Only fools and clients (From Solicitors Journal)

Divorce|August 10th 2011

With my recent Roman holiday in mind, together with my concern for litigants in person who may not be able to afford legal representation or believe they can do as a good a job as a lawyer, what follows is my latest column for Solicitors Journal.

While I accept that some litigants in person will succeed, I believe that they will only do so because the merits of their case overwhelmingly deserve it. However if a case is finely balanced, it will turn upon the skills of the lawyers ranged against the litigant in person. That person, untrained, inexperienced and unable to argue competently against technical points of law, simply cannot hope to compete.

To my mind the case of N v N, about which I wrote earlier in the week, graphically illustrates my point. I can’t help but think that had Mrs N (the mother of two children) been legally represented throughout, perhaps she would not have been the subject of a section 28(1)(a) bar, and those later hearings could have been avoided.


Only Fools and Clients

The government wouldn’t like us to start pulling our own teeth, so why encourage more litigants in person, asks Marilyn Stowe

There is a well-known saying: “A lawyer who represents himself in court has a fool for a client”. We lawyers know the truth in that maxim. Like everyone else, lawyers do get caught up in the legal system. A few of them, if they get divorced, decide to handle it themselves – even if family law is not their speciality. Many of them discover, to their cost, that they were wrong.

Yes, you may be a brilliant and accomplished lawyer. Yes, you may know all the tricks of the trade. But lacking the skills and counsel of those who practice in the field, and caught up in the emotional roller coaster of divorce, how can you be sure that what you doing is correct? Once you are tangled up in our adversarial family law system, the detached, objective and hard-won skills of the opposing lawyer are trained fully and squarely upon you.  What you really need is calm, commercial advice. You need to be defended and protected.

To be fair most lawyers realise this, and to some extent a lawyer can be forgiven for assuming that being a lawyer is a passport to skill in every area of the law, including family law. When events begin to get out of hand, most lawyers are wise enough to take advice or suffer the consequences.

However there is a growing trend for litigants from all walks of life, not just law, to represent themselves. Some do so to try and save costs, although in my experience, this can turn out to be a false economy.  Others do so because they believe themselves perfectly capable of conducting their own cases, despite their lack of legal knowledge, their lack of experience and their lack of awareness of the potential consequences.

By removing legal aid from all but a tiny fraction of would-be litigants, the Government is now actively encouraging hundreds of thousands of litigants – the poor and vulnerable among them – to represent themselves. As solicitors, we know what these hapless people don’t: that going into court and litigating without lawyers can turn the courtroom into the Colosseum.

Would our Government advise its citizens to pull out their own teeth? Or conduct their own surgery? They wouldn’t dare. So why is the law any different? Is professional care in law not as reasonable a requirement as professional care in dentistry or medicine? On what basis, if any, does the Government have confidence in the non-existent legal skills of its citizens? How can they possibly think it acceptable for litigants in person, who are new to the law and ignorant of the tactics, of the twists and turns of litigation, to represent themselves in legal proceedings?

I have personally encountered many litigants in person who bear a heavy emotional burden. Armed with books and determined to “win”, they go into battle like gladiators. The case is all about them, their spouse – hated, with or without good reason in many cases – and their children. What happens in court will affect every member of that family for the rest of their lives. So what can a litigant in person count on? The sympathy of the judge? No. The judge may well give that impression. He or she must be courteous. But a judge adjudicates on law, not sympathy or pity.

I took a straw poll of solicitors in the office, all of whom have had recent experience of litigants in person. Every solicitor had a horror story: from interminable hearings that should have taken minutes, to aggressive misconduct by the litigant, to being wrongly accused of bullying before the judge, to the litigant-in-person’s failure to lodge all the requisite documents, or filling them out incorrectly, or refusing to settle on any terms and transforming cases that could have been reasonably conducted and ultimately settled, into stressful, ugly nightmares. The verdict? A resounding thumbs down.

The founder of Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers. She retired from Stowe Family Law in 2017.

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Comments(24)

  1. rachel says:

    I agree. My experience as a litigant in person was frustrating and demoralising. The solicitors acting for my huband wrote sent me agressive letters and threatened me with costs orders if I did not capitulate to their requests. I eventually instructed a solicitor when disclosure was not forthcoming and they even refused to comply with court directions! It is hard to put your faith in a system whereby the other side flagrantly ignore court orders and seem to encourage evasion and non disclosure. I have spent over £20k now and after a futile FDR when the District Judge clearly stated that what i was seeking was a reasonable order and told us both (and our respective lawyers) that this should not go to a full hearing, I I was stilll facing my husband’s intransigence and my choice was accept defeat or carry on to a final hearing.I chose the latter but have had to jettison my solicitor who quoted a further £16k. Ihave made a decision to avail myself of the public access scheme at this stage in the proceedings and will act as a litigant in person with a barrister booked to represent me at the final hearing and give me guidance if the going gets tough before then. I am hoping the court will not take a dismal view of my tactics and I have made the right decision albeit to save costs!

  2. Graham says:

    I would point out though that it can be a cheaper alternative for someone who wants to keep the costs down and know what a reasonable settlement is (after some legal advice) when the other side are driving up costs and writing letters to do so to try to force an unfair settlement.

    It is cheaper to go to court with a certain case in person then to pay a lawyer a fortune for it. Sometimes when you know what the Judge will say or do but the other side’s lawyer are being silly (under instruction) it is cheaper to go yourself as the Judges don’t often award costs in such matters.

  3. Kay says:

    The wife in N did seem to fall foul of LJ Thorpe with her “well paginated bundle” – in some ways she was too well prepared for a LIP or for the case she argued.

    Equally, while it is common for highly respected lawyers to make disparaging references to their recent encounters with LIPs to explain their reverses – you would hardly see a lawyer reason away their success due to the fact a LIP was involved.

    In this aspect, it simply will not do for LJ Thorpe to at once think that the wife was intellectually undergunned and yet fail to consider the best method of levelling the playing field where a LIP is involved – get rid of the other professional lawyer

  4. Rachel says:

    I believe the courts will always try to deter LIPs perceiving them as lacking the necessary skills and but surely a system could be introduced whereby less wealthy people could be means tested by the solicitor and a fee agreed for a fixed sum or for a reduced hourly rate? This would give more people access to what is becoming a rather elitist system and at the same time greatly endear the legal profession to the public at large! Another example of my naivety but I live in hope!

  5. Graham says:

    I like the cut of your jib Rachel. I agree with everything you say, it is not too much to ask.

  6. Divorce Blogger says:

    In regards to divorce, I believe that the government are trying to push people to proceed with uncontested divorces. Considering that the Office of National Statistics report that 95% of a all applications for divorce are indeed uncontested, this would, to the layperson, make a great deal of sense.

    Those ‘in the know’ would point to the fact that only 77% of these divorces remain uncontested, however, and if one party can afford representation whilst the other cannot, then disparity is a foregone conclusion.

    I agree that representing oneself when embroiled in a matter as emotive as divorce is indeed a false economy. I also agree with Rachel in that solicitors nationwide need to adjust their pricing structures in order to accommodate the less affluent and ensure that all members of society are afforded access to justice.

  7. Graham says:

    With the CSA de facto effectively marrying people anyway, as maintenance is payable upon split (de facto divorce), I think there will be fewer of these (divorces) anyway. Already I hear more and more exasperated lawyers on the radio pleading for more people to come to them for a divorce and their business.

    I would rather child maintenance was back with the courts. Might also reduce fatherless rioting feral youths caused when the women chuck the men out.

  8. Marilyn Stowe says:

    Graham you make an interesting point along the lines of a piece I wrote for the Yorkshire Post yesterday.
    I was listening to a debate on Radio 4 driving to work, when some of the blame for the rioting was placed on “broken families”
    When I arrived at work I quickly wrote a short piece which the Yorkshire Post printed today.
    When it appears on line I will amend this reply to include a link.
    I think there are hundreds of thousands of families who are currently treated as “invisible” in law:- families where the parents have never married and are living apart. They have no legal rights per se on family breakdown unlike married couples, and they lack respect from the rest of society. I argued that we have to accept society as it is, not as it was or how we would like it to be, and we need to start by recognising and respecting the needs of all families including those that do not fit the stereotypical mode of fifty years ago especially for the children.
    At the same time I added, I do not condone any criminal behaviour, which needs to be fully dealt with by the courts.
    Marilyn

  9.   Only fools and clients (From Solicitors Journal)|Untouched Smile says:

    […] Only fools and clients (From Solicitors Journal) is a post from: Marilyn Stowe Family Law and Divorce Blog […]

  10. Graham says:

    Yes, I listen to Radio 4 too, and heard the same point there, and on 5 live and on newsnight.

    I think we agree on the way things ‘should be’. The aim being to reduce fatherlessness and single parents.

    Although not how to get there. I think should be done by encouraging them to marry by abolishion of the csa and welfare payments promoting marriage. You ‘seem’ to argue to make co-habitation equal to marriage.

    I would say though, without wanting to sound racist, that we English do not like being told what to do, and I do not think you will be able to force people to marry. It needs to be done through encouragement. Such as through putting child maintenance back with the courts who can have discretion towards supporting two parents. Best Regards, Graham P.

  11. Marilyn Stowe says:

    Marriage is very different and I dont equate marriage with cohabitation. However I do recognize non marital relationships do exist, I don’t dogmatically ignore them and I think we need to legislate for such relationships not least because it accords a large proportion of couples and their children a form of respectful, legal recognition.

  12. Graham says:

    Thing is, if you do that, even fewer people will get married. Fewer people would live together also and the matter would get worse. I think it better to encourage people to stay together through the welfare system inc. child maintenance. I’d also encourage marriage in the same way.

  13. Marilyn Stowe says:

    This is the link to the Yorkshire Post article mentioned above:

    Marilyn Stowe: New Britain’s ‘broken families’ need protection of the law

  14. Lukey says:

    “I believe the courts will always try to deter LIPs perceiving them as lacking the necessary skills and but surely a system could be introduced whereby less wealthy people could be means tested by the solicitor and a fee agreed for a fixed sum or for a reduced hourly rate? ”
    =========================================================

    Rachel, sadly I don’t see that happening, lawyers would end up earning less – does anybody see that as a likely prospect ? I would be very happy to be proved wrong but I am not holding my breath.

    The push for legislation on cohabitation will get louder and louder from the legal system as the number of divorces (due to people not marrying in the first place) dwindles. Think about it – in the long term how will all these lawyers make a living otherwise ???

  15. Peter says:

    The system in the UK does need a complete overhaul wrt divorce. We have a system that is totally unfiar and deliberately made complicated by lawyers/solicitors who are only out for personal gain. We have legal people just trying to outwit the other side as well as their clients, Im still amazed that it can take 20 to 30 hours to peruse and consider simple documents and in todays financial climate people cannot afford these costs. I say power to the people, there are many cases won by litigant in person, you only have to go on the internet to read solicitor horror stories as well and complaints made to the law society.

  16. Marilyn Stowe says:

    Lukey it’s much more complex than you make out.
    I’ve been campaigning for legislative reform for years and got nowhere knowing all the while that of course people would say this is for my and other lawyers benefit. Its the usual argument.
    But where I’m actually coming from is advising an entire class of people for year upon year that sorry, the law doesn’t recognize you. You are being treated as morally reprehensible and therefore have no legal rights.
    If we continually talk down, ignore, abuse an entire class of society, refusing to recognize them, refusing them legal entitlements, treating their children as invisible and irrelevant compared to other groups why are we so surprised when anarchy ensues?
    As for legal costs, a post is coming up.

  17. Graham says:

    Just because they don’t have the legal rights that you think they should have doesn’t mean that they do not have legal rights. You are over-exaggerating your point to the extreme that what you claim is the situation actually isn’t. Chil maintenance is payable even if parents are not married is one example. Council houses is another. Sorry, but your post comes accross as a little bit like Marie Antoinette ‘let them eat cake’ and a bit patronising and detached from the working class. I am much more worried about working class boys (who can’t get pregnant and the following council housing) than the girls.

  18. Rachel says:

    Looking forward to the post about legal costs. Must just mention at this point that I did avail myself of your free clinic which was immensely helpful and appreciated. I could not afford the hourly rate quoted to take on my case but at least your clinic is a step in the right direction.

  19. Graham says:

    Just read your 1st post Rachel. Am in a rush but wanted to say that my case as a LIP against a rich ex father in law was very similar. All the best for the ending. I think you should instruct a solicitor and barrister to not negotiate but go to the final hearing for what it is worth. Should be able to do that for <10k£, perhaps if you ask Marilyn nicely?

    I also did all the free 30minutes sessions with all the solicitors in my town also as I had this on Ancillary Relief and Child contact also. Both I did LIP, both I did less well and had to take a lot of unfair criticisms through not having lawyers.

  20. Marilyn Stowe says:

    Rachel I don’t know which office you visited or who you saw but thanks for the compliment and feedback.
    I am in Harrogate and Hale offices this week and Harrogate Hale and London the week after. If you would like to discuss your case with me, free of charge, please telephone Paul Read on 01423 532600 to arrange an appointment.

  21. Tulsa Divorce Attorneys says:

    I agree with, the outcome will ultimately hinge on the facts of the case, not the skill of the solicitor. All things being equal though, the solicitor’s skills will determine the outcome.

  22. Tulsa House Cleaning says:

    Marilyn I agree with, it’s always nice to receive compliments.

  23. Denise says:

    If a Section 28 1(a) Bar has been imposed, can one apply to have it removed , providing it is before the expiration of the term of the maintenance.

    • Marilyn Stowe says:

      Hi Denise
      A Section 28(1)(a) bar prevents an extension of the term. However I haven’t seen the order, I cant advise you what your order actually does mean and you MUST check it with a solicitor to be absolutely sure about what it says and if its an extendable term.
      Regards
      Marilyn

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