The theatre of legalese? Oh, please…

If you’re anything like me this headline got your hackles right up :

‘Is the theatre of the family courts – where legalese often takes over – really helpful?’

No, thunk I. It’s not helpful. But it’s also fictional. Who is this “young social worker” said to be “reflect[ing] on their first experiences in the courtroom”? I had my special patronising eye rolls at the ready.

But then I read it. And he has a point. Because, hackneyed and stereotyped as the headline may be, this young social worker was not speculating, but describing his actual experience (yes, yes the clue was in the strapline I quoted above).

He describes lawyers asking “multi-layered questions peppered with jargon”, wondering if there is a better way. Cringe. Yes, there is a better way – and most decent advocates know it. This should not be how it is in court.

None of us are perfect of course, though I have to observe that the social work profession may need to look at its own use of jargon sometimes too…it is quite difficult not to use jargon when asking questions about the jargon laden reports we are challenging.

Our young social worker goes on, with more descriptions straight from the Dummies Guide to Bad Advocacy :

Often under this questioning it feels that legalese takes over and facts and truth are distorted. Questions such as ‘It is right isn’t it that if we consider X, then Y must be true’ and ‘It is not the case is it, that this actually happened, and your version of said events was in fact false, yes?’.

Oh dear. We aren’t covering ourselves in glory here, are we? At least nobody said “I poot it too yoo…”. If this is an accurate account of the sort of questioning that is happening, we really need to give ourselves a detention.

I’m less sympathetic with the complaint that barristers were “targeting [his] relative lack of experience in years practising to discredit and unsettle” him. Whilst one shouldn’t do it just for laughs, it IS a legitimate line of questioning – and one which I have used on occasion to devastating effect – most often when a young social worker is dumped with something way beyond their competence. This is sometimes necessary. And it isn’t done just for theatre or for kicks. I can quite understand though, that the experience described of a barrister “wrongly surmising in her submission that [the social worker] was both younger than the parents and would in effect struggle to understand parenting” would leave the social worker feeling insulted.

Where I part company with the author of this piece is his criticism here :

I’ve also seen barristers chat and laugh about their private and social lives in the courtroom while families look on, unsure about whether this is correct or not. I felt it was a little farcical.

I’ve seen some insensitive lawyers, some insensitive judges and some insensitive social workers in my time. There is a need to have your antenna up. But I think that the idea that we should pretend we don’t have lives or children, and must completely compartmentalise our lives is naive and misplaced. Firstly, from a selfish point of view this is our workplace, day in and day out. And yes, in the moments between evidence we do sometimes exchange chit chat about the stuff that happens when we are not in court. The job we do is not often fun, and it’s important to retain some semblance of a normal life when possible. But more importantly, it’s also important to allow clients to see that those involved in the system that is scrutinising their lives are human too. And patronising to think they should be shielded by us being barred from normal social interactions. There is a limit of course – some things shared would be upsetting, some are just private and none of anybody’s business. So it’s important not to overshare, and to be alert to inappropriate hilarity or unprofessional remarks. But clients often want to know and are reassured by knowing that I have a normal life too, that I’ve got kids at home, that I understand its tough being a parent because I have my own home crises too. And a little light relief in a trial situation can often make the unbearable just about bearable – can soften the edges of the formal, adversarial court process that the social worker is complaining of. Clients often appreciate a bad joke or some banal chat about whats on the news or some trivial matter. The social worker says that in the court environment “you can share little, or no, communication often because of the context”. Yes the context is different, but the need to communicate as humans remains, and the court process doesn’t prevent that. Whilst clients may think it odd if opposing lawyers are too pally, it is not necessary to behave like sworn enemies throughout the proceedings. It isn’t a theatre, and we don’t have to stay “in character”.

Finally, he muses about the impact of the court process on the ability to work collaboratively with families :

In social work it is important to be collaborative and work in partnership with families. Is court a place where this could ever happen? How could one work towards the removal of a child, yet work in collaboration if it is done against the parents’ wishes?

And here I think he is muddling up two things : it is not the court environment which makes it a hard task for a social worker to achieve a collaborative relationship with parents : It is a feature of the coercive role a child protection social worker is required to play. I hope it isn’t too patronising to say to this young social worker : that’s life in child protection social work – it is very difficult to be their chum when you are asking to take away their kids. That is a hard burden to carry when you are young, passionate and idealistic and your motivation is to help families and children – but it isn’t the fault of the court or the lawyers.

For all that though, this article is a reminder that we could all do better to make the court experience less jarring, less discombobulating – more humane – for all those participating in it. Whether the participants are frightened and hostile parents, inexperienced social workers or anyone else. And from what this young man is describing we lawyers could usefully reflect on our own language and behaviour, and continue to work on it. It may not be a theatre, but there are always others watching our performance.

22 thoughts on “The theatre of legalese? Oh, please…

  1. With lawyers you know exactly where you stand. Rules are adhered to (mostly…I have seen them flat out lie, hopefully extracting apology from them made them think twice about doing it again), things are recorded / written down, there is clarity.

    The plea for a less legal more collaborative approach suggests a more free flowing, less rule driven way of doing things.

    Which is fine if all social workers were saints and got it right every time. In the real world neither of these conditions holds true. This allows malpractice and mistakes to creep in as they circumnavigate those drafted rules and regulations and injustices to occur. Which of course need the lawyers to step in and resolve in the courtroom…

    • It isn’t even about malpractice FamilyLaw_Dad (though that happens sometimes) – the forensic process and scrutiny of professional practice feels very uncomfortable for social worker and other professionals. But it is important both to uncover and to prevent genuine error of practice or of analysis – and to validate good practice and analysis too.

      • I’ve spent a working career founded on the basis of advice I received in my first week. It translates well into anything around court processes in this context.

        “Would you be embarrassed if this was on the front page of the FT [an email, a call, an action]? Could you explain it to the reader/journalist?”

        and if the answer is no…

        • well, I don’t read the FT, but the principle holds good. We say (of correspondence in the course of litigation) would you be embarrassed if this was read out in open court?

  2. Unfortunately I think this young man probably had a hard time in court, he was probably ill prepared for court. This speaks more about lack of training, adequate supervision and access to pre-court prep by in house legal teams

    • I am sure that is so, but it does sound as if he was also not shown a shining example by the lawyers of how it ought to be done!

  3. Lawyers and doctors are speaking a strange language! Always wonder if there is an alien somewhere!

  4. “… where legalese often takes over…”
    “discombobulating” = “confusing”

    You’ve made the case for this social worker. I had never heard the word “discombobulating” until I met it in the court arena. It is unnecessary obfuscation when dealing with people who are already confused and anxious. It demonstrates lack of empathy and understanding of the gravity of the parents situation when you treat the matter as just another day at the office.

    • Oh Brian, chill! Discombobulating is just a stupid word meant to introduce a bit of humour, and anyone reading this post is probably capable of googling it if they didn’t hear it before. And you do realise you followed up your criticism with use of the phrase “unnecessary obfuscation”, right? “unnecessary obfuscation” = “confusing” no?
      For us it IS just another day at the office. As I say in the blog post, we have to take care therefore not to be dismissive of other people’s pain and anxiety, but light relief, humour, normality are an important way of “getting through” for both lawyers and litigants. Frankly, if we all behaved like lawyer-automatons the whole way through a trial it would be an even more lonely awful experience.

      • Obfuscation is obscuring something, not making it confusing i.e. difficult to see, not difficult to understand. An example would be a secret code, once you have the key you can read the message. The content of the message may still be confusing, but it’s no longer obscured.

  5. I should think as a new Social Worker the experience cannot possibly be pleasant – to be put up there and basically have your personal credentials and specific work picked apart. To that extent I have sympathy.

    What surprised me about the article what that there seemed to be very little insight into the ‘point’ and usefulness of the family justice system. He seems not to take into account the utility of having Social work practice scrutinised by a Court and the legitimising effect that Court ratification then has.

    Ultimately the system isn’t about making anybody comfortable so much as it is about rigorously testing the state’s intention to severely intervene in the private lives of its children and parents. Where those two objectives conflict, the first must give way to the second.

    In any event, we certainly shouldnt be asking lousy questions in the style quoted in the article!!!

    A

    • Funnily enough I wrote a piece about that legitimising role for Community Care some years ago. but I can’t link to it as the community care site seems to be down at the mo.
      But yes, we should MOST DEFINITELY avoid the lousy questions!!

  6. I am not a lawyer, but I can’t really see how you could practice as one without asking questions in the form ‘It is right isn’t it that if we consider X, then Y must be true’ . Surely any attempt to draw inferences from evidence is going to result in questions of that form, and I thought that drawing inferences from evidence is what lawyers are supposed to do.

    • you are correctly describing the mechanism / route – but the mechanical phrasing of a question in terms of a clunky “I put it to you that if x is blah then y is so is it not” is both embarrassing and ineffective. questioning in the form of plain english and normal conversational phrasing is far more effective. such robotic questioning is a sign of nerves, laziness or of inexperience or possibly of a very weak case. We all craft better / less good questions in the course of a trial, and it is of course necessary to say “well you agreed this, so that must be right” – but the better way to do it is to break it down : do you agree x? yes. so you must agree y? erm oh…. rather than a convoluted algebraic question.
      drawing inference from evidence is what JUDGES are supposed to do – we merely set it up for them so they can see the evidence and where it points.

      • You’re probably right, most of the time. I am a geeky maths/computer science type person, so I get irritated by the vagueness of “normal conversational phrasing” and instinctively translate it into formal logic. If a lawyer put their questions too me in algebraic form I’d probably thank them for speaking to me in my own language. But I suspect I am the exception that proves the rule (to use one of those irritatingly vague conversational phrases)!

        • we law geeks and computer / maths geeks have much in common. similar logic / language skills used for coding and legal logic.

  7. Your important point about the need for more humanity in court leads me to remind readers that the FDAC (Family Drug and Alcohol Court) model succeeds in achieving this for those involved in care proceedings prompted by parental substance misuse.

    While most of the FDAC hearings are reviews without lawyers present, the judges operating this new approach extend their practice to the hearings in the case where lawyers do need to attend (1st and 2nd hearings, CMH, IRH). The key practice issues are about talking directly to parents, inviting their views and treating them with respect, and harnessing the expertise of social workers, guardians and lawyers in court to help motivate parents and collaborate in finding solutions when problems persist.

    To read about the experience and views of FDAC judges in SW and NW England see http://www.fdac.org.uk (scroll down to the news flash section).

  8. Winston Smith

    Lucy,

    one of the most shocking things about the family court is how the legals all sit around together chatting and worse still making jokes about the parents. Gales of laughter comes out of their little conference room.

    The parents and teenagers object too.

    The role of the social worker is supposed to be in a supportive role, helping and supporting families, not just to be a secret police grabbing kids, So this young man was right to object.

    • I understand that huddles of lawyers laughing may give entirely the wrong impression (for a number of reasons), but I very much doubt that it is the parent being laughed at (although I can understand why a parent might think this was the case). It would be better to avoid the impression being created in the first place of course.

Leave a Reply

Your email address will not be published. Required fields are marked *