Advocacy – a low in Family Courts, or a sign of the times?

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With thanks to Mark Anderson for use of his cartoon  https://www.andertoons.com/

After 37 years of practice at the Bar – out of touch? I hope not as much as you would expect. Moved with the times? Now, here you can judge.

Today’s blog concerns family court advocacy.

I have not always been a family practitioner. There was a time – up to 1997 – when my practice involved largely criminal defence and regulatory work. After a diet of inner and outer London Crown Courts, and of course, the Central Criminal Court, I moved to the North Eastern Circuit to spend my time in the Crown Courts of Yorkshire. It follows that my advocacy skills were seated in the demands and honed by the constraints of plain speaking criminal advocacy.

The process was simple. Examination involved asking questions. Non-leading questions. The simpler, the better. Each question could, and frequently was prefaced with the words “who, what, where, when, how, why”. The aim of the question was to elicit a reply, and the reply was the evidence. Oral evidence was the currency of the court.

Cross examination permitted leading questions – where a direction or suggested answer occurs naturally within the question. Previous inconsistent statements could be put to a witness and tested by questioning – “here, you said ‘a’; now you say ‘b’; why the difference?”

Beyond those simple rules, we did not stray. To do so would result in the judge stopping line of questioning and the defective question prevented. Save for older silks, most complied, and we got along fine.

Whilst the admissibility of affidavits and statutory declarations has always been permitted, there came a time when pre-prepared statements were encouraged, and later required. In civil proceedings, the statements were to stand as the witness’ evidence, and it would be on their written statement that they would be tested in cross examination.

As a process, this lasted ‘but five judicial minutes in a long legal landscape’. Advocates used the statements to prepare the ground, rather than setting it. So it is rare today that witnesses are called and tendered on the basis of their written statement. Instead, advocates track through already deposed facts and recollections, and judges sit silently permitting this to happen, as if they hear the revelation for the first time.

But the main current transgression in advocacy skills, is the use by advocates of ‘comment’ dressed elaborately as a question. We all know that there is a massive difference between questions, assertions and comments. The first is designed to elicit evidence, and the others are an argumentative measure of the questioner’s opinion.

Habitually in family courts, lines of questioning are loaded with comment, or flung at witnessed as assertions. Some practitioners may say this is simply to ‘set the scene’ for a question. Mostly, the scene does not need to be set, and the assertive comment from an advocate is entirely out of place where the judge has read the evidence bundle. Maybe this is the problem – maybe the judges haven’t and the advocates are seeking to describe the case to the judge, rather than question the witness on their evidence?

The more judges permit it to occur, the more it happens, to the point of normalising the ‘assertive-comment question’. The clarity of the process is not the only casualty; another is a diminution of the skill of the advocate. As opinion and evidence blur, so does the original integrity of the purpose and function of questioning witnesses. Witnesses are not simply confronted – which is good; but bullied, confused and invited to argument – which is cruel, unnecessary and to my view, unprofessional.

The flaw now appears ubiquitous in family courts, as family judges sit back and listen to comment-laden questions fired repetitively, to the point that when it comes to closing submissions (or comment) there is not a fresh comment to make.

Some suggest that the family courts have ‘floated away from the mainstream civil legal process’, with altered rules of evidence and procedure. Yes, family courts have a special, human job to do -one that frequently requires a more informal approach -but the casualties of free-for-all questioning are extensive, not least the skill and ability of advocates to question without comment.

 

 

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Its my money. Trust me!

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Over the final half of my 37 years as a barrister in private practice, I have been arguing over money.

Not mine, I hasten to add, but other people’s. In particular, divorcing spouses or cohabitees. There comes a time after almost every separation when two people who have lived together and loved, start to argue about the spoils. Those that can afford it rush to a solicitor or direct access barrister and commence battle. Those that cannot pay may chose to go it alone.

Either way, they have embarked on a battle from which there is little respite – until they run out of money, of energy, or are crushed at court in a final hearing.

But the purpose of this blog is not to bemoan honest,hard-working people spending inordinate amounts of their money on lawyers and in courts. It is to examine the fundamental flaws of financial remedy proceedings (as the financial arrangements are called in court).

My first observation is prosaically procedural. How is it that going to court to argue financial splitting of assets can remotely be justified? The cost of this process starts at £12,000 for the couple, and soars to a dizzy £100-120,000 in more complex cases. In J v J the parties managed to rack up £920,000 in costs between them, much to the judicial amazement and displeasure of Mr Justice Mostyn. Do they get a return on their investment? J v J didn’t; and generally, the chances are – not.

Readers of my earlier blogs will recall my commentary on the alternatives of mediation and arbitration, which I will not repeat here. Guidance by a single expert makes sense, assuming the expert knows what a judge would do, and that both parties agree to be bound by the outcome. There is, of course, the other ‘questionable’ alternative of splitting at the outset by way of pre or post-nuptual agreement.

My main concern here is to do with the philosophy of division where children are involved. In fact, my problem goes further – to question of ‘ownership’ and ‘responsibility’.

The financial wars that I have witnessed rarely focus on the children. Yes, this may be the court’s first consideration when it comes to making an order, but the children seem to remain ‘bit players’ in the battles, unless they are to be used as weapons to secure a greater share of the booty for one of the parents.

So, what would happen if we changed the rules?

Imagine this. When two people decide that they are to have children, they would do so in the knowledge that they forfeit ownership of property to them? How would that be?

Simple. The law would deem that all matrimonial property vested immediately in trust for the children, and that each parent became a trustee for the child. Rather than children being ‘the first consideration’ for a court, a child or children would be deemed to be the beneficial owners of all of the property. There would no longer be the ‘divvy up’ entitlement of assets to to each parent; there would be an appropriate of provision for the parents’ immediate needs and no more. The rest would be managed exclusively to provide everything that their child would need through to the age of 21.

What a glorious world that would be – children placed, where they deserve and need to be – at the centre of decision making as the beneficiary and responsibility of their parents’ endeavours.

But will such ever come to pass? Of course not. We have neither the imagination to prioritise children over parental greed, nor the legal system to oversee it.

Instead, we will continue to subsidise the lifestyle of lawyers (of which I am one). But, long may it continue – for after all, what value the future of our children?

Gun culture and Gangland. Who bears the Risk?

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Readers will be aware of this blogger’s preoccupation with guns as instruments of death. Its right to say that, as a former certificate holder, I was never fully comfortable with owning a firearm. As an English barrister dealing with a barrage of firearms cases for several police authorities, I became even more sensitive to the issues of ownership, use and abuse.

Shootings in American schools have resulted in recent impassioned gun pleas from President Obama. I glanced at the Wikipedia entry – yes, it takes some time to scroll down from 1927 to 2015 – to find that the Umpqua Community College shooting, with the loss of 10 lives, 20 casualties, and innumerable families distraught, was not in fact the most recent school shooting in the USA. Since then there have been two further school deaths in the States, and since my Sandy Hook blog, 19 further incidents comprising 38 deaths.

The US gun lobby, in the form of the National Rifle Association, however, maintain their resistance. shoot 1It seems that Americans are unable to release themselves from the belief that guns in the hands of civilian are more protective than offensive.

Restricting the lawful possession of handguns here in the UK after 17 deaths at Dunblane, has been of massive value in saving lives and changing public opinion. The Great British public have little issue with the fact that handguns are no longer permitted outside gun shooting clubs.

It has not, however, shut off the availability of guns. Greater Manchester Police have seized 30 unlicensed weapons this year. Now, in yet a gangland feud, Jayne Hickey, a mother and her 7 year old child have been shot.

I have previously blogged about the question of rights to own firearms here in the UK, and the need for some legislative change.

Whilst unlawful weapons – especially handguns – will be imported from time to time, the gangland weapon of choice is frequently a simple shotgun, the barrel shortened for ease of concealment, and blast effect. There is no need to import these weapons, they are here already.

Whether shotgun or handgun, the most recent shootings beg the question “What is the source of these weapons?” Until we address the manufacture, procurement and recording of weapons internationally, we will face incidents like these.  Perhaps, with regard to the ‘home gun market’, now is the time to insist (in addition to a gun amnesty) that every registered certificate holder has compulsory insurance against all of the implications of their weapon entering the wrong hands?

Culture Casualty

 

Yesterday, I found myself reminiscing about ‘the old days at the Bar’ – as one does after 36 long years in private practice.

Unusually, eleven lawyers were beached together in the small advocates’ room at York Family Court Centre whilst Judge F, the single judge, battled with a massive list, complicated by all manner of legal conundrums. I permitted the wash of sound to lap against my consciousness. If I needed confirmation that I was in a family court the words were ‘children’, ‘mum’, dad’ and the odd ‘grandchild’ provided it.  Ahead of me was a flash of red lining from a young advocates new suit, a blue silk scarf wafted beyond on a peg, files were piled on tables and window ledges, and a suitcases staggered in a crazy parking lot by the lockers.  These were the true signs of the family court.

But there was no mention of ‘lunch’.

These days, as the plastic forks and boxes and vacuum packed sandwiches join the cardboard coffee and aluminium flasks on the advocates’ tables, there is no thought of communal ritual or routine. At one time, courts would have risen almost simultaneously, coughing advocates up and out to join each other at ‘the mess’ – the legal ritual daily lunch.

Here on the North Eastern Circuit at Leeds, an entire centre row of tables in the advocates’ area would be cleared at noon and set for lunch, with meals served simultaneously by the waitress staff. When a jury had recently returned a verdict – and the day’s work completed, a bottle of burgundy may also appear. In Sheffield and Hull, this event was honed to a fine art by the court junior. Arriving at the selected pub or hotel, advocates would be greeted by door and waitress staff, and led to linen-dressed tables, pre-set with wine and flowers. Joined by the judges, lunch would last as long as they deemed proper, with occasional messages phoned from the corner booth to inform court staff that the judge was ‘unavoidably delayed’.

Some readers will read this with incredulity. Others, censoriously, sensing inappropriate practice and privilege. But, at the time, it provided the perfect setting for the real work of the Bar – communication.

Retiring from active practice at the Bar, HP’s recent observations  about ‘lunch’ were remarkably insightful – not surprising for those that knew HP’s innate perspicacity. She may read this and deprecate the linking of her remarks with historic excesses, for that is not what she meant. Her point (and mine) was simply that busy, overworked, over-stressed advocates needed an opportunity to unpack, talk, listen and reflect. Rather than taking home the stresses of unresolved conflict to unwitting families  – how much more appropriate to sit together as professionals, take lunch and chat things through?

These days the elegance of practice – whether as a barrister or solicitor of the Supreme Court – has been removed, stolen or simply evaporated with the passage of time. Mostly, we subsist as executives working in the law, festooned and remunerated by regulation. Like the judges before whom we appear, we have little or no ‘thinking time’. Last minute preparation of digital information requires instant responses and sees us enter courts with sometimes superficial grasp of the case in hand, and no later chance to reflect or discuss what we should have learned.

The system – whether imposed by Ministry of Justice, HM Court Service, Legal Aid Agency or merely present day structure of the professions – simply impoverishes our work rather than enhances it. The greater the pressure to deliver in the shortest possible time without reflection, the poorer the judgement, and the service that we deliver.

I say, “bring back lunch”, and breath new, old meaning into legal practice.

Arbitration revisited

Divorce Arbitration blog in April 2012  reflected on the first 40 divorce arbitrators appointed through the Institute of Family Arbitrators. Since then, the President Lord Justice Munby in S v S has given arbitration in financial remedy cases a massive boost. A final piece of the jigsaw has been thrown down on the table by Mr Justice Mostyn in J v J – a matter which I covered in the blog Scandalous Costs.

You don’t need to be clairvoyant to detect the future for financial remedy cases. With unacceptably escalating costs in adversarial court processes, coupled with the possibility of open justice through public courts, we are unlikely to continue to litigate many financial cases as we have done in the past. The alternatives may not be as I described in Solving Disputes, but there is a lot to commend the concept of private resolution.

So, how well placed are our northern regional centres – such as Manchester, Sheffield Leeds and Newcastle – to meet future demand for private arbitrations of disputes about family finances?

A handful of individual of regional practitioners have taken the plunge to qualify as financial remedy arbitrators, yet there has been no consistent policy to produce pairings, let alone teams within barrister’s chambers or solicitors’ practices. Further, we have developed no marketing arm to promote arbitration, or practice policy to bring arbitrators together.

The Chartered Institute of Arbitrators, as a regulatory body, can do so much – perhaps mainly for London based practitioners – but it hasn’t the reach to make a difference in the provinces, and market weight will not remedy this deficiency for some time to come.

This market sector is highly specialised, so it is unlikely to attract corporate players outside the current legal community of financial remedy practitioners. But that is not to say that the regional market cannot be absorbed by London collectives.

Now may be the time for northern financial remedy arbitrators to make changes – to be less reliant on the old systems of referral – and much more focused on direct marketing with a single regional dispute resolution centre. Lord Justice Munby is paving a way that we in the north would be remiss not to follow.

Community Justice – the ‘community court’ for 2015

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Today, the Stephen Twist Barrister blog is three years of age.

Back in January 2012, in the then ‘Dere Street Barristers Blog’, my first posting ‘Thirty Three Thesis Thirty Three  has stood the test of time. Lawyers’ fees and earnings reduced over the following three years;  the world did not end (as the Great Cycle of the Long Count predicted) on 21 December 2012; and my chambers survived a further three years.

My preoccu-prediction that mediation would develop apace was a sage guess – with ADR continuing to rise over three years in civil and family cases, and restorative solutions appearing increasingly in criminal processes. Perhaps my vision of paper-free practices was less visionary. Third party investment in the legal profession was an event that foretold of a trend. More prominent, direct access to the Bar has continued to provide an alternative to the ‘gold card’ spend.

As precursors for this blog, my increasingly present concerns about ‘court process’ resulted in a series of blogs relating to privatised courts, starting in May 2013 with Privatised Courts – where to, where from? The September blog Fit For Purpose, addressing the idea of private court hearings, proved very popular – to the point that it was passed off as the work of an infamous silk until the Bar Council caught up and exposed him. Although slightly off-piste, Party Animals published in February 2014 looked at alternative approaches to family court litigation. However, it was not until July 2014 that my blog got to grips with the prospect of Dispute Resolution Centres in Solving Disputes and Scandalous Costs in November 2014.

Michael Zuckerman, in his excellent article, The Experience of Dignity: Community Courts and the Future of the Criminal Justice System tells of the Red Hook Community Justice Centre in Brooklyn as a community court. Until I read his article, I had not heard of the 70 multi-jurisdictional community courts. The concept, reminiscent of Nils Christie’s paper Conflicts as Property, has significant merits. It returns justice to the community affected, and empowers rather than simply punishes.

So why, in Britain, do we not have such a centre? The economics make total sense. If reduction in offending is an objective, this is surely the way forward. Client and community satisfaction appear to be met exponentially by the project.

As a Youth Offending Panellist and trained restorative justice facilitator, I have seen first hand the benefits of alternative approaches to justice and conflict resolution. Now seems to be the perfect time to return conflict back to the community for repair, rather than to estreat it to the courts for punishment.

Scandalous Costs

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Between 29 October and 5 November 2014, Mr Justice Mostyn heard a financial remedy dispute between two embattled divorcing parents.

Their home was worth £291k, a property portfolio worth £317k, pensions of £115k and two businesses valued at £2080k.

By the Financial Dispute Resolution appointment on 12 March 2014, they had spent £226k in costs.  However, eight months later on 6 November, their legal costs rose to a staggering £920k – nearly one third of their assets.

In another case, the current President of the Family Division (in 2008 as a High Court judge) spoke of excessive costs constituting to “a scandal which must somehow be brought under control“. In 2012 Lord Neuberger had a go at costs in his lecture to the Association of Costs Lawyers, saying that hourly billing confused “cost with value”.

To avoid “the grotesque leaching of costs”, like Lord Neuberger before him, Mostyn J proposes fixed costs legal services to replace hourly billing, together with costs caps – and is to send the issue back to the President of the Family Courts for action.

This blogger has always been ambivalent towards hourly rate billing, believing that ‘time spent’ varies according to expertise. The lazy or inept lawyer can spend considerable time doing what the expert will do in an instant. With hourly billing, one is overpaid, whilst the other is inadequately rewarded.

But has the judiciary really grasped the nettle of costs?

The simple flaw lies deeper, in the fact that two firms of litigators, whose interests are served by protracting conflict, are permitted to take their clients into headlong battle, for which both the public and their clients pay at an hourly rate.

What do they pay for? Frequently, the ‘what is there?’ – the identity and value or the assets – is not the problem. Where divorcing couples can’t agree, they get an independent valuation. The real issue is to determine ‘what to do’ with what is there; and that is the job for their barrister.

The impenetrable form E – the court designed document intended to set out a financial picture probably fails in every regard, other than to raise rancour. What is needed is a simple schedule of assets, liabilites and income. After all, the court will attend to these (as did Mostyn J) – not the aspirations and wishes of the parties, nor tactical positions crafted by their solicitors. Why, then, should the preparation (and possible agreement) of such a schedule not be made a pre-requisite of a financial remedy claim?

What to do with the assets is frequently fairly obvious. Up and down the country District Judges hear contested cases in a matter of hours and give extempore judgments immediately following the evidence. More frequently, matters resolve at the financial dispute resolution stage when a judge (without hearing evidence) makes sage suggestions.

Why the battle lines? Why two lawyers and an adversarial process? What is wrong with simple experienced and impartial analysis to help resolve these issues? That the parties won’t agree is simply an excuse by an over-priced, unwieldy adversarial system – made possible and perpetuated by the court process.

Regrettably, what Mr Justice Mostyn did not evaluate was the significant cost to the public of hearing the case – numerous appearances before the lower court, a Deputy District Judge, Judge Bancroft’s salary, Mostyn J’s own salary over seven days, the Family Court and High Court buildings, court staff, heating and lighting – to deal with a ‘delinquent’ couple who had spent £920,000 with their lawyers.

How bizarre is it having public courts dedicated to this massively costly process, paid for at huge cost to taxpayers?