Doom and Gloom and very black Coffee

Just thought I’d pop in and say hi. I am still here, not-blogging away quietly.

I’m freshly arrived back from completing the annual bar survey, which prompted all sorts of deep consideration of life and the future. To respond to the questions I had to tot up how many hours a week I work (don’t ask) and rate my feelings about life at the bar and such things as where I think I might be in 2 years time (cue ambivalent and contradictory responses). Frankly who knows. It occured to me as I box ticked my way through said survey that I could have had four children adopted by then, if only I could gestate them quick enough…

According to all the despondent solicitors I’ve been grimly sipping coffee with this week (actually I’ve been slurping tea but you get my drift), we’ll all be sailing down the swannee in a gravy boat with a corpulent pussy cat and a five pound note. I paraphrase…

You see what happens when my work life balance is all wrong and I’m working too many hours? I’m getting slightly hysterical and surreal. But the problem is we are surrounded by other over worked slightly hysterical family lawyers and the only time we pause for breath is over coffee, when we compare how depressed we are, like Mel Gibson and Danny Glover with their competitive battle scars. It’s not healthy.

But seriously, I have been working too hard. It’s not often I can’t find time to blog and I haven’t lately. Every case I get is a mammoth read. And every brief arrives in the nick of time (if by “nick of time” you mean in sufficient time to allow all the papers to be read without making allowance for cooking dinner, sleep, or generally doing anything between the hours of 7.30am and bed other than work)…Oh how I long for those slender ex parte non mol briefs of my youth.

And by jiminee it is grim talking to family solicitors these days. I’ve listened to a number of utterly dedicated and highly experienced partners talk about how they are working themselves into the ground trying to keep their firms vaguely viable, about how stressed they are with responsibility for employees, clients, families – about how they feel they may no longer be doing good nor even doing “no harm”. I’ve heard an expert opine that “We didn’t come into this work to do shoddy child protection work” (a reference to the new style swift and short expert report). Yes. The froth has gone from our coffee…Even the inappropriate black humour is drying up. The bar (in pockets at least) remain a bit more blissfully distanced from reality. They’re still drinking lattes the fools.

A piece of legal advice – do not have coffee with a family lawyer. Ever. It might be catching.

On another coffee related note, several of the depressed tweeting lawyers (we are legion) have been pondering our next incarnation in a post-bar utopia. Barista was the obvious option since it requires only a small amount of tipex in order to enable us to recycle our business cards. But it lacks creativity. Personally I think my plan to launch a coffee shop replete with photocopy, print and internet facilities for disorganised litigants in person in the vacant shop next door to the Bristol Civil Justice Centre is a stroke of genius, if only because it presents an opportunity to think up mildly (very mildly) amusing names. “Copy Latte” is my fave. Or “Copyteria” or “Triplicup”… I could go on. My skill with words is a key transferable skill you know.

So anyway, in this coffee shop litigants in person (or disorganised and disguised lawyers) could access basic legal reference materials, quickly locate and print an authority from Bailli or wherever, photocopy that massive document they sent only to the judge – whilst the lawyers could use our app to order a coffee and sandwich surreptitiously under the desk whilst the judge isn’t looking (thereby dispensing with the need to take ANY lunch break at all – hurrah). Perhaps if I call my coffee shop a “Hub of Justice” (like Wheel of Fortune only with more arbitrary results) it will attract some social entrepeneurial start up tax relief or an MoJ grant…. (civil servants like HUBS).

Oh and I forgot to say – customers who could prove they had suffered domestic violence would get a free jammie dodger. I need to do some work on my business model and pricing structure but I’m pretty sure that the profit from the latte drinking lawyers could subsidise the photocopying costs of the litigants in person OR that the profits from the hordes of carrier bag wielding litigants in person might enable us to set up a project to feed impecunious lawyers or to carry out conservation work to save them from extinction. One or the other….

I think my Dragon’s Den pitch is really shaping up, don’t you?

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27 thoughts on “Doom and Gloom and very black Coffee

  1. “I’ve heard an expert opine that “We didn’t come into this work to do shoddy child protection work” (a reference to the new style swift and short expert report).”

    Really? I thought this had been going on for years:

    http://www.mfjc.co.uk/home/mfjccou1/public_ftp/resources/FINALVERSIONFEB2012.pdf

    “…customers who could prove they had suffered domestic violence would get a free jammie dodger.”

    Is that the criminal burden or proof you’ll be using, or will you settle for a simple allegation?

  2. Matron, she’s having on of her turns . . .

  3. [...] Doom and gloom and very black coffee [Pink Tape] [...]

  4. Are these the same family law solicitors and barristers who were telling us all before the cuts how Legal Aid was a minor part of their business and that they were only doing Private family law legal aid work because of their finely tuned social conscience. Turns out many are reliant on tax payer monies and can’t survive without it, what a shocker!

    • I’m not sure what you are referring to – most of the arguments I’ve seen have been precisely the opposite i.e. that this kind of lawyer is necessarily heavily dependent on legal aid, although latterly in many firms they remain able to do this work only through effective subsidy by private fees.

      And the doom I was referring to is not simply about income, it’s about a broader despondency about the changes to the family justice system which some of the lawyers I encounter on the ground are not as confident will serve the interests of families or of justice.

  5. I recall Private family lawyers well before the cuts were announced stating that their private fees subsidised their legal aid work. That they were doing the Private family law legal aid work because they were wonderful human beings who wanted to make a real difference etc. However, it turns out the tax payers monies was the only reason they were able to stay in business.

    Well of course lawyers are going to tell us all about how dreadful things have suddenly become in the family courts since the lawyers lost access to huge government monies. One would expect nothing less.

    i doubt many Users over the years, particularly fathers and children who have been on the end of a recalcitrant parent with their publicly funded champion lawyer for months and years would say the the ‘best’ interests of families or of justice have been served by the adversarial system hopefully soon to be consigned for the most part to the past (if promises are kept).

    The move to an inquisitorial Private family law justice system is long overdue. Tax payer funded champion lawyers for parties have wrought much havoc to separated families, especially children over the years and it is about time public funding was removed from these cases.

  6. Can I work in your coffee shop please Lucy?

    X

  7. Chambers, this really isn’t about fees…

    The reality, at least for the Bar, is that in some dystopian ABS led, direct-access mad, pay-and-go fee structure, world where legal aid no longer exists, the assertion that annual gross receipts will go down is misguided.

    For one, everyone will be doing this on the cheap. So, say goodbye to early robust legal advice from solicitors who politely insist that an application is futile and talk the lay client out of running it. Equals, if I need to spell it out, more court work.

    Second, the LAA’s fee policy is a truly remarkable, if utterly delphic, but perhaps not wholly without merit. Now that’s basically gone, say hello to a bit of a free-for-all on fees. Particularly fixed-fees, which are not going to be calculated to mean “more work for less cash”. The government can basically drive down legal aid rates unilaterally. Private punters cannot.

    Third, even if by some miracle the idea of an “inquisitorial private family justice system” takes off, that’s going to require a lot more judges. So, first, the costs are simply transferred from one government department to another. But, second, judicial salaries ain’t half bad, you get a pension (albeit it isn’t to be as good as it was), holiday pay, etc etc. A lot of more senior counsel would have the option of “the purple lifeboat” if needs require. More to the point, this government certainly isn’t going to fund it. And that means, in the short term, it isn’t going to happen

    Fourth, the idea that the lawyers will simply disappear from the system is absurd. Most people know a qualified barrister can do a much better job in court than they can. And, for something like access to children, an awful lot of people are going to be willing to pay for it. They may not want to instruct solicitors to do the litigation and advise, but a lot of people will be quite happy to pay substantial sum for a barrister for the day. Ironically, because the briefs will be badly prepared, this means more money in fees.

    Fifth, it’s never really discussed much but the profit making potential of ABSs is substantial. Particularly if those ominous whispers about partnerships capable of providing/facilitating funding loans come true.

    Finally, and by no means the least important, there’s an assumption implicit in all this that “no order for costs” is likely to stay the default position. For my money, I’d expect to see this eroded particularly if/when we start to see misguided LiPs bringing applications with little/no merit (or defending those that should be conceded).

    It would, however, represent a drift towards a more American-style system of justice. However, as the small fortune that firms who specialise in motor offence defence work demonstrates, when the chips are down people will gladly fork over extortionate sums for legal representation. And it’s because of this curious desire to put justice before profits that so many people in the legal profession are opposed to it.

    Because, and I hate to break it to you, if it was about the money we wouldn’t be doing this. We would have gone into commercial solicitors firms and made rather more money.

  8. Provincial Solicitor

    I have just got back from having a coffee with a colleague *sigh*.

    The point is that private clients have subsidised legal aid over the years, but it is a mix. There are, of course, firms (and indeed counsel) who have been reliant on public fundings (in much the same way as dentists, or indeed doctors are). To remove that funding in one go is critical to the business.

    More importantly, there is a real worry about cases being pushed through in ever shorter time frames. The public should be worried about that; separation of a child from his or her parents is an incredibly serious decision and should not be rushed simply to meet arbitrary targets. That is a major concern.

    To answer Chambers’ point, who now represents the father who has his contact ended without reason? He cannot get public funding; mother will not attend mediation; so his only option is to issue his own application (armed with Lucy’s book no doubt).

    More coffee Matron!

  9. And here’s the government trying to let more people marry. If you abolish marriage the rate of divorce will dwindle in time to nothing!

    I just hope that I have not put an idea into a Ministerial head. Probably not; while there’s plenty of space getting a rational thought into the cavity has always been a bit of a challenge!

  10. Jim Nateley,

    please stop the straw man arguments addressed to me, if you want to argue a point then do so on what I have said, much appreciated.

    Thanks for your overview but I would just like to point out that many family law lawyers end up as such as they cannot hack it elsewhere, the third division as rebutted unconvincingly by a LJ in a speech whose name eludes me at the moment.

  11. It was a top LJ quite a few years ago in a published speech who defended the family law division against the broadly held view amongst all lawyers, that they were the third division.

    He then went on for some time in the speech to say why this view was wrong….

    Sorry can’t remember other details or the name of the LJ, probably around 2005…

  12. Found it, Lord Justice Wilson in 2002 at the Atkin Lecture, this case refers to it:

    http://www.bailii.org/ew/cases/EWHC/Fam/2009/1807.html

    N (A Child), Re [2009] EWHC 1807 (Fam) (17 July 2009)

    240.

    Justice Munby:
    Having referred to Wilson J’s observation in his 2002 Atkin Lecture, ‘The Misnomer of Family Law’, [2003] Fam Law 29, that “most of you will admit that your private perception of the Family Division is, in every sense, as the Third Division. The Leyton Orient of the High Court. We are not the Third Division”, Dr Pelling went on as follows (I record what he says without further comment):

    Dr Pelling:
    “One of the most appalling aspects of the Family Division, which causes it, amongst many other things, to merit the perception of it as the Third Division, is the way the judiciary routinely ignore expert research carried out under proper scientific conditions. When confronted with research findings they usually hide behind the mantra that each case turns on its own facts and that the court must concentrate on the particular circumstances of the case before it, hence research of a general character can be and will be ignored. This has the useful consequence of enlarging the scope of judicial discretion. The fallacy is obvious to those of a scientific and rational turn of mind: if a general principle or law is established which has exceptions in some cases, then the onus is upon the person who claims an exception to justify that. The existence of the general principle justifies reliance upon it until the contrary is proved, and the burden of proof is upon he who claims the contrary. I am sure that even a judge of the Family Division assumes that sugar will dissolve in his tea and does not say, well, we must not assume that since each cube of sugar and cup of tea turns on its own facts we must examine every cup and cube individually before judicially concluding that the cube will dissolve in the cup.”

    241

    Justice Munby
    Be all that as it may, I take the law, as I must, from the Court of Appeal.

    • Oh right, well that’s not evidence that family lawyers are third rate, it’s evidence that in the past there has been a perception that they are – and a wrong one at that.

      Black letter lawyers can’t cope with the concept of discretion is all. ;-)

      Doesn’t make us crap.

      Got any more “evidence”?

  13. I never said I was going to provide ‘evidence’ as it was the perception as mentioned by LJ Wilson etc I have put forward.

    Why should I provide evidence and what would you consider good evidence?

    Previous posts do show that in 2002 the perception of many or a sizeable number (of lawyers and others) was that family law was the third division which is why it was defended so robustly by LJ Wilson.

    Perhaps you could provide evidence that these views have changes substantially since 2002 and why so?

    • No Chambers, you didn’t say you were going to provide evidence. You made an assertion and I asked if you could support it with evidence. It appears you can’t because the only evidence you have produced is a judgment that says other people wrongly thought family lawyers were third rate.

  14. As for “Third Division” it used to be common, until recently, for judges to be appointed to the FD with a move to the QBD or the Chancery Division at some point. Which of those was the First and which the Second Division far be it from me to speculate.

  15. It is not the judgment that is of interest but the speech by LJ Wilson to lawyers and judiciary in 2002 regarding the perception of many of the audience and wider that family law was the third division of law.

    The judgment only makes reference to this and is irrelevant otherwise to this discussion.

    To labour the point, LJ Wilson felt it was necessary in 2002 to defend family law as the perception of many of those who worked in law (and elsewhere), was not particularly flattering regarding family lawyers.

    I’m not sure what has changed between 2002 and now to change this but perhaps you could explain?

    I have not said I agree or disagree with those lawyers LJ Wilson was addressing back in the good old days, I’m not sure I have a strong view either way. However, that was the general perception 10 years or so ago, has it changed and if so why?

  16. Andrew, the term ‘third division’ was being used in the pejorative sense (e.g. football “Leyton Orient”, that we do know.

    familoo,
    fair enough, so what!

    • I was responding to your requests that I justify an assertion I hadn’t made.

      I think we may have exhausted this extremely interesting topic now…

  17. I know what you mean.

    Hopefully.

  18. And that’s the point, Lucy, the FD was the lower division from which judges were promoted. That gave it the Third Division feel.

  19. Chambers,

    Your proposition appear to be that lawyers who do legal aid family work are protesting about the changes to legal aid because the loss of fee income from legal aid will lead to practices becoming unsustainable and lawyers going out of business. That the principled arguments are just a cover for concerns about money.

    My comment addresses why, in the medium term, the assertion that “it turns out the tax payers monies was the only reason they were able to stay in business…etc” is, in my view, incorrect. As that is your assertion, and my comment provides a number of reasons why your assertion may be refuted, it isn’t a straw-man argument. Perhaps I just haven’t made it clear enough, but I wanted to avoid repeating the same conclusions over and over.

    As for the reference to Atkin lecture. I don’t entirely see your argument. Certainly I don’t think anyone would dispute that crime, family and PI are generally the least well regarded practice areas to work in—not least as they don’t pay as well as say, commercial or chancery work. But you may need to spell out what point you are trying to make, because it isn’t immediately evident.

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