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.
Feature Pic courtesy of by Salim Virji on flickr - thanks!