Pink Tape is written by Lucy Reed, a family law barrister. In this blog you will see me identified as ‘Familoo’ I have been at the family bar for over a decade and am still amazed at how little most people understand about the work that I do and what goes on inside the Family Courts.
Zoe Saunders (@zasaunders) kindly reviewed the Secret Barrister's book for Pink Tape recently. Now she's only gone and managed to get an interview with SB him/herself. Before you all rush to press Zoe for the name and gender of SB, I am reliably informed that Zoe hasn't *met* SB, but s/he has provided answers by email. Some of you may be suspicious that this inteview is in fact all a cunning ruse to distract us from the real truth, namely that Zoe is in fact the Secret Barrister (@barristersecret). But I'm pretty sure you'd be wrong....
The highlight of this interview, is the bit about the Daily Mail review of the book - I'm most tickled by the idea that the next reprint might have this on the dust jacket :
"...of some brilliance, clearly explained, cogently argued...Its main distinguishing quality, though, is its absolute reasonableness..."
THE DAILY MAIL
Anyway, thanks to Zoe and to SB, whoever you are... Without more ado here is the interview.
Disclaimer : it isn't really *cross* examination, but then all the best cross examination avoids crossness....and I needed an interesting title...
ZS : How difficult is it proving to remain anonymous?
SB : So far, so good. I live day-to-day with the constant low-level anxiety that I'm a minute away from my senior clerk calling to ask me if this rumour they've heard is true, but as yet I've remained untroubled. While there's understandable curiosity, I think - or at least hope - that people have accepted that there's really nothing to be gained from knowing who I am. I'm genuinely not anybody interesting, and all that revealing my identity would lead to is a raised eyebrow and an anticlimactic "Oh." Like finding out how a magic trick is done. But less interesting.
ZS : Are you not tempted to reveal your identity?
SB : Absolutely not! At present I have the privilege to do my day job, which I love, and my writing/blogging, which I also quite like, but I don't think they could coexist if my identity were known. Anonymity buys the freedom to be candid and to write independently, without one eye trained on the implications for my practice or my instructions. Realistically, if my identity became known, I think I would have to give up either the writing or my practice, neither of which I'm inclined to do at present.
ZS : Has anyone recommended your own book to you yet?
SB : One or two people. I nearly received a review from my opponent in a recent trial, who asked if I'd read the book, and, when I mumbled something about having heard of it, turned to me conspiratorially and said, "Well, I'll tell you this. It's not very..." At that point, the judge walked in, we snapped to attention and the moment was lost. I spent the rest of the trial wondering what adjective would have completed the sentence.
ZS : How does it feel to have had your book sent to every MP?
SB : A little mind-blowing. I'm stunned by the generosity of all of those people - not just lawyers but concerned members of the public - who supported the book and contributed to the Crowdfunder to buy a book for every MP. The Solicitor General said at the Young Bar conference last week that all the legal officers in government have now read it, which is fantastic (if terrifying), and a number of MPs have tweeted to say that they have read or are reading it.
ZS : Do you think that things are likely to improve at the criminal bar?
SB : In the short-term, no. But the next 12 months will I think be critical. We have strong leadership at the CBA, and we are assured that the MoJ is constructively engaging for the first time in recent history. We have been burned many times before, so I am counting no chickens. But if things go well, we could lay the groundwork for medium-to-long-term improvement. The level of fees, and the recruitment and succession crisis, is an obvious problem. But the broader issue of the funding of the Criminal Justice System across the board is something which the MoJ now know we will not let lie, as this not only leads to the diminution of justice, but exacerbates the other, less tolerable aspects of criminal practice; the hours, the treatment of professionals by courts and (some) judges and the stress of doing your job with both hands tied behind your back.
Next year's spending review will be an important litmus - will the MoJ, for the first time in a decade, fight for increased spending on the courts, Crown Prosecution Service and legal aid? Or will it meekly accept its place as poor relation of the welfare state and offer up the justice system for further cuts?
ZS : Any advice for someone considering becoming a criminal barrister?
SB : The advice you will hear from most, which I heard a decade ago coming to the Bar, is "don't do crime". But I wouldn't echo that. Crime needs good people. And, for all its horrors, there is a reason many of us are still plugging away. It's fascinating and rewarding and all the other cliches you trot out at pupillage interviews. So I would say do it, but go into practice with your eyes open to the realities. You will not earn very much money (and at the start will be paying to work). Your social life will be a distant memory. But no working day will ever be dull.
ZS : Have you had any abuse as a result of your tweeting and blogging and if so how do you handle it?
SB : Oh, lots. It's the inevitability of expressing opinions on the internet. There's a hardcore loyalist "legal aid fat cat" brigade, who refuse to accept that the thousand pounds their mate paid to a commercial barrister does not represent the hourly income of a criminal legal aid lawyer. There are your garden variety racists and misogynists offering their own inimitable analysis on any legal cases in which they perceive the race or gender of the defendant/victim to be relevant. Right now, one of my weekly chores is weeding my blog of comments by Tommy Robinson fans who, outraged at my blogpost criticising their cause, and even angrier at the fact that comments are disabled on that particular post on my blog, have taken to spamming every other (unrelated) blogpost with their worldly views on Muslims, paedophilia and "abuse-enablers" like me and my legal ilk.
Handling it is no doubt far easier for me than for those brave enough to post opinions under their own name. The threats are somewhat denuded when you know that the maniacs have no actual idea who you are. Obviously, I'd rather not have to sift through those sorts of comments, but anonymity at least affords some distance.
ZS : Tell us about the best bit of feedback you’ve had?
SB : While lots of people have said lots of (undeserved) lovely things, the feedback that I enjoy the most is from non-lawyers, particularly those who say that they have had their preconceptions changed on an issue by reading my take on it. The crisis in criminal justice stems from the lack of public understanding of where the problems lie; reaching people who either haven't really thought about criminal justice, or have views on the subject informed by tabloid myths, is going to be key to turning the ship around. To that end, while it's difficult to select just one, a standout review for me personally was the Daily Mail's review of the book. To have what is essentially a polemic against the policies that the Mail has championed for the last decade described as "of some brilliance, clearly explained, cogently argued...Its main distinguishing quality, though, is its absolute reasonableness" is something that I had not expected.
ZS : How did you manage Stoke Newington Festival without being outed? Have you had any near misses? Would it matter if your identity became known?
SB : I appeared at Stoke Newington virtually over Twitter, which is how all of my "public" appearances have been conducted. Either my Twitter feed is beamed onto a back wall or I tweet and DM the chair to read out my answers, and all can be done from the comfort of my study. So happily, no near misses. Although, for the reasons above, I would not want my identity to become known.
ZS : Where do you see yourself in five years?
SB : In a fantasy world, still writing and practising in tandem. If things go wrong, I'll be that bedraggled figure in the park shouting at fleeing passers-by about how I used to be a barrister and bestselling author.
It's ironic that some weeks after the publication of the Bar Council's Working Lives Survey I've only just managed to scrape together enough time to knock up a blog post to say 'Damn Right we're stressed and overworked!'...
I'd have written it last weekend but I was working (same for pretty much every evening last week). I'd have written it on Friday but I didn't get home till after 8pm because I was so shattered that having left chambers I realised I'd left my car keys behind and had to catch a train and then cadge a lift. I'd have written it last night but I conked out fully clothed at 8pm and woke up 12 hours later. Until this evening though, I've enforced a 'no work' rule all weekend - because frankly I'm so cream crackered I can't see straight and my family are showing signs of normalising my increasingly frequent weekend absences. Weekends in our house now begin with 'I know its the weekend mummy, but are you going to be here today?' (delivered with big, gorgeous eyes locked on mine).
So yeah I'm #sorrynotsorry that you've not had this before. Blogging is not top of my priority list. Suck it up lovely bloggees.
So. (I'm rambly when tired...) Here is the Working Lives Survey. 23% of respondents practiced only family law. 48% of respondents (just under 2000 respondents) practised in more than one practice area.
Here are the key points for me :
There is a clear difference in views about working lives between practice areas, for example criminal and family practitioners were more negative about their working lives than those in commercial or chancery practice.
Workload, stress and work-life balance were worse in 2017, than in 2013.
Only 45% of barristers said they could balance their home and working lives satisfactorily, down from 50% who said they could in 2011.
Barristers practising in criminal and family law said they were struggling the most with work-life balance - 48% of criminal and 58% of family barristers said they could not balance their home and work lives adequately.
Criminal practitioners (50%) and family barristers (62%) are more likely to indicate that they are emotionally drained by their work.
In terms of work pressure, 58% of criminal barristers and 66% of family barristers said they felt under too much pressure from work.
Across the whole Bar, only 26% of respondents said they were not under too much pressure from work in 2017, compared with 34% in 2011.
So it's all pretty gloomy right. And it's particularly crappy for the criminal and family bar. And it's getting worse. No surprises.
There is a lot of focus at present on the situation for the criminal bar given the current refusal to take on post 1 April work, the public attention generated by the Secret Barrister book etc. Rightly so, because things are pretty dire on a number of fronts. So a lot of the coverage I've seen on this survey so far is all about how it confirms how bad things are at the criminal bar.
But as this is a family law focused blog I wanted to draw out the fact that family barristers were even more likely than criminal barristers to say they couldn't balance their work and home lives than the criminal bar. And family barristers were even more likely than criminal ones to report feeling emotionally drained, and under too much pressure from our work.
That is really worrying. It ISN'T simply explained by the fact we deal with horribleness and child abuse - so do most of the criminal bar, and I dare say some of the horribleness that they deal with daily is more traumatising and emotionally taxing than the 'run of the mill' horribleness that will make up most of the family bar's daily fare. We both deal with a mixture of the sad and the bad, with a tendency towards a diet more heavy on the latter as we get more senior. So I wonder where this discrepancy in our responses comes from?
Maybe we're softer. Or maybe we're more 'in touch' with our feelings, our stress, the effects on our family and our relationships of doing a hugely intense job with f*cked up hours, of not being 'emotionally available' for your children - because we see that every day. Maybe. I'm not completely convinced by any of those hypotheses.
Maybe it is just that everyone in the family justice system seems to be under increasing workload with dwindling resources. A couple of days before I saw this report I found myself commiserating with another (female) colleague in chambers one evening when we were still working and we had missed yet another dinner or bedtime, and finding we both felt that we were spinning too many plates and that our usual techniques to manage and predict workloads sensibly were just ineffective. We're all doing too much. The statistics and the Care Crisis review bear out that the workload just keeps going up and up but we've all been busier than ever for months. It's easy to say that we have a responsibility not to take on too much, to say no. That is true, but there is something creeping and insidious about how we are all working at breaking point. Before you have realised it you have more plates than you can manage and whilst your back is turned to deal with one plate someone else starts another plate going.
I've turned work away. i've booked days out to recoup or to prep between trials. I've told the clerks - no more. But the demands associated with each brief, each hearing are so much greater than they once were. They mushroom without warning....The workload between hearings (usually unpaid) when there is a development. The urgent hearings that are scrambled when a wheel falls off a wagon, the late telephone calls squeezed in where there should be a bedtime or a lunch break or a quiet coffee before the day begins. The late or missing papers arriving in dribs and drabs and in one big chunk just before the hearing which everyone knows will have to be read after the kids are in bed and into the wee small hours, when other people are having a life or watching Bakeoff or Coronation Street (or whatever the hell is on the telly on a week night - not a clue). Each extra task, each written document we are expected to prepare to help drowning judges manage their caseloads is a step towards the brink for us. The skeletons, chronologies, case outlines, draft orders, attendance notes, draft LOIs...the incessant email exchanges...they are eating up our lives.
We barristers respond instinctively to an enquiry about how things are with 'busy', because busy means in demand and that means successful. But there is such a thing as too busy and we shouldn't wear it as a badge of honour. My diary is now on lockdown until the autumn. I will manage my current caseload. But then I am going to have to find some new ways to claim back my weekends, my holidays, my life.
Two professionals in cases I have recently worked have ruthlessly implemented a policy of not reading or dealing with emails outside office hours. For a split second with each I was affronted that they hadn't answered my very important email in time for the wagon to run on without stopping. But only for a second. It will be no surprise to hear that these boundaried professionals weren't lawyers.
I'll confess I'm not ready to crusade for an email and telephone curfew, but I sort of wish someone would. What would happen if we all said : 'It's 6pm I'm off duty. I'll deal with it at 9am'. You know and I know what would happen : Everything would grind to a halt. Deadlines would be missed. Cases wouldn't be ready. All hell would break loose if we did this for even a week.
The system is utterly and totally dependent on the near burn out of those who work in it. How should I explain that to my children with their big, gorgeous eyes?
This is a guest post by barrister Zoe Saunders. Zoe tweets as @ZASaunders.
Unless you have been living under a rock you will have noticed that the Criminal Bar are on strike over yet further cuts to their already inadequate pay. You may also have noticed that lots of criminal trials seem to have imploded over failures of disclosure by the CPS and this seems to have caused a bit of a fuss. You will probably have heard mention of the Secret Barrister in relation to one or both of these, so who is he / she and what do these things have in common?
If you follow any lawyers on twitter you will already be familiar with the Secret Barrister who is often retweeted for their insightful comments on criminal cases that hit the media, demolition of the Daily Fail’s usual headlines about X criminal ‘getting £XXX,000 from legal aid for blah, blah atrocities etc.’ not to mention amusing analysis of 80’s pop tunes.
I don’t know who the Secret Barrister is and anyone who does isn’t telling (yet…). Whoever they are they are going to fairly serious lengths to keep their anonymity for as long as possible (insofar as such a thing is possible these days) on the basis that they feel that what they have to say is better said from a nameless faceless everybarrister perspective rather than being connected to them and their specific practice. They explain this much better than I can here. There are already bets on over how long they can maintain their anonymity as most other ‘secret’ bloggers, commentators or authors have eventually been outed when they became sufficiently well-known, e.g. Belle De Jour amongst others.
Before getting into my views of the book I should probably clarify that unlike a lot of family barristers on circuit I have never done any criminal work, not even in the Magistrates Court. I knew (or thought I knew) a bit about the lot of the criminal bar generally after a stint on the Bar Council, but I am lucky enough to have never been involved in a criminal case personally or professionally and the rare occasions on which I have set foot in a Crown Court have involved family cases with prisoners which necessitated a change of venue but otherwise business as usual.
So what is the book about? The Secret Barrister says that the aim is ‘to explore why criminal justice matters, and to show how I think we are getting it so wrong … my fear is that the public’s lack of insight into our secretive, opaque system is allowing the consecration of a way of dealing with crime that bears little resemblance to what we understand by criminal justice. That defendants, victims and, ultimately, society are being failed daily by an entrenched disregard for fundamental principles of fairness. That we are moving from a criminal justice system to simply a criminal system.’
I must confess that at this point of the book I rather rolled my eyes and thought this was all a bit overblown, but I was wrong. By the end of the book I re-read that paragraph and thought it could even be seen as an understatement. I guess my view of the book as a whole was I knew it was bad, but I didn’t think it was *that* bad.
The book is loosely structured following the life of a criminal case and is an engaging mix of history, explanation and anecdote. It came as no surprise to discover that the Secret Barrister is just as fond of the Magistrates Court as most family lawyers and that in the criminal sphere they display the same wisdom and insight for which they are most cherished by us family practitioners. Of course the key difference is that the consequences for those who come before them in a criminal context are serious, although I am not sure that I would under-estimate the impact of Magistrates’ decisions in family cases where they control people’s ability to see their children and to raise them as well as now being empowered to deal with injunctions to protect victims of domestic abuse. Like the Secret Barrister I am afraid to say that the worst injustices I have ever witnessed have been at the hands of lay Magistrates and I entirely endorse their concerns that the growing emphasis on the use of Magistrates is about cost not justice.
Speaking of costs it is in bringing home the horrendous impact of cuts on the criminal justice system that this book really comes into its own. Even I was shocked by the extent to which chaos and inefficiency in the CPS and the courts is caused by resource issues and the impact that has on the system’s ability to deliver justice. For me it had uncomfortable echoes of the difficulties that Local Authorities have suffered in child protection work periodically caused by lack of resources.
My experience of Public Law work was a gradual decline in resources leading to problems bringing and running care proceedings until the tragic and preventable death of a child hit the headlines and then money was thrown at child protection, work loads almost doubled and panic ensued, until gradually the panic wore off and we were back to gradually declining resources. The descriptions given by the Secret Barrister of trying to get the CPS to produce basic pieces of evidence so that they could successfully prosecute a violent perpetrator of domestic violence reminded me forcefully of similar attempts to try to prevent care proceedings careering off the rails.
Similarly the ‘what about our statistics?’ Anecdote reminded me of the time that I insisted that if, at 19:00 on 23/12, the finance manager was the one saying that a mother and baby foster care placement was not available locally and there weren’t the resources available to fund one privately then he had better be the one to come to court and explain it to the judge, and yes that means this evening. Funnily enough the funds for a placement were suddenly made available.
The decimation of solicitors firms carrying out publicly funded work is a huge problem in family law as well as in criminal law work. At the moment with consolidation, expansion and diversification most firms are just about managing, but it is only a matter of time.
The criminal justice system is the canary in the mine for publicly funded family justice and the Secret Barrister is hammering on the alarm bell. We ignore them and the plight of the criminal lawyers at our peril.
No. I won't be sending you a stupid GDPR email even though you have not heard from me for over a decade and are pretty sure you never bought anything from me in the first place.
No. I won't be sending you several reminders to check if you're really sure about the withdrawal of consent I've just pointlessly procured from you.
No. I won't be doing any of that (You're welcome).
I have (finally) added a damned cookie thing on the blog, but I hope that's a minor irritation amidst a sea of GDPR lemmingitis. I'm not completely convinced it is really necessary, but hey. Click it and it will go away for ever, I promise.
In fact I've been told off this week for NOT sending out my Monday morning emails. So Rebecca, this is your fault.
In other 'what is the world coming to' news, HMCTS security continues to delight and entertain us with it's popular confiscation roulette. Confiscation of ipad stands is last week's special - this week's was the confiscation of an advocate's high heels (and somewhat more unsually a septagenarian's cake slice). Back in the West Country however, my opponent trotted back from the coffee run in high heels with a massive borrowed metal roasting tin full of half a dozen lattes, unhindered by security staff. Neither the heels, nor the tin were confiscated as potential weapons, and nor was she required to sip or prod the froth on any of those coffees. For lawyers, who value consistency and predictability above much else, this is a cruel and unusual punishment indeed. We wince when our shoes are confiscated. We wince when they are not. These small daily trials of pointless arbitrariness and caprice have us lovers of logic and rules unhelpfully tense and ruffled before we've even crossed the threshold. The CEO of HMCTS is still gamely promising ID cards for us.
It doesn't get any better once you're in. The MoJ has put together some excellent public information materials for the unsuspecting litigant in person (pics thanks to @itsdavegreen). Of course, when I say excellent I mean utterly daft. And just plain wrong. Who knew that barristers give evidence on behalf of their clients? And who recognises the depiction of a courtroom populated with barristers AND solicitors and entirely devoid of mckenzie friends or litigants in person... Admittedly everyone is slightly green looking, but I don't think that is meant to be a visual pun...
Other obvious flaws in the poster (apart from the fact it clearly doesn't describe the shape of many family court hearings where there are more than two parties and a bench) are :
the fact that anyone is physically in a courtroom at all - wot no video links?
litigants in person will be unable to identify from the poster which of the lawyers are barefoot
although the posters probably meant to show equality of arms in action, there is a notable absence of any limbs at all. An armless omission perhaps...
I'm hoping that the fact there seems to be single advocate for both parties is not portentous...
I wonder how many green lawyers at how many hearings the money spent on those posters could have paid for?
Anyway, in acknowledgment of the fact that this is a somewhat lacklustre blog post, do feel free to click unsubscribe if on its arrival in your bank holiday inbox you feel the need to cut me out of your life... *sniffs*
And if you have just arrived her under your own steam and think 'Meh' - well, you know... Maybe don't subscribe to my Monday mailshot.
Last week District Judge Read (no relation) published a shocking judgment. I have been thinking about it a lot, waiting for enough quiet time to write down my thoughts about it. I am very bothered by it.
In the meantime a number of others have written their own posts on the judgment, and I link to some of those at the end of this post. The case has also, belatedly, made the BBC news.
District Judge Read was tasked with conducting a fact finding hearing in relation to allegations of domestic abuse including rape, made by a mother against a father. He had to make findings one way or another as a basis from which safe decisions about contact could be made. Neither parent was represented (they were not eligible for legal aid), and so the judge undertook questioning himself, working from pre-prepared questions submitted by the parties. Or he would have done, but for the fact that the mother was too stressed out to prepare any questions for the father, and left the witness box half way through questioning and would not be persuaded to return.
The upshot was that the judge felt unable to make all of the findings as some of the evidence had not been tested. He said this :
I am in little doubt that had one or both of these parents been represented, the fact finding process and probably the outcome would have been very different...
the lack of legal representation gravely affected the fairness and efficiency of the process of questioning both parents. So far as my role in this was concerned, although I did my best to abide by the guidance in PD12J at paragraph 28, I was hesitant about participating in this way, being reluctant to be seen to step into the arena myself. Ours is an adversarial (i.e., led by opposing parties) not an inquisitorial or judge-led legal system: judges have neither the training, tradition nor natural inclination to subject witnesses to detailed questioning...
No English or Welsh criminal court would proceed as this court had to, in the absence of representation for parties dealing with such grave allegations...
I therefore think there is a very strong likelihood that the outcome of the fact finding would have been different, and most probably a truer reflection of what really happened, had the parents been represented.
He also said that there was no bundle, police disclosure was a mess and the mother had been unable to prepare questions without the help of a lawyer.
The judge did make some findings of domestic abuse, and based on those he said that :
There is always the fear in the mind of the Court that the questioning of an alleged victim about their abuse merely prolongs that abuse by other means. Given my findings in this case, limited though they are to only the first few allegations, I think that fear is borne out here.
Basically, the judge is saying that the cross examination (even through the judge) was abusive.
For me the most striking passage is this one :
I therefore think there is a very strong likelihood that the outcome of the fact finding would have been different, and most probably a truer reflection of what really happened, had the parents been represented. [underlining my emphasis]
I have struggled to read this in any other way than as an acknowledgment that the judge believed (at least some of) the further (more serious) allegations, but didn't feel that he could legally 'find' those allegations proved because of the limitations of the process.
I am surprised that the judge did not give both parents permission to appeal.
When I read this judgment I immediately thought of a case last year called A (A Minor : Fact Finding; Unrepresented Party)  EWHC 1195 (Fam), in which Mr Justice Hayden (a more senior judge than Read) was faced with a similar situation : a father accused of domestic abuse who appeared in person, but there he permitted the father to ask questions directly (the judgment doesn't show any consideration of questions being put by the judge himself so we don't know if that was considered and rejected or if it was just not raised). At the end of the trial Hayden said :
It is a stain on the reputation of our Family Justice system that a Judge can still not prevent a victim being cross examined by an alleged perpetrator. This may not have been the worst or most extreme example but it serves only to underscore that the process is inherently and profoundly unfair. I would go further it is, in itself, abusive. For my part, I am simply not prepared to hear a case in this way again. I cannot regard it as consistent with my judicial oath and my responsibility to ensure fairness between the parties.
The predicament in District Judge Read's case was even more complicated, because the issue was not just about the father asking her questions (which Read attempted to solve by asking questions himself), but the mother's lack of legal support exacerbated matters and prevented her from running a positive case and left her struggling to deal with the pressures of cross examination.
I think it was absolutely right, and fearless of both judges to publish their judgments in the way they have. But whilst it is all very well for a High Court Judge like Hayden to stamp his feet and say "I won't do it!", that is much harder for a District Judge. Refusing to hear the case was not an option, and I can't think of much else that District Judge Read could have done to magically make this process more satisfactory - but I am deeply deeply troubled by the fact that the judge conducted the trial, made findings (including as a matter of law that some of the mother's allegations didn't happen because they weren't proved) and then published a judgment telling the world that those conclusions were probably wrong.
How is that justice to either party? And what is the point of a fact finding hearing if the court itself has to acknowledge that it is probably not an accurate reflection of the facts and the risks? How is that keeping children safe?
There is no news of a replacement for the lost Bill that fell when the General Election was called last year, which would have at least dealt with the direct cross examination point. Even if those provisions do re-emerge in a new Bill, they will not cure the difficulty faced by DJ Read - that the mother was debilitated by a lack of her own legal representation - because she did not meet the eligibility criteria for legal aid (presumably because of enhanced benefit income or the amount of capital in her property).
There has to be a better way than this. Even ignoring legal fees, vast amounts of public money are spent on fact finding hearings like this in terms of court time and judicial salaries, and on the work by other agencies that follows and is based upon the findings. It is money down the drain if the findings are as unreliable as this judgment candidly accepts they are.
[update 2 mins later : oh rats I forgot to add links to other posts...
Today seems like a good day to give you a little preview of my forthcoming book, written with Julie Doughty and Paul Magrath - the rather lovely Foreword written by Sir Andrew McFarlane, soon to be President of the Family Division (congratulations!). Here is what he has to say. Further details on the book can be found here.
Foreword to Transparency in the Family Courts: Publicity and Privacy in Practice
Just 25 years ago, when the Children Act 1989 was coming into force, I doubt that many, if any, family lawyers would have acknowledged the relevance of the term ‘transparency’ to the work of the family courts. Events have moved swiftly and there can now be no family lawyer or judge who is unaware of the justified impetus towards greater transparency in family cases or of the importance of the need for a clear understanding of just where the line is drawn between what can or cannot be disclosed to those outside the court about what has gone on within it.
Affording due transparency to family proceedings has turned out to be, as Sherlock Holmes might say, ‘a two-pipe problem’ which has, at its core, two entirely conflicting policy drivers: the need for the public to know what goes on in their name in the Family Court and, conversely, the need to protect the privacy of individuals at the centre of any particular case. Whilst it may not have delivered a solution, the title of the 2006 Government consultation paper issued by Lord Falconer, who was then Lord Chancellor, was spot on target – ‘Confidence and Confidentiality’ – in highlighting the conflicting needs of public confidence and private confidentiality.
Over the years, the understanding of what transparency may require has developed. Initially, many of us will have held an unduly simplistic view that the issue was to be resolved in a binary manner by either letting the press and the public in to the Family Court, or keeping them out. Thanks to the ground-breaking and inspired work of The Transparency Project, and now this book, transparency is to be seen as a much more subtle, sophisticated and flexible concept. There is much that can be achieved to ‘open up’ the Family Court in terms of describing and explaining its workings and decisions which falls short of allowing unrestricted access to all and sundry.
The publication of this excellent book is extremely welcome. It is a work written by those who have been on the front-foot on the issue of transparency throughout and who understand the subtleties both of the law and of the policy debate that lies behind it. There is real value in having a detailed and neutral account of the route that has been travelled thus far set out, as here, with clarity and in one place. Above all, this is a practically based text written by practitioners for practitioners, giving a thorough account of the relevant statutory law, case law and procedure. With the publication of this work, there will be no need to look elsewhere for an account of the law relating to transparency in family proceedings and this will rapidly become the ‘go-to’ book on the subject, not just because it is the only one but because of the comprehensive, clear and insightful nature of its coverage.
Inevitably, given the topic, this First Edition of ‘Transparency in the Family Courts’ can only tell the story so far. As the section on ‘Looking Ahead’ records, the book goes to press at a time when thought is being given to what, if any, further steps towards greater transparency may be taken. Given the impossibility of totally squaring the ‘Confidence and Confidentiality’ circle, any development will involve an element of compromise and sacrifice of one or both of these competing principles. Whatever the future may hold, it will, however, be a ‘must’ for all those involved in charting and implementing its course to have read and understood the contents of this important book.
The Rt. Hon. Sir Andrew McFarlane
Lord Justice of Appeal
Maundy Thursday 2018
I had to do the 'it's not my job to believe you' talk to a client recently. I thought it might be a useful topic to discuss on the blog, because it is so often a source of worry and confusion for people unfamiliar with taking advice from a barrister.
Q : 'You do believe me don't you?'
A : 'It's not my job to believe you'.
I get a lot of enquiries from potential clients who want to instruct me because something they have seen makes them think I will see their case as they do, that I will have sympathy for it and understand where they are coming from. That may be so - a good lawyer tries to see their case from the client's perspective and to understand their actions and objectives in order to do their best for that client. And of course will protect that client's interests. But a really good lawyer knows that protecting the clients interests requires them to also try and see the case from other angles too. And to do that properly you need to steer clear of believing your client.
If I say I'm not here to be your friend it may make me sound like a cold fish. But it really is critical that a lawyer maintains a certain professional distance. Not only for her own sake (the job would be emotionally too hard if you got too close to every case), but for the sake of the client.
Any client wants a lawyer who will fight hard for them. And understandably they often think that requires the lawyer to believe their story. It really doesn't. Believing doesn't make weak evidence stronger. And believing can make it harder to do that rounded job I've begun to describe above.
A lawyer who believes 'butters no parsnips' (as they say) - what you need is a jury or a judge who believe you. The lawyer's job is to get the jury or judge to believe you (if such a thing is possible - lawyers are not magicians).
Think of your case like one of those sets for a cowboy film. From the front the Saloon looks convincing and sturdy. From the rear it's just a facade and it's easy to see that a good nudge will topple it right over leaving nothing but dust. Cue tumbleweeds and scuttling lizards...
A client will typically tell their lawyer all about the front of the building, about how fine and grand it is. They won't mention it's made of plywood and can't withstand a gust of wind. Usually that's not because they are intentionally misleading - they just haven't noticed. Sometimes a client will emphasise certain points and finesse away others because the they think they need to persuade the lawyer - but to get the most out of a lawyer you need to equip them with information so they can advise you and persuade someone else. You don't need to persuade your lawyer. If you don't tell your lawyer the less good bits of your case you are giving them a pistol but blindfolding them before they've worked out where the sheriff's men are hiding.
Now a lawyer would listen to your tale of the mighty fine building, take your dollars and say 'Yessir that sure is a mighty fine saloon' would truly be a 'cowboy' in the pejorative sense. A lawyer should say 'Would you mind if I take a look inside your saloon?' and when they step across the threshold into burning hot desert rather than the expected dark room full of liquor bottles, they should politely point this out to the client and advise that there is a problem.
You don't want the sort of lawyer who accepts your blind spots and who doesn't even peek inside the swing doors.
Heck, I wish I hadn't started this darned metaphor now...
As a rule of thumb your lawyer should be challenging you and asking irksome, irritating, mildly offensive questions. Because if they don't ask them the other side's lawyer will sure as hell ask 'em at trial.
There are two kinds of lawyers who don't ask questions : the lazy kind who can't be bothered to find out, and the kind who are easily drawn in and believe too easily. Actually there is a third - the lawyer who has too much on to have time to probe.
Let's begin at the beginning.
Sometimes when I'm giving some tough advice a client will question whether I'm on their side or ask 'You are my lawyer, right?' as if I perhaps they have accidentally walked into the wrong conference room. That's a sign I haven't explained my role well enough : When I'm giving you advice it's private - privileged. What goes on in conference stays in conference (except that one time when a client threatened to shoot someone but that's another story). What I say to you in conference is not what I will say to the judge. Lawyers can't mislead the court - if you tell me the building is made of plywood I can't then say it's made of brick. But if your case is the house is in fact made of brick and it's just an optical illusion, or that it is in fact made of super strong plywood that is as good as brick - that is the case I will argue. Even if in the privacy of our conference room I have told you that this is a position that is frankly never gonna fly. I operate on the basis that if your case is pants you would prefer to know that before i go in and crash and burn on your behalf. I advise. You decide.
We all have cases and clients who are more or less persuasive, engaging, sympathetic... Some clients are hard to like and even harder to believe. Some are completely convincing and apparently lovely. It is easy to go with the flow - sometimes very hard to resist the pull of the likeable client or the case where it is 'obvious' whodunnit - but in the course of a career most lawyers will encounter persuasive clients who were absolutely shocking in the witness box and caught out in a lie, of unsympathetic clients who turned out to be innocent, of unwinnable cases surprisingly won, of strong cases destroyed at trial and of cases where the science points to an explanation that is very hard to accept on a human level. The truth is lawyers have no magical ability to divine the judge, any more than judges do. All that lawyers can do is assess the evidence and attempt to predict the outcome. All that judges can do is get as close to truth as possible, knowing sometimes they will get it wrong. There is always an element of unpredictability. So lawyers learn to put their hunches and emerging beliefs to one side, because they are a distraction.
Lawyers should always be acutely aware that however much their client tells them, and however much the client thinks they are providing all relevant information - they don't know what the other side is telling their lawyer. Believing your client instead of challenging, exploring, warning your client means you aren't asking 'What would I do if I was acting for the other side?', 'Where are the weak spots?', 'Why haven't they mentioned this particular thing?'.
A witness statement drawn by a lawyer who has not walked around the back of the building, will describe the facade and will fail to shore up the building. A trial lawyer who has not walked around the back of the building will not spot these weaknesses. I have seen advocates sucked into their client's world view miss critical points. I have been instructed by solicitors whose briefs are all about how lovely the client is and which fail to mention the gaping hole in the evidence, leaving me to explain to an entirely unsuspecting client on first meeting that there is a teensy bit of a problem. It happens to all of us - some cases catch you unawares and you find you are too close. Some clients leave you cold and it is difficult to muster enthusiasm or find a creative way to press the case. But we do the same for all those clients, because what we do believe is that the system itself is the best way at getting close to the truth and to fairness (imperfect though it is). Because we know that until you hear both sides of the argument, and hear both sides being tested and challenged, it is difficult to form an accurate view of where the truth lies.
And so I tell my clients - If I believe you I can't be objective. If I can't be objective I can't give you sound advice - I can't help you make the call to change course before it's too late, and I can't argue your case to it's best if we do get to trial. Of course my advice is not always negative - but I can't confidently tell you your case is likely to be a winner unless I've given it a good old shake first.
Instruct a lawyer who believes you if you like - pay someone to tell you what you want to hear - but far better to have advice from someone who will tell it like it is before you get to the gunfight at the (not) OK Corral and find there are no bullets in your gun.
...I REALLY wish I hadn't started this metaphor...It was the wobbly buildings which attracted me to it not the guns and combat. In case I have inadvertently made lawyers sound like mercenary soldiers enthusiastically invested in some form of warfare, I should point out that part of our function is to try and steer client's away from the 'combat' of trial if that is in their interests. If we have to fight it is our job to do so fearlessly, but often our advice is 'let's find another way to sort this out. Here is what I suggest...'.
Feature pic : tombstone by Johnny Silvercloud on Flickr (creative commons - thanks!)
I am in a podcast on the Free Movement blog. It was actually quite fun to make - and even my husband (who thinks up any number of creative excuses not to read or listen to my stuff) says it was interesting.
One of the reasons Pink Tape has been somewhat neglected of late is that, along with Transparency Project colleagues Julie and Paul, I have been writing a book about Transparency for Bloomsbury (The publish Harry Potter!! I know, right?), which is about to be published :
Below you can see me talking about transparency (with hand gestures but no wand), in response to questions from fellow muggle Paul Magrath.
Transparency in the Family Court with Lucy Reed and Paul Magrath - YouTube
If you are still interested in buying the book after watching me pontificate, you can get a 15% discount using this code : BPTFC15. See how much I love you all?
If you are not yet persuaded, watch out for the stonkingly lovely foreword from Lord Justice McFarlane which I think will probably be posted on the Bloomsbury site in the near future (or maybe here if I'm allowed).
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