss of perspective as to what the pressures are for the bar and solicitors (and social workers). The pressures are far more intense than when most judges were in practice and I don't think they are comparing like for like when thinking back to what we have to contend with and trying to set realistic tasks and deadlines. The fact of the matter is, whatever the President says about how it cannot be right that we go the extra mile as a matter of routine, advocates in some areas ARE expected to go the extra mile ALL THE TIME. And roundly criticised when they can't keep it up.

Andrew Macfarlane is eminently approachable, and this is obviously a genuine attempt to help, but not all judges are approachable. And, as I was reminded by someone who had listened to the Word of Mouth radio programme I took part in recently, the law is astonishingly hierarchical. Challenging a judge in an individual case because it is your job to be a fearless advocate, or irritating the judge in the individual case because your client's instructions are frankly batty, is one thing - but asking a judge known to be fierce and rigid about time limits and procedure to 'cut corners' so you can get a bit more sleep is quite another, even if prefaced with 'the big P has told me to ask you'. In fact, starting such a dialogue with any judge is really difficult for the advocates that appear before him or her. I am anxious about publishing this blog post even though I have been very careful to talk in general terms and not identify any particular judge or area. I speak based on my own direct knowledge of appearing in courts all over the jurisdiction and from what many have shared with me (in part because I have written about judicial bullying before). Writing this blog in general terms is one limited way I can support colleagues at the bar and in other professions who frankly have it worse than I do. You know who you are.

So there we are. Please don't leave it to those of us at the coalface to sort out amongst ourselves by asking the impossible of those higher up the chain who hold far greater power than we. Please don't leave it to DFJs to sort out this impossible task - its like feeding the five thousand. Please don't allow a situation to develop where professionals in one area feel unable to speak up and burnout or leave as a result. By all means listen to us, but do not place upon us the responsibility to tell our superiors what to do. Sometimes the adults have to take charge.

 

Feature pic : Daniel Mennerich on Flickr - creative commons - thanks

Why do lawyers talk legalese?

I’ve been thinking about this a lot lately. Last week I went to record an episode of Word of Mouth with Michael Rosen all about legal language (airing later today – Tues 22nd– at 4pm on Radio 4), so I want to set down some of the thoughts I’ve had along the way.

As it happened, Paul Magrath was in the middle of writing his review of the latest edition of Clarity for Lawyers (Adler and Perry) (sounds excellent - please buy me one for my birthday) - and when he heard about the programme helpfully sent me some extracts from it, along with an excellent speech from Lady Justice Rafferty about the same topic. Whilst I highly recommend both, I feel I have to observe that for a speech about clarity of language I still had to look up one word – 'quotidian', and another ‘plasticity’ is one I like but which I almost always have to explain).

Actually I don’t think legalese is exclusive to lawyers as such, in that all professions, industries and many other specialist groupings have their own codes, languages and acronyms which can exclude outsiders intentionally or otherwise. All humans use language in such ways for convenience or speed, but also sometimes to create a sense of belonging to a community by excluding others (think pig latin). We speak in special ways - are you like us?

I think that the reasons we lawyers tend towards using five words when one will do, or prefer to use an unusual or complicated word instead of a simple one are multi-layered. And that some of those reasons are better justification than others for – sometimes – using hard words in what we do.

Personally, I was drawn to the law by a passion for advocacy. I love to use words, to articulate things in a way that flows and is compelling, and is satisfyingly structured and coherent. There is a beauty in a well formed written skeleton argument (never more perfect than before it is torn to pieces by the judge or opposing counsel), and there is joy in delivering arguments through oral advocacy and noticing that your audience of one, the judge, is listening and furiously noting what you say (although sometimes they are furiously noting what you say so that they can better articulate with force that you are wrong and your arguments crap). More so when you know that you are giving form to what your client would struggle to articulate or to get heard.

It is so tempting to dust off a rarely used or unusual gem of a word and to drop it in to a sentence where it can sparkle. But the job of an advocate is really not to dazzle but to explain. Good advocacy is pleasingly coherent - it should be a revelation that makes everything make sense - it should not be boring or monotonous but it should also never be blingy. There is nothing wrong in using a technical word if it can avoid a tedious explanation but so often a clever or 'special' word or phrase (including latin) is not actually any quicker or less accurate than a plain English alternative.


Anyway, before heading to Old Broadcasting House I did a spot of social media ‘research’ – asking people who had been through family courts what use of language they found surprising or confusing. Predictably enough some answered the question they wished I’d asked rather than the one I actually did ask, and took my tweet as a springboard to tell me all about the things that were wrong with family courts and lawyers – but many responded with words and phrases that had perplexed or surprised them – some I had successfully predicted would be on the list and quite a few I hadn’t. Thanks to all of you.

Here is a little run through of some (not all) of the responses I got (with a few of my own for good measure). One or two were covered in the course for the recording (though I don’t know if they will end up on the cutting room floor), but here I can cover more.

The first batch are about words for lawyers. This is definitely a source of confusion and the most popular searches on this blog are always for 'what's the difference between a barrister and a solicitor?' or variations on that theme. Here is the blog post answering that question by the way.

Barristers and solicitors are both types of lawyer but a lawyer can't be both, they are either one or the other. Barristers are specialist advocates, but ini fact both types of lawyer can be an advocate (there are also legal executives but I’m trying to keep it simple). See my super duper venn diagram (No, I'm not giving up the day job to be a maths teacher don't worry).

Counsel is another name for a barrister. When the judge asks for ‘counsel only’ it means she wants to see only the lawyers without their clients. When a solicitor briefs counsel they are sending the case to a barrister so they can deal with a hearing or advise on the case.

Queen’s Counsel (QC) is a senior barrister who has been given the rank of ‘QC’ as a mark of excellence. Also called a silk (something to do with the special garments worn by QC’s).

Any barrister who isn’t a QC is a ‘junior barrister’ no matter how senior they are. Barristers who are experienced but not senior enough to be a QC they are called a ‘senior junior’. Yes, daft isn't it?

Chambers – what the rest of the world call offices. Mainly different because barristers don’t (generally) work in a ‘firm’ or company, but are independent sole traders who club together to pay for a room in chambers and share clerks (employed staff who receive enquiries, get in work and allocate it).

Findings – when a judge has decided something has been proved after a trial.

Held – I was always told that a judge finds facts and holds as to the law. So, on an appeal the court ‘held that…’ the law is x. But frankly, now I’ve typed that I’m not sure and I want to go and look it up!

Skeleton – a written legal argument in outline form.

Submissions – the lawyers speechy bit at the end of the case (sometimes done in writing)

Issue – a phrase used by lawyers to mean the things that are in dispute – but only the ones that actually need to be decided for the judge to make a decision. Cue affronted client when told that something that is very important to them is ‘not an issue’ and hurried explanation that what is important to the client is not always relevant for the judge…

ex parte – latin. These days [in family cases]* it should be replaced with the phrase ‘without notice’, but often isn’t. It means 'in the absence of a party' and applies [in family cases]* mainly when one party goes to court to get a domestic violence injunction in place before the other party is told (because if warned in advance they might do something daft). Ex parte hearings should be followed swiftly by an 'inter partes' (‘on notice’ or between parties) hearing so that the person who was not present the first time can have their say. [To be strictly accurate an 'ex parte' hearing also includes a hearing that the other party is aware of but excluded from, for example in a national security context, but this is a real rarity in family cases]*

*[clarification in square brackets arise from a helpful observation by @leoniehirst - thanks].

without prejudice – relates to private correspondence and negotiation that the judge should not be told about until after he has decided the case. Applies to what is said in mediation, not that you’d notice given the regularity with which people submit mediation material.

prima facie – more horrid latin. Means 'on the face of it'. Someone who has a ‘prima facie case’ is someone who has presented enough evidence for it to be looked at, but it doesn’t mean the case will be made out if its poked and prodded and turned around and looked at from behind.

Housekeeping – stupid, trivializing phrase that I am trying to unlearn for administrative stuff that needs to be sorted out at the start of a hearing. which order are the witnesses going in, where is the witness bundle

Part-heard – when a hearing breaks off to a later date half way through the evidence. When the case is part-heard ll the same advocates and judge have to continue the case until the evidence is finished and the judgment given which means lots of diary juggling.

My learned friend – what barristers call one another in court when they have forgotten the other one’s name.

My friend – what barristers call solicitors when they are in pompous git mode (making the point that the solicitor isn't a barrister).

Disguised compliance – as someone said recently a complicated word social workers use when they think parents are lying but can’t prove it. The name makes zero sense but I think is meant to mean when parents disguise the fact they disagree there is anything wrong with their parenting by superficially doing what they are asked to in order to get social workers off their back. Putting on a show or game playing would work just as well.

More generally, acronyms and using the section numbers from a piece of legislation as a shorthand to identify a thing in that section are a general bugbear…. There are so many I can’t even begin to decode them… EPO, ICO, s20, s7, s37, s47, FHDRA, DRA, IRH, PTR, GRH…

Threshold – this is a reference to first stage of the legal test for making a care order in section 31 Children Act 1989. It roughly translates as : is there enough evidence of actual significant harm to open the door to care orders? Has the parenting crossed the line into care order territory (separate question from whether a care order should or will be made)?

Paramountcy principle – means childs welfare trumps everything else

Paginated bundle – a bundle is what lawyers call the file(s) of court papers, put in order and separated into numbered sections so that the judge, lawyers and witnesses can all find the same documents in the same place (in theory).

Others that require a more in depth explanation (a job for another day) include :

  • pool of possible perpetrators / in the pool
  • standard / burden of proof
  • balance of probabilities
  • order / direction / recitals
  • consent
  • mckenzie friend
  • Re B-S analysis

 

Anyway, that's all I have time for now but do listen to the programme this afternoon or on catch up. I may do some more translations in due course.

 

And thanks again to those who took time to send me their ideas...

POST SCRIPT : One of the things I hope the legal blogging pilot will help with is decoding and translating what happens in court. I'm running a workshop for lawyers, about Journalists and legal bloggers attending family courts next Tuesday. Spaces are still available but booking is essential. More info here.

Journalists and legal bloggers attending family courts – A Workshop for lawyers

29 January 2019 5.30pm, Gresham College, London

Next week I'll be running this Transparency Project training workshop for lawyers. Please do come if you can.

More information:

In light of the Legal Blogging Pilot implemented through PD36J, The Transparency Project are running a CPD workshop for lawyers interested in brushing up their ‘transparency’ knowledge – whether with a view to taking part in the scheme themselves, or so they feel better prepared for responding to attendances by legal bloggers or journalists in cases where they are instructed. We know that for most advocates the attendance of a journalist at hearings is a rare event, and often catches people by surprise. Even more so where legal bloggers are concerned. What is the law and procedure? How should you advise your client, and how should you respond to any application these reporters might make?

Whilst we are keen to encourage lawyers to become aware of and involved in the legal blogging pilot, the purpose of the event is wider than that – to inform and advise on what restrictions on publication would apply or how the pilot scheme operates in the event that a legal blogger attends court.

Our aim is to assist advocates to best serve the interests of their clients whether parent, child or local authority. We’d also like to take the opportunity to gather any feedback from participants on the issues that may be emerging from the pilot scheme and their experiences of it or worries about it.

Because we want to facilitate frank discussion and enable participants to ask questions about things they are concerned or unsure about, this event is a lawyer-only event and will not be video recorded.

This event is open to any lawyer conducting advocacy in the family court in England & Wales or who would be eligible to attend court under the legal bloggers pilot. Tickets are free, but donations are invited. Ticket numbers limited. Please book via our Eventbrite booking page.

This event has been made possible through the kind sponsorship of Bloomsbury Professional Family Law.