From my latest Solicitors Journal column “Family Business”, 03/08/2012.
Lawyers instructing their peers in divorce proceedings should remember that family litigation is based on more flexible principles and with a different type of objective than other disputes, says Marilyn Stowe
Recently, I instructed a solicitor to act for me in a boundary dispute because I believed a developer’s new building edged onto our land. Instead of advising, I was being advised. I learned that if I was unsuccessful, the case could cost me dearly with two sets of substantial legal costs to pay. I was shocked at the difference in approach to that of family law. It was rigid. Inflexible. Fairness had nothing whatsoever to do with it.
For the first time in nearly 30 years, I found out what it was like to be on the other side on the desk. At my first appointment, I noticed the lawyer kept glancing at his watch. To me it was quite clear that he wanted to get away for lunch. Perhaps he had sufficient instructions from me, but I didn’t feel he had. I was seeking reassurance. Then, when his first bill arrived just two weeks later, I realised that the cost estimate I had been given was too low. I found it alarming and dispiriting.
I knew little about litigating in the Chancery court but I decided to represent myself, instructing counsel as necessary. With some luck on my side, I had the building removed. If I hadn’t been a solicitor, able to control my own legal costs and determined to research every possible angle, what would have happened? Blinkered, I might have continued and incurred eye-watering fees to little avail.
When you find yourself on the other side of that desk, with all the instinct and insight that being a lawyer brings, it makes for an enlightening experience. The same applies when you are a lawyer with a lawyer client in the same position with you. My firm has acted for many lawyers over the years and of course, it is always a compliment to be instructed by your peers.
Overall I have found that lawyer clients benefit from the same qualities they use in their day-to-day work. They are intelligent, often fiercely so. They are articulate and confident. They can grasp the ins and outs of a complex situation quickly. You might imagine that a lawyer would make an exceptionally demanding client, but I have found the opposite to be true. Lawyers are realistic and pragmatic. Because they belong to the profession, they understand risk. They understand costs. They understand that it can take time to bring about a good result. They “get it”.
However, it can also be a challenge to have a lawyer client who has no experience of family law. Family law operates on the basis of flexibility, the exercise of wide judicial discretion, the intent being always to achieve a fair and reasonable balance between the parties. The outcome is only predictable within parameters. The general rule is each side pays their own costs. To other lawyers, all this is mystifying. The concept of achieving fairness for both sides is as alien as the exercise of wide judicial discretion which, even worse, is rendered permissible by the deliberate lack of precision within the statute.
In some areas of law, a hard-headed and confrontational approach is the norm. Reams of unpleasant correspondence may also be required, along with lots of experts and witnessesIn some areas of law, a hard-headed and confrontational approach is the norm. Reams of unpleasant correspondence may also be required, along with lots of experts and witnesses
To other solicitors, I have this advice to give: if you find yourself on the other side of the desk in a lawyer’s office, then provided you have confidence in your solicitor, sit back. In family law, for example, our playing field is definitely not solid or even sure ground. I tend to think of it more as ’marshmallow’. For the best results we must play by family law’s ground rules, because it is easy to stumble. It may feel strange to be the client, but trust the odd-sounding advice you are given and follow it, however unfamiliar it appears. Let your lawyer do his or her job.
I have found that although it is a compliment to be instructed by one’s peers, it is an even bigger compliment to be banked on by them.
Marilyn Stowe is the senior partner at Stowe Family Law. She blogs at www.marilynstowe.co.uk