Nothing to see, move along…(pseudo-post)

I wrote a long blog post with the above title. It was prompted by the recent displays of competitive outrage and rightness by legal twitter, although the post was not about such displays. It was about actual law and legal practice. I think it’s quite a good post.

But anyway, I’ve decided not to publish it. On reflection, I’ve decided that the world needs the benefit of my extensive ramblings less than it needs just one lawyer to shoosh. And I don’t want to be responsible for getting you all in a froth again.

Instead of what would (of course) have been a glorious blog post, you get the consolation of this one liner :

If you don’t want to be ‘nice’, be professional. And if you can’t be either (and it appears a few of you can’t), well – just hush now.

Recipe for the Perfect CPD Plan

Before I embark on making turkey risotto (we have passed through the turkey curry, turkey sandwich and turkey stock phases, only skipping the turkey pie phase because I can’t be bothered to make any pastry), I thought I would share my recipe for a great New Year’s CPD plan with you.

Some of us view food simply as fuel, whilst others see its potential to create happiness. A good CPD plan should be more than just fuel, box ticking, or compliance. It should feed your enthusiasm for the job and give you a balance of everything you need for the year ahead.

If you are one of those lawyers who is happy doing the bare minimum at the 11th hour, you are probably sitting through some very boring CPD videos and doing some tick box quiz whilst crying into your baileys. It doesn’t have to be like this.

Now that CPD plans have been deregulated you can basically put in anything you like, which is my kind of cooking – but a good recipe always retains some basic structure and balance. There are five key ingredients, which you can mix and season to taste :

  • Updating your knowledge of the law and procedure
  • Advocacy skills
  • Wellbeing and community
  • Practice Management
  • Ethics

1 First, take your area of law. I prefer family, but you can swap out family for whichever variety you choose.

2 Next, identify at least one blog or one new blog or podcast in that area of law that you don’t currently subscribe to. Subscribe to it, mark it on your plan and set it aside for later. If you are cooking a family law CPD plan you could subscribe to this blog, the Suesspicious Minds (which has a rich public law flavour, which is not to everyone’s taste), Transparency Project blog (written for the public but also secretly quite useful for lawyers) or Professionally Embarrassing podcast.

3 Take a look around your inbox, your practice group Whatsapp, your legal website, podcast or blog of choice (for websites I like Family Law and Family Law Week but other brands are available), and identify at least one major new statute to flavour your plan with, preferably one you know nothing about but which is looming on the horizon and is going to bite you on the arse if you don’t learn it. I’ve chosen the Domestic Abuse Act 2021 but you could use the Divorce, Dissolution & Separation Act 2020. Write it down on your plan like this : ‘Learn about the Domestic Abuse Act 2021’. Set yourself a timer – say, Easter 2022 by when you will have read the Act, dug out the related SIs and rooted around a bit to find articles and blog posts on the topic, to help you bring yourself up to speed.

You can repeat this process for each major new statute in your field if you wish.

4 Next, make space in your schedule to read the blog posts that will start arriving in your inbox every Monday morning.

5 For real depth of flavour I suggest you also identify one hot topic in your field of law – for example domestic abuse. Do some real reading around the procedural developments on the topic – even if you think you know it : case law, re-read the practice direction, read a practitioner textbook on the topic – try Malvika Jaganmohan and Rebecca Cross’s recent book A Practical Guide to Practice Direction 12J and Domestic Abuse in Private Law Children Proceedings. I guarantee you will learn things you didn’t know or re-learn things you had overlooked or forgotten.

6 Next, look in your pantry and identify one issue you either struggled to grapple with or had to bone up on last year for a case. You are going to either crack the issue you grappled with or write an article or blog post about the one you have already cracked. Add it to your plan. If you don’t have any issues in your cupboard, add them to your shopping list – you can add them later in the year – one is bound to crop up at some point. Make use of it.

Put the whole mixture aside to cool while you work on the advocacy skills part of your plan.

7 If appropriate to your chosen field book yourself on the next Advocacy & The Vulnerable Witness training course.

8 Next, make a commitment to attend at least one appellate hearing and at least one first instance hearing as an observer. You can either attend a public hearing at the RCJ, Supreme Court, observe a live streamed hearing, or attend a hearing remotely, for example in the Court of Protection. Tip : It doesn’t actually matter whether the appeal is in your area of law or not, what you are looking for is advocacy skills. How do other lawyers do it? How do they deal with their weak points and those tricky questions?

9 Now you are ready for your special ingredient : attending a private family court hearing as a ‘legal blogger’. This ingredient serves two functions – it will give you an opportunity to observe advocacy in a particular context and it will give you an opportunity to learn about how the process of a hearing conducted in private feels and looks from the perspective of an observer or a litigant, which is good for client care and general professional awareness. If you are a non-family lawyer looking in there may be unfamiliar smells and sounds  –  writing about how things looked to you and what stood out can help to start a dialogue about these different practices, why they have developed and what they add is a useful learning experience that can benefit both the insiders and the outsiders, benefitting the whole legal community and the process. To get a taster of how this can look see the Open Justice Court of Protection blog – all that sharing of perspectives and sharing of knowledge is a bit like a German Friendship Cake (but with less evil raisins).

10 Read a non-textbook book about the legal system – again it doesn’t need to be in your own area of law because the idea is to broaden your depth of knowledge and awareness of cross-specialism issues about rule of law, fair trial and ethical practice. You could read The Great Post Office Scandal.

11 Wellbeing is one of those things which is not a standout flavour but is baked in. I’m not going to suggest you add weekly yoga to your CPD plan, but I am going to suggest two things (other wellbeingy stuff is not the stuff of CPD plans) : invest in a supervisor (counsellor) who will offer you a safe space in which to vent and cry and generally work through the stresses and un-squareable circles that are life at the bar. If you hate it you can drop it. But give it a try. It’s tax-deductable. The second ingredient is this : only ever book on a conference you actually want to go to. Go either because the subject matter or speakers look really interesting OR because this particular conference will give you an opportunity to spend some quality time with professional colleagues. Don’t book on a dull looking conference that will be of limited use to you just to tick a box, and don’t book on a conference where nobody you know is going. That includes a conference which is technically in your area of work, but which looks so dull you just know you won’t listen to the speakers and you will never read the detailed speaking notes you bring back on the train with you. Just don’t waste your money. Only ever add conferences that will add to your knowledge base or your overall social connectedness to your professional community (unless you are one of those butterflies who can just make friends with anyone at a conference).

12 Finally (yes, we all leave this till last), stir in a bit of practice management. This will be very much to taste – it might be doing some learning about the software you use for bundle manipulation during a trial, it might be learning how to make use of that wretched software that is supposed to make your VAT returns easier or it might be updating the awful GDPR / Data Protection compliance stuff. Whatever it is that you need to learn to make your life easier, write it in your plan. Commit to doing it. Work out who can train you or help you – whether that is an outside provider, your chambers IT, a colleague or your neighbour’s dad’s sister. We all have one thing we are still a luddite at, so make your plan to fix one such thing this year.

13 As a final practice management / wellbeingy flourish, I like to write down my plan for how I will manage my own diary and work life balance this year. So, I will make space for one blog post a week (ha ha, very hypothetical), and I will finish crocheting that blanket, all whilst developing a fine Court of Appeal practice and taking each weekend off work. You can be as extravagant as you like here, but I think it’s best to be realistic. Make a date with yourself each week to review your diary and mark FIREBREAKS in it. Keep updating and reviewing them so you don’t get overloaded. Be realistic about prep. Communicate with your clerks about your goals and expectations. Be proactive.

14 Ethics. It never hurts to brush up on your code of conduct and the associated guidance. Have a root around the back of your lockdown cabinet and you will find some interesting oldies but goodies. Take this Guidance Note from the Bar Council on Media Comment for example – although it’s been on the shelf for a long time, and the original restrictions on media comment have long since expired, this one was reissued in 2020, so its still in date and can be added to your rounded professional mixture before baking. Without it’s rich, earthy ethical component your CPD cake may be lacking important layers of flavour and depth.

That’s it. If you’ve found all those ingredients and written them down, your plan is now ready. Simmer slowly for a year. Do remember to check and turn it periodically, rather than leaving it till half past November.

Right, I’m off to make my risotto. See ya in 2022, Turkeys!

Questions about hearings IRL

I’ve done a smattering of in-person hearings recently, though only one with live witnesses. In the course of that hearing one party was told off for using a mobile phone in the courtroom (not during evidence, I hasten to add). That party had been checking for an email relating to the evidence being given, something the might also have done on a laptop or tablet, had they had one in court for the purposes of taking a note. Certainly, such devices are now commonplace in courtrooms, at least on the part of lawyers if not lay parties. And, as is also now commonplace, within a minute of the judge having explained phones weren’t allowed in court now we were back in person, we all had to consult those phones in order to check our diaries to set the next hearing date.

Of course these sorts of contradictions existed before covid, but the rules of engagement are even less clear now than they were before.

Most judges know we could not have got through the last two years without liberal use of phones during hearings, to text, Whatsapp, ring or email our clients during hearings and in breaks during hearings. To reach them when their internet went down, to take their instructions when a surprising thing is said by a witness, to ask if they need a break or can mute their mic. At the start of these remote hearings judges are now adept at rattling off ‘the usual warnings’ about privacy and recordings. It was of course always possible (though I think uncommon) for hearings to be recorded pre-covid, and it was also a contempt of court for recordings to be made without permission. And the making of images in court has been a criminal offence since 1925, and has applied to the taking of photos through mobile phones since their invention. In-court communication between advocates or between advocates and professional client by email on their laptops has in reality been routine for several years. Judges must, I think, be aware of this.

And yet when I do go back to court IRL the signs on the door of the court remain the same ‘no mobile phones’. Of course almost everyone who sets foot in the courtroom has a mobile phone on their person, hopefully switched to silent. Two things remain clear :

  • making or taking a telephone call in a courtroom is not permissible (apart from those exceptional calls that a judge might request be made or permit to be made to track down a missing witness or the like);
  • a witness should not have access to a mobile phone whilst they are giving evidence. Arguably there might be a need to prevent a party listening to evidence from communicating with those outside the courtroom who are about to give evidence, but in reality a prohibition on mobile phone use is not going to be effective in that regard where the trial is multi-day.

I wonder how all this will work out when we are back full time? (I suppose it will happen at some point, even though it seems to be receding once again in light of Omicron). Will we still be able to use devices to ‘whisper’ between client and counsel? I think that would be far less obtrusive than the actual stage whispers we’ve been forced to try and decipher (and its always the comments you don’t want the judge to hear that your client whispers just a bit too loudly!), and far less annoying than clients having to throw paper missiles, issue a loud Pssst! or a repeated ‘Lucy… Lucy…Lucy’, or worse still poking you in the kidneys with a finger/pencil or pulling your jacket to get your attention. All to make a very important point* just as you are getting in the flow of your cross examination.

I don’t really see how permitting this to be done silently via screens would increase the risk of unauthorised recordings or a breakdown of orderliness in court (apart from the caveats above). And the more commonplace electronic devices are, the more odd it feels to restrict litigants from using them in ways we don’t do for lawyers. And I do think that, as we move back to in person hearings, judges are going to need to take care at the outset to explain what the in person rules are to litigants who have never known anything but hearings conducted with the use of – and through the medium of – electronic devices. I would like to hope that the ground rules are set out at the start of hearings so everyone knows what to expect, and so that sensible requests for permission to communicate electronically can be made. Unless expectations are set out, it seems inevitable that litigants and lawyers will get it wrong from time to time, as they try to adjust.

I’d like to think we can take the best of digital working and bring it into the courtroom. If and when we ever make it back. I’d be interested to hear what other people’s thoughts and experiences are.

*only occasionally important or helpful!!