Fighting the good fight

The estimable Bob was musing on twitter the other day, about lawyers who talk about fighting in court :

https://twitter.com/OnlyDads/status/1464127125712248835

Just in case that tweet doesn’t embed properly (I really should update my site, I know) his tweet said this :

“Saw a tweet yesterday from a family law professional talking about returning from court after a “fight”. The What about Henry training confirms the biggest problem for children in the context of divorce/separation is parental conflict. It should never be about a “fight”.”

Who could argue with that eminently sensible proposition?

You know the answer. A lawyer could argue with that. And so I did. Politely, and in a non-fighty sort of way. Because actually, whilst I agree with the sentiment behind that tweet – minimising conflict and discouraging a ‘fight’ mindset in clients is a good thing – I’m not sure it is *quite* the whole picture.

Wise Bob also said (again, rightly) that twitter isn’t the best place for discussions of this sort, so after a few ham-fisted tweets I decided to try a blog post instead, to try and articulate why it might be a *bit* more nuanced than Bob’s single tweet could capture (I am using the term nuance in its proper sense here by the way, rather than in the Nick Fletcher sense of the word).

So, where to begin?

The Bar Code of Conduct seems like a good starting point. There are lots of elements of the code that have potential relevance here, but probably the key parts are rules 15 and 16 :

“rC15

Your duty to act in the best interests of each client (CD2), to provide a competent standard of work and service to each client (CD7) and to keep the affairs of each client confidential (CD6) includes the following obligations:

.1 you must promote fearlessly and by all proper and lawful means the client’s best interests;

….

3 you must do so without regard to the consequences to any other person (whether to your professional clientemployer or any other person);

.4 you must not permit your professional clientemployer or any other person to limit your discretion as to how the interests of the client can best be served; and

rC16

Your duty to act in the best interests of each client (CD2) is subject to your duty to the court (CD1) and to your obligations to act with honesty, and with integrity (CD3) and to maintain your independence (CD4).”

 

In addition, rule 20 is useful when trying to run a case in a sensible way :

“rC20

Where you are a BSB authorised individual, you are personally responsible for your own conduct and for your professional work. You must use your own professional judgment in relation to those matters on which you are instructed and be able to justify your decisions and actions. You must do this notwithstanding the views of your clientprofessional clientemployer or any other person.”

I like to think of this as the ‘let me do my job without interference, you are paying for my good judgment here’ rule. It is handy when clients want to write your cross examination for you or instruct you to ‘draw blood’ (yes, they do sometimes do say awful things like that, though fortunately not often. If they do, they get a stern lecture from me on why such an approach is both objectionable and stupid).

Rule C7 provides that :

rC7

Where you are acting as an advocate, your duty not to abuse your role includes the following obligations:

.1 you must not make statements or ask questions merely to insult, humiliate or annoy a witness or any other person;

.2 you must not make a serious allegation against a witness whom you have had an opportunity to cross-examine unless you have given that witness a chance to answer the allegation in cross-examination;

.3 you must not make a serious allegation against any person, or suggest that a person is guilty of a crime with which your client is charged unless:

.a you have reasonable grounds for the allegation; and

.b the allegation is relevant to your client’s case or the credibility of a witness; and

.c where the allegation relates to a third party, you avoid naming them in open court unless this is reasonably necessary.

.4 you must not put forward to the court a personal opinion of the facts or the law unless you are invited or required to do so by the court or by law.

Finally, our duties to act with integrity include :

“rC9

Your duty to act with honesty and with integrity under CD3 includes the following requirements:

.1 you must not knowingly or recklessly mislead or attempt to mislead anyone;

.2 you must not draft any statement of case, witness statement, affidavit or other document containing:

.a any statement of fact or contention which is not supported by your client or by your instructions;

.b any contention which you do not consider to be properly arguable;

.c any allegation of fraud, unless you have clear instructions to allege fraud and you have reasonably credible material which establishes an arguable case of fraud;

.d (in the case of a witness statement or affidavit) any statement of fact other than the evidence which you reasonably believe the witness would give if the witness were giving evidence orally;”

So, whilst there are limits on how we do our job in court, we don’t have a duty to be nice (though polite is generally very effective, I’ve found) or to avoid conflict. We must act so that the proper administration of justice, access to justice and the best interests of clients are served (OC7).

And what we certainly don’t have is a duty to avoid dispute. Here is where I depart from Bob. Often avoiding or resolving dispute is in the client’s best interests, serves the interests of justice and is also in the interests of the other party and children. Win-win as they say (or least worst option all round, being more realistic). However, sometimes there just IS a dispute and it needs to be resolved. Sometimes there is a dispute because of our own clients obstinacy, idiocy or blind spot – if our best efforts to dissuade or counsel them to a more sensible course of action fail, we have a duty then to run our case on our instructions to the best of our ability, not a duty to roll over or to sit on the client until they give in (providing the case is properly arguable etc etc as above). Sometimes though, there is a dispute you can’t avoid because of the obdurate, ridiculous, unhelpful or ultimately unacceptable position of the other party. If, despite our best efforts to negotiate or nudge our opponent into adopting a more sensible approach they will not budge (or their client will not budge) then we may have to fight – yes, fight – and fight hard to protect our client from the actions of the other parent / party, which are out of our control. And (don’t wince Bob, there is no basis for criticising us for doing so, providing we stick to the ethical rules I’ve outlined).

I don’t shy away from or apologise for that. It is our role, and it is an important one. Take this example (I could give many others) :

A client is the victim of proven domestic abuse. The other parent is pushing for contact which she genuinely considers unsafe for her and the child, and which provoke observable anxiety. The other parent is making accusations of parental alienation and is relentlessly critical of her. He is asking the court to remove the child from her care and place the child in his care because (he says) she is manipulating the child into rejecting him. He does not accept the impact of his own actions upon her and in connection with the child’s rejection. She is finding the pressure of proceedings and constant applications exhausting, financially and emotionally.

Should I persuade her to roll over and agree to contact to avoid a ‘fight’? Would I be doing my duty to her if I did? Of course not. Should I ‘fight her corner’ and challenge the father’s case strongly and robustly? Yes (if she so instructs).

You can run a scenario in the opposite direction by the way and get the same answer:

A client has been accused of domestic abuse which he denies. The mother failed to prove the abuse and the judge found he was not abusive, but she persists in finding excuses to block contact. The child is now rejecting contact for palpably spurious reasons. The mother says that his application to court is an act of controlling behaviour.

Should I persuade the client to give up to avoid a contest? Would I be doing my duty to him if I did? Of course not.  Should I ‘fight his corner’ and challenge the mother’s position strongly and robustly? Yes.

Of course, in many cases findings have not yet been made and, there, it’s not my role to decide what is true and not true – and in any event many cases are far more nuanced than my hypothetical scenarios, even after findings have been made. So, of course I do explain to clients the risks and potential consequences or benefits of the available courses of action, so that they can make an informed choice – sometimes that does lead to them conceding or agreeing something that they are not entirely happy with, even something they are very unhappy with. Sometimes they instruct me to proceed, aware of the dangers. Again, that is the job : I advise, they decide.

Is avoiding unnecessary or unproductive conflict part of my role? Of course. It is in my client’s, and their child’s best interests. Compromise can be – and often is – a sensible way forward. Trials are unpleasant and costly and do not (often) help to facilitate future working relationships. It furthers the ‘overriding objective’, which I am bound to act in accordance with. Is avoiding dispute for the sake of avoiding dispute my role? Not at all. Save in the sense that in promoting fearlessly and by all proper and lawful means the client’s best interests in the course of a trial the parties dispute will be resolved by the judge, for better or for worse. Don’t forget, court process is a dispute resolution process, albeit a brutal one at times.

I’ll say this too : in most cases both parents do genuinely think that they are acting in the best interests of their child, even if their judgment is clouded by emotion or inexperience of how children can be impacted by adult behaviour. A compromise which you think might genuinely be bad for your child is a hard one to agree to. Sometimes compromise protects the adults (or one of them) but not the child.

I can think back to cases where I (or a predecessor) has prioritised compromise, ‘avoiding a fight’ – or where a fragile client has done so for reasons of self-preservation – and it can later come back and bite them on the proverbial. I think sometimes about clients who have been dissuaded (perhaps not always intentionally) from pursuing findings of significant abuse – and who years later are still embroiled in proceedings, still experiencing the after effects of the now ‘historic’ abuse that continues through the endless litigation, and which, because of a decision long ago not to ‘fight’ i.e. to try and prove means that the court is blind to their perspective (not to mention the actual risk). Our better understanding in the last few years of the pernicious effects of domestic abuse has taught me that great, great care is needed when trying to ‘resolve conflict’, so that we do not in fact sideline our client’s – and the children’s – best interests in the short and long term. Not all clients will be willing or able to ‘fight’ on these or other issues (i.e. to go through the process of seeking findings and proving the abuse), but sometimes they need to be supported to do so. This point goes wider than domestic abuse, by the way, but it is a useful example. Others might be where there is a serious safeguarding risk that is minimised by a parent, or where there is a binary dispute that just can’t be agreed without some third party (a judge) imposing a decision – typically relocation applications where the distance will inevitably have a significant impact on a relationship between child and left behind parent.

I suppose what I really want to say is that sometimes a ‘fight’ (in the non-violent sense of course) is unavoidable. Sometimes it is the only way to resolve something that is stopping people move forward. Whilst we deprecate domestic abuse, all couples argue. A couple’s pattern of arguing can become dysfunctional or abusive but in many relationships arguments are a natural and healthy way of resolving disputes and of clearing the air, even if they are unpleasant to endure at the time. So it is with court. A court ‘battle’ may be a solution of last resort, and so it should be – but I think we can manage both to regret it when couples cannot sort things out without the help of a judge, and to value and respect the court process as one means of dispute resolution, flawed as it is. This, by the way, is not a defence of the court process, because it is undoubtedly flawed for complex reasons I’m not going to explore here – some systematic and entrenched, others resource- or culture-led, and potentially changeable.

On one level, if I run a case through to a contested trial I have failed as a lawyer – by failing to persuade either my own client or my opponent to see sense before the big day – but the messy reality is often more complex than that, and much depends on just how wrongheaded the other party is (and, frankly, the quality of the advice they have received, which I can only ever guess at).

One further observation – prompted by a quote tweet from Audrey Ludwig talking about society instilling a duty to ‘fight for’ (and be seen to have fought for) one’s child.

https://twitter.com/AudreySuffolk/status/1464519082770894854?s=20

I see that very much in care proceedings where the battle is (usually) against the state in the form of a local authority / social worker (though often there is also a layer of antagonism between separated parents). Some parents fight because they are programmed to say the opposite of whatever an authority figure says, or because they are in pain or because they cannot accept responsibility for their own errors. Some fight because they really don’t see the strength of the case against them and just don’t understand why their child has been removed. Even those parents are entitled to have someone arguing their corner, inconvenient as it may be. Those of them that I represent go into such ‘fights’ with their eyes open (insofar as they have listened to my advice), and my advice will include a frank explanation of what it is like to give evidence and to be asked really challenging questions, or to hear a psychologist dissect your every intimate weakness and traumatic experience. But if they need to go through that process, should I stop them for the sake of compromise? Perhaps it would be in their best interests not to endure that, but is it ever in their best interests for their lawyer, the only person on their side to get all paternalistic and act contrary to instructions and concede on their behalf? No. Adults, even vulnerable ones, are entitled to autonomy in decision making. Bad decisions perhaps, but their own decisions at least.

Some parents in care proceedings fight because, in fact, the local authority is wrong, and they can care for their child – often they have made change which has not been properly acknowledged by a rigid local authority that has made up its mind. I’ve fought for those parents and got their children back and I don’t apologise for doing so. I’ve fought for those where its less clear that there is a strong case too, in just the same way – because ultimately it’s not my job to judge the merits. That is the judge’s job (clue’s in the name). Mine is to put their best case to help the judge to decide. Some of those turn out weaker than I’d thought, and some of them go on to succeed. If you don’t fight a case fearlessly you don’t know what is possible.

And finally, some parents fight because even though they know they cannot succeed in getting their child back, they need their child to know that their mother or father fought for them. That they tried their best. For some parents in challenging circumstances that is the only thing they can give to their baby apart from a name. I wouldn’t try to take that away from them by putting undue pressure on them to concede.

The quote tweet which finally prompted me into action this morning, was one from a psychologist :

https://twitter.com/psychrismills/status/1464278630431924229?s=20

Some lawyers undoubtedly do this in some or all of their cases – it makes for a very unpleasant job of work for everyone else in the case. All lawyers, I suggest, have done so on occasion. Good lawyers try not to and are alert to when this is happening. But I think there is a false link drawn in this tweet between us ‘believing that [our] job is about fighting’ and the problem of over-alignment with a client, which does not acknowledge how lawyers work (providing they maintain their focus on the obligations under the code and their professional distance). For my part, my job is not ‘about’ fighting. But it does, sometimes require fighting on behalf of a client : calmly, firmly, sometimes pretty forcefully. According to clear rules of engagement, and in a way that they are not equipped to do for themselves. An individual client may be motivated to harm the opposing party as a person (whether they know it or not): a lawyer’s role is to advise the client how to best advance their case, and that includes helping a client to see that their own anger or pain may be clouding their perspective decision making and that the rewards of using litigation to cause a person pain are elusive, short lived, expensive and often to the client’s longer term detriment.

So yes, ‘fighting’ is an integral part of the role of advocate – but it is not the whole job and it is not the purpose of it. It is a tool to be deployed with care and skill.

So, where has my longwinded ramble taken me? It has, I hope, helped me to articulate that there are some good fights. And that saying so does not mean that lawyers intrinsically embrace or encourage conflict (I can’t cater for the fact that some lawyers may do so some of the time), merely that we try to help people get through it and out the other side.

There is a separate point about how we use language in the presence of clients that may inflame or drive conflict (possibly the main point Bob was making to start with, and I’ve gone off on my own tangent). As I said in a tweet in response to Bob, I do use the term fight (or bunfight) when talking to clients – but usually in the context of seeking to explain why its a good idea to avoid one. And I might use it when I’m discussing my day with a colleague – because frankly, a difficult day in a trial, perhaps with a testy opponent, grumpy judge or difficult witness can be a bit of a fight in the ordinary meaning of the word. I don’t, of course, go around saying gaily ‘Right, let’s have a fight’ to a client, though I might reassure them I will fight for them when they are feeling vulnerable – having someone on your side for some of my clients is something they are not used to.

I’ve used ‘fight’ throughout this post because I am doing so in a context rather than flinging about a disembodied word, and I hope it can be seen it can be used without encouraging gratuitous conflict. I looked up the word ‘fight’ in the dictionary as I was mulling over this post and whilst the first meaning given is one which relates to violent conflict, it is a word with much broader and softer meanings too. It is a word I think that we all understand. It can also mean

  • a vigorous struggle or campaign for or against something,
  • an argument or quarrel,
  • a battle or war (A favourite of the tabloids when describing family court cases).

A vigorous struggle about sums it up for me. A vigorous struggle, constrained quite properly by our Code of Conduct and the court process. Discretion is of course, the better part of valour.

 

 

While you’re at it, boss…

In The Transparency Review the President says he is going to amend PD12G so that ‘Accredited media representatives and legal bloggers should be added to the list of those to whom a party may communicate information relating to children proceedings under FPR r12.75 (1), PD12G and PD14E.’

That’s good news, but in truth there is a lot more wrong with PD12G than suggested by this simple ‘fix’. Actually, let me frame that more positively – PD12G could be made much better than it is.

It’s got a long history.

Once upon a time the tables in PD12G were a part of the main rules. Eventually it’s tabulated list of people and purposes became too cumbersome to manage and it was hived off into a PD, and every so often it’s terms are expanded to capture something that it has become obvious should be permissible, but actually isn’t. Usually something that has been happening for years inadvertently or blatantly with various people turning a blind eye.

Going even further back, the precursor to rule 12.73 (from which rule 12.75 and PD12G hang) was old rule 10.20A of the Family Proceedings Rules. It was implemented as a result of the decision of Sir James Munby (as he then was) in Kent CC v B (RE B (A CHILD) (DISCLOSURE) [2004] EWHC 411 (Fam) [2004] 2 FLR 142) to render lawful that which Munby had said was a regular but inadvertent contempt precluded by s12 Administration of Justice Act 1960: disclosure between professionals in furtherance of child protection. That same decision also prompted amendment of s97(2) Children Act 1989 in apr 2004 so that the term ‘publication’ in the context of the identification of children as subjects of proceedings was relaxed slightly so as to bite only on publication ‘to the public or a section of the public at large’. Here the amendment was aimed at rendering lawful another inadvertent consequence of statute – parents being able to share the fact of proceedings with school teachers and the like.

So, in 2004 professionals and parents had been happily sharing information in ways that it turned out were technically unlawful. Rules were made to enable them to carry out these obviously unobjectionable acts lawfully. So it has been at various points since – PD12G now encompasses the right to pass information to an MP, to a legal regulator, to the Childrens’ Commissioner and various other individuals and organisations, for specified purposes.

The problem is there are still a whole host of things that ought to be included in PD12G in order to render them lawful that aren’t, and a whole load of things that people assume are permitted through PD12G but aren’t. Here are a few examples of what FPR 12.73 / 12.75 and PD12G don’t (or don’t obviously / clearly) permit :

  • there is no provision for parties to proceedings (or their lawyers) to tell reporters any detail of a case in order to help them understand what the case is about (as noted above), though in truth they very often do,
  • there is no provision for an expert to share their reports for the purposes of peer review, supervision, to professional regulators or insurers or to deal with complaints – even anonymously (lawyers can share with their regulators and insurers, experts can’t, and parties can share information in order to make a complaint against an expert – but if they share incomplete information an expert can’t share the balance. It is pretty clear, based on my experience that experts DO share their reports for such purposes, and I can’t really see it ought to be objectionable),
  • there is no provision for disclosure of the detail of court proceedings for the purposes of anonymous surveys, or interviews in qualitative research studies except where the study is an ‘approved research project’ as defined in the PD, which is often NOT the case (I know this, I’ve checked a number of them),
  • there is no provision for survivors of abuse (or false allegations) to share the contents of a fact finding judgment with a support group or organisation.

On this last point, in fact PD12J in fact requires findings to be set out in the court’s order. Since s12(2) dis-applies the contempt provisions of s12 from the order itself, this would mean that if PD12J were adhered to the order could be shared by victims in order to secure non-legal support. However, this part of PD12J is actually honoured more in the breach in my experience, and particularly post Re H-N where schedules are now out of favour, the order would really need to incorporate the narrative of a judgment for depth of understanding in order to be of much use. So, arguably, PD12J ought to be amended to provide for inclusion of the judgment rather than just any schedule or summary of findings. However, it would probably be more simple to amend PD12G than to leave the ability to share a judgment contingent on whether or not that judgment is actually incorporated into the order by an overworked lawyer.

Needless to say, there are similar issues with the sister PDs on Communication of Information in relation to other sorts of information – PD12E, PD9B etc, which are considerably more restrictive than the unwieldy PD12G (but which also relate to other sorts of proceedings where s12 Administration of Justice Act 1960 generally does not bite or where there are particular reasons to heavily restrict release of information).

There are probably other sorts of disclosure that aren’t permitted by the PDs, but which could or should be permitted – above and beyond those I’ve set out. It would be great to see a more thorough review of the PD whilst it’s being tinkered with for the purposes of the Transparency Review (I mean, it’s not like The President or the Rules Committee have anything else to do – ha ha).

So, while you’re at it boss…would you mind taking a look?

 

The micro-politics of email

Grrrrr, but it’s impossible. One thing I don’t need on top of all my work stress is feeling guilty for contributing to your work stress because I sent you an email at the wrong time. These rules about when the sending of emails is forbidden are well intended but, I have concluded, counter productive.

Mea culpa – I have been inconsistent both in my views on these things, and in my application of my own self-set rules and those notionally imposed upon us. No doubt I will continue to be so. I am at least consistent in my inconsistency.

[Post-script – I wrote this post a coupla weeks ago. I have indeed continued to be consistently inconsistent, and have been happily sending emails all weekend because, well, no I’m not going to pretend I somehow managed to read that brief or do that short notice task in the working week when that is OBVIOUSLY not possible. Pretending I have some magical ability to be at court all the normal working hours AND absorb new briefs simultaneously or whilst I sleep is another sort of dysfunction masquerading as good manners or pro-wellbeing behaviour].

I said notionally, because these rules are largely ignored [post-script, last week was a blur of late night emails in the run up to an appeal, we all gave up apologising in the end], so any potential they might have to change culture is lost. But I try hard to be a part of that culture change and thus I try hard to follow the guidance : no late documents, no emails after 6pm.

Nothing in this post is any sort of manifesto for solving these issues. All this post amounts to is an expression of chronic malaise, and of weariness at never being able to get it right. ‘It’ being work-life balance (on a macro level), and the timing of emails (on a micro-level).

Truth be told, attacking the wellbeing crisis by attempting to regulate our email hygiene is like rearranging the deckchairs on the titanic. It doesn’t reduce our workload or the numbers of emails that require to be sent. But it does add to our guilt levels.

Sometimes, in spite of all my planning and good diary and time management I cannot finalise my prep or document before close of business. Sometimes I have to work on a weekend. (Who am I kidding – not sometimes – often). There are myriad reasons why, mostly outwith my control.

Should I send my document or query as soon as I am able, or hold off because of a diktat until the next morning, when the recipient will have less time to consider and respond to it? I have been trying to remember to schedule emails for first thing the next morning or, on a weekend for first thing on a Monday – thereby keeping to the rules, whilst also avoiding the risk I will forget to send the email if I leave it, and thus managing my own anxiety. But sometimes I forget. And sometimes I calculate its actually necessary or better for the recipient to send it now.

The truth is my opponent is probably in the same boat as me. They may prefer to work in the evening when the kids are in bed and may have valued the opportunity to see my document and have time to sleep on it. In being ‘helpful’ by withholding my document I am robbing them of that opportunity.

‘Yes’ (says the devil on my other shoulder), ‘but in sending it you are putting pressure on them to read the email at an anti-social time’. You know what? I think I’ve actually reached the view that I am not responsible for someone else’s working practices. Nobody can change this but each individual. All my emails are sent with a message that explicitly says there is no expectation my message will be read or responded to out of hours. And I think I prefer sometimes to give people a choice. They are grown ups after all. Dysfunctional grownups, I’ll grant you. We all slip into email exchanges late at night which sometimes could really wait, but…

I have become really fed up of late at the gnawing guilt this change in email culture inadvertently creates when I hit send late at night having forgotten to put a delayed send on – what is this pretence? I find myself spending time wording my email sent on a Sunday night to look as if it was written on Monday, or explaining that it was prepared on a Sunday but queued, just in case it is superseded by someone else’s queued email that arrives first. These are just games designed to make someone feel better, but that someone is not me. Maybe the only result is that the recipient wonders how come it is only them who was working at the weekend and why they aren’t as efficient as the 8am on a Monday emailers? Maybe they just roll their eyes, correctly guessing that I am just pretending to be in control of my work-life balance, and wishing I’d sent them the blinking email the night before when they were wrapping up their own prep.

I work evenings and weekends. I try not to, but I do. There is no point pretending otherwise and it isn’t going to fundamentally change – though I continue to strive to reduce the extent of it. In future, unless my email is something which is not particularly time sensitive and can be happily queued until the next day / Monday, I’m just going to send it when its finished, and I’m going to give the recipient as much time as I am able to read and respond. I do so in the knowledge that realistically (whatever we pretend) my opponent may also be working in the evening. In doing so I am going to treat them like a grown up who can make a choice as to whether to ignore a message till morning or whether to deal with it immediately. Late night emails from opponents are annoying, and we all hate bombshells dropped before a hearing – but if I’m going to receive one, I’d rather have a late night bombshell than an 8am bombshell.