Two teachers: what business taught me about family law, and vice versa

John Bolch over at Family Lore kindly described my last post as “interesting stuff”. It’s funny how posts develop. I began with a nod in the direction of the Government website Directgov and the useful information it contains, but found myself pulled back to my first experiences in family law. Looking back, it is these experiences which have shaped my views about how family law should be practised: as privately and respectfully for the parties involved as possible.

The days when I began my training were the days of the great “dinosaur” lawyers. Around the country, there were a few male lawyers of a certain age who had achieved outstanding reputations as divorce lawyers, and who practised family law as ferociously as could be imagined.

They gave no quarter and went all out for a “win”. That was the accepted climate in those days, when lawyers also generally tended to do all types of work. I was articled to one such lawyer, the senior partner of the firm, with whom I spent my entire two-year training contract. He would litigate against the other side in divorce or commercial cases until they conceded, or we proceeded to court. If we said we were going to court, we did. And that ethos has stayed with me throughout my career. If I say I’m going to do something, then I will. I don’t bluff.

He was a brilliant lawyer and a formidable adversary, in or out of court. I understood the desire to win and to have a happy client, but at that time without protocols in force, litigation did go over the top.  There weren’t many deals being cut between the dinosaurs unless they were extremely good deals, and instead war, slugged out within the files often ended in the courtroom.

One case I particularly remember was a fight over the entire contents of a house, brought under the Married Women’s Property Act 1882, which is still in force today.

As the trainee I was given the job of preparing a Scott Schedule, which was a huge document in which every single item in the particular house was listed and to which both parties had painstakingly placed values, also explaining why they considered the item was theirs. All of this I listed in four schedules next to each item. The court was to be asked to rule which of the items on the schedule belonged to both parties. It took another trainee and me several weeks to draft and prepare the schedule of contents, going through lists of all the contents, room by room.

In those days there weren’t computers or emails. There was a typewriter with a ribbon. I sat and typed the master copy because it was quicker than dictating to a secretary and risking mistakes, although I remember using lots of Tipp-ex to erase my typing mistakes. My student vacation work, at the growing accountancy firm of Peat Marwick McLintock (now known as KPMG) and the law firm Dibb Luptons (now DLA)  – where I had to type schedules and conveyancing documents nonstop until I was so bored I left them both – had actually paid off!

Copies of my beautifully prepared Scott Schedule were then sent to the court and all the parties, and we finally headed off to court for a week-long hearing.

On the first day the judge called the parties before him and stated that unless they agreed beforehand, he intended to avoid wasting court time by ordering an auction sale and an equal division of the net proceeds. The parties were staggered. This had never occurred to them or their lawyers. But faced with an implacable Judge, they settled within a couple of hours. It all felt like an anti-climax after so much hard work. But looking back, it was a learning curve. Now if a client wants to litigate about contents – and some still do – I always advise along those lines and encourage settlement.

Not every case did settle. Many were litigated and all the unpleasant correspondence that had passed between the dinosaurs was handed up to the judge. I don’t recall any criticism by the judges of the style or content prevalent at that time, but nowadays it would be a different matter. For example, in reply to one particularly complex three page offer of settlement that I had helped to draft, I won’t forget how our dinosaur opponent replied:

Dear Sirs,

Thank you for your letter.

No.

Yours faithfully.

Today I would advise clients who complain that a letter isn’t sufficiently aggressive that it’s not the other side you need to consider, it’s the judge. Never write a letter that you would mind the judge reading.

However quite a lot of the no-holds-barred style was bound to rub off on me, and it did. Fortunately, alongside the legal training, I had other training too.

My father and his co-director (above), who are still looking great although they are both now in their 80s, used to have lunch every day near my office and I would join them as often as I could. Self-made, they had left school at 14 and both knew plenty about desperately hard times.

By the time I was in my 20s they were running a successful business. They were importers and wholesalers who bought and sold goods in large quantities. They also used to manufacture and sell their own range of branded kitchenware. There wasn’t room for litigation stand-offs in their business. Instead they made deals. They had a friendly relationship with suppliers and customers alike, and a great sense of humour. So it was by listening to them and understanding their business style that I learned about a different way of negotiating and making a deal, whereby both parties remained on good terms, and thus kept continuing to make deals. They weren’t naive, far from it, but it was the only way to grow a business and it worked for them. Sometimes it still works for me too!

When they eventually sold the kitchenware business I negotiated the contract. I remember sitting in my father’s office, doing what he did, smiling and being pleasant in my LA Law-type business suit as I sat opposite the purchaser and his London lawyers – but I didn’t shift an inch. My father had told me they definitely wouldn’t walk away, so I conceded nothing. It worked very successfully to the point where the purchaser asked his London lawyers why he had brought them with him!

I learned from the two of them how to run a business, which is very different from running a client’s file. They didn’t know it at the time, but alongside my formal legal training I was getting brilliant training on how to operate a successful business from the bosses, which helped me far more than they or I could have ever imagined.

So by the time I set up my first tiny office I’d had two sets of training, both of which have proved invaluable through the years.

Have times changed in family law practice? In my previous post I highlighted that the procedure for non-contested divorce proceedings has changed considerably. There are tighter court controls, family law protocols; there is a different emphasis on the practice of family law through bodies such as Resolution and the Law Society’s Family Law Panel. But are lawyers practising in an adversarial system really any different?

I sometimes wonder if, despite the changes, the days of the dinosaur family lawyer are truly over. I’m no longer a trainee, so my perceptions have changed. The dinosaurs may still be out there. And if they are, then given the numbers of women lawyers who have now done well in family law and head their own firms or departments, I suspect they are more likely to be female!

(And for all I know, perhaps there are younger lawyers out there who might just think that I am one…?)