It’s January – we’re all trying to slim down

Bundles again. They are still too fat. The Pres has put them on another crash diet. Or at least, in a moment of post Christmas enthusiasm he's decided it's time to do something and is at the stage of deciding between Atkins, 2 days fasting or just giving up the booze and implementing a creme egg ban.

Andrew at Suesspicious Minds nudged me this afternoon "D'you fancy this one?". This is a sure fire sign it is a sere old blog topic.

The President wonders...

"...whether the time come to impose page limits for certain types of documents, which will be mandatory in all cases...Unless...the court has specifically directed otherwise, being satisfied that such direction is necessary to enable the proceedings to be disposed of justly.”

The trouble is, this sits somewhat awkwardly with the other mandatory requirements relating to what MUST go in to various documents and how the words must be nicely spaced out on the page for judicial convenience (single sided, double spaced, 12 point, margins of a certain width etc).

Let me illustrate. Fortunately on this blog I make the rules. And thus I may be as verbose as I choose in the course of my illustrative exercise.

And I may select my own formatting, at whim.

I like green ink.

The President suggests these not at all arbitrary page limits :

Case summary 4

Statement of issues 2

Position statement 5

Chronology 10

Skeleton argument 15

List of essential reading 1

Witness statement or affidavit (exclusive of exhibits) 20

Expert’s or other report 40

Care plan 10

Now I'm a fan of weight loss. And I recognise that there is no gain without pain. However, as much as I am neither implementing my plan to lose the 2 stone I have been affectionately and insistently describing as "my baby weight" for the last eight years by attempting to run a whole marathon whilst entirely stopping eating, I have some skepticism with the idea that the court can ruthlessly slash bundles without impacting on its ability to get to the finish line in one piece. A court without evidence is mere skin and bones.

So. Let's look at the calorie controlled diet plan...

Case summaries at 4 pages? Ordinarily I would say a case summary need not be more than 4 pages - but then in my experience it rarely ever IS more than 4 pages, so I wonder whether it is really helpful to require an advocate who exceptionally drafts a long one to have to secure permission to do so.

As for experts' reports at 40 pages - the general trend is I think to produce executive summaries of sensible length, but it is still commonplace - and necessary - for experts to exhibit their "workings" (the details of tests and tools used and of the interviews carried out) in appendices if there is to be any hope of the parties properly challenging or testing that evidence (or of course of the court assessing its reliability and weight).

Statements...20 pages plus exhibits. Social work statements are going to be a problem, since A BLANK TEMPLATE for a social work statement is 14 pages (not that anybody uses them, thank God) (see here under Other Documents). Although I agree that care plans probably do need a crash diet as they seem to be artificially bloated beyond all proportion by a repetition of the Local Authority's case as already set out in its statement.

I was restricted to 20 pages plus exhibits only today - I can only assume that whilst we were out of court trying to match the dates of the experts with the non-existent free court days for the hearing, the judge was efficiently reading the consultation document that had just popped up in his inbox - before adopting the old 20 pages plus exhibits wheeze. It was fine in our case, but I worry that there is an increasingly fine line to be walked between compact and lean and insufficient particularity - which can disadvantage either the person making an allegation or the one responding to it depending on the judicial response. As it stands cross examination of social work or other evidence often proceeds along the "well why doesn't your statement mention / set out / explain X / Y / Z?" line. Whilst there is an impressive ability on the part of the social work profession to say a lot of words without saying much of anything at all (a phenomenon which I have observed has become much more notable with the rise and rise of wretched templates for every report or statement), a word or page limit is frankly not going to improve the succinctness of a statement if the person writing it is lacking either time or writing skills, or is forced into the sort of uselessly mechanical, repetitive and reactive writing style that is demanded by the moronic, generic, stupifying templates that are the real culprits. Yes, studies have shown (mine), that the template is the hidden sugar that is making the bundles fat.

You will have observed, that there is no proposed word limit for a CAP or a CMO or (*gasp*) a judgment. There is also no proposed word limit for a Guardian's report (but then a more jaded person than I might say they don't really need one as CAFCASS officers who write proper reports have them butchered quality assured by their managers before release anyway in a supremely ironic piece of "proportionate working"). The bundle will never lose weight unless it cuts out the template fat.

So the President asks us this :

(i) is this desirable;

(ii) if so, should length be controlled by a page count or a word count; and

(iii) if by page count, are the suggested figures are appropriate?

To which I say : No, Neither and No.

In fact my actual unmoderated response to the word count suggestion was an unprintable expletive. If somebody would stop Local Authorities filing reams and reams of contact notes, case logs, single assessments and other computerised records in 9 or 10 point single spaced poorly photocopied wedges we would all care a lot less about an extra 200 words in a nicely spaced 12 point witness statement. THAT would be a bit of the existing PD that I'd quite like to see enforced. If somebody would stop coming down on Respondents for daring to file evidence that happens to tip the bundle into the red as a result of the Applicants having filed some ponderous but utterly unfocused gazillion page opening salvo and a monumentally repetitive care plan - then I'd be happy. I don't know who the President thinks is going to sit and count the number of bundling words in a potentially offending document in order to take a point on it, but it sure as legal aid is legal aid ain't gonna be me.

"Is that your best point Ms Reed?"

And I'm willing to wager it is also not going to be the judge cos I'm thinking that just possibly she might have something better to spend her time on. Like dealing with cases.

I don't even know how one would go about counting the words in a document other than manually given that most documents are delivered by scanned in pdf image files where it is not possible to automatically word count.

I get that the Pres has gone all "New Year's Resolution" slimming evangelist on us. But look, I've taken up running in Jan 2016 by way of following through on my Jan 2015 new years resolution. One thing at a time. PD27A is a pain in the behind. But putting your trainers on without getting up off the sofa does not produce results. The President says of the existing PD "Compliance with these requirements is still fitful". Aye. It is. Let us first get out the front door before setting new and unrealistic targets to drop from size lever arch to ringbinder by Easter. Ain't happening if you want to keep up the day job.

So no, having given anxious scrutiny to the proposal, I do not think word counts will promote judicial efficiency or morale and nor do I think they will improve outcomes for children. They will just make all of us die a little bit more on the inside, and make us a little bit more intemperate on the outside.

Should your Lordship not be with me on that argument, may I respectfully refer your Lordship to the skeleton argument of my learned friend @familybrief and adopt his proposal?

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Oh, there is also a bit in the consultation proposing that we should all go back to proper citation of reported authorities with headnotes and what not, rather than transcripts from BAILII. This is all probably very sensible, but is proposed without a hint of irony : generally law reports are rather more compact in their font size and layout than is required in relation to bundle documents, and the President himself is happily propagating vast amounts of material on BAILII which the law reports only manage to report months later, whilst vast numbers of litigants in person have no access to anything other than BAILII in any event.

PS If you had not noticed, I am very intemperate at present as a result of the stupid dry January and a self imposed chocolate ban. I have not lost a single pound yet. And I have been on FIVE whole runs in 2016 and everything. Hopefully though by next week I will be back down 2 dress sizes and able to fit into the pre-baby suits that i still have pathetically hanging in my wardrobe. Probly....

5 thoughts on “It’s January – we’re all trying to slim down

  1. Get yourself a gin and tonic – repeat as required – and a box of fine Belgian chocolate – demolish at a sitting – and bin the running gear.

    Then you’ll feel better.

    And if you are ever again tempted to engage in “healthy exercise” just lie down quite still and the feeling will soon pass. Believe me, it works.


    • Yes it’s all fine when I’m lying down – it’s when I need to get up and make my way to a destination or climb stairs that it becomes an issue…

  2. Given the satisfaction at “being satisfied that such direction is necessary to enable the proceedings to be disposed of justly”, what is the statistical measure of injustice currently dispensed due to unbridled documentation?

    I know that, for example, expert psychs are not supposed to recite medical notes but as they are often the only people that see them, it is v helpful when experts attach a summary of the GP records. These can be highly and unexpectedly relevant.

    My experience is that the bundling is becoming a rather tight squeeze.

    We can recall perhaps with some sympathy, Blaise Pascal’s famous “I would have written a shorter letter, but I did not have the time.” Short, concise and clear takes time, which none of us has. Though it must be said that most judgments are produced under pressure and are models of clarity and reasoning.

    Perhaps attendance at the judicial college should be an option / requirement for all family advocates and experts, not just the judiciary? With added CPD, the opportunity for improvements within the profession of relevant skills, diplomas even and certainly fee generation, it could become a model for family law excellence. So good in fact, that one wonders why it has not already been privatised – or perhaps it has?

    Lucy, what changes do you propose?

    • I propose that there is a general expectation that the parties should agree bundles that contain relevant material and not irrelevant material. And that the parties should be the subject of criticism if that does not happen. I DON’T think that requiring us to continually justify why we need key documents is helpful or effective in reducing the size of bundles OR in increasing the quality and conciseness of statements or reports. Its old skool and of course not entirely effective – but I just don’t see how mechanical limits improve things.

      • but of course a judge can quite properly say in any case that X is not relevant and should not be in the bundle. She does not need PD27A to do so, and should do so on a case by case basis under general case management powers. IMHO.

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