Should family lawyers specialise?

Family Law|June 13th 2016

Some aspiring lawyers know precisely what area of law is for them. Others, myself included, have a more open mind. Thus, in the early years of my career I tried my hand at most of the types of work carried out by the provincial ‘high street’ practice. I did a bit of residential conveyancing, a bit of probate, a bit of civil litigation and a bit of crime, amongst other things. I also did a bit of family law work.

Gradually, due to the needs of the firm I then worked for, the family law work began to take over, and I began to consider myself a family law specialist. I liked this: family law was my “comfort zone”, where I had a fair idea of how to deal with most of the various problems that my clients brought to me, without having to seek outside help, whether from colleagues or text books. It also, I remember, made me much more confident in court – appearing before the magistrates on a criminal matter, for example, could be a nerve-wracking experience, always worried that I would come across a situation beyond my knowledge, with no one to turn to.

So I became a specialist family lawyer. However, that was not the end of the specialisation process. For the first fifteen or so years I did all types of family law work, ranging from divorce and finances to public law children work. Then I gratefully jettisoned legal aid, and with it the public law work. I had become a specialist family lawyer, specialising in private law work.

I think it is true to say that most family lawyers these days are specialists, and do specialise either in private or public law work. But is this a good thing?

The question was raised the other day by Supreme Court Justice Lord Sumption, in a speech that he gave to the At a Glance Conference (incidentally, the speech was given at the Royal College of Surgeons, not to the Royal College of Surgeons, as one report suggested!). The theme of the speech was the proposition that legal specialisations are “essentially bogus”. Lord Sumption argued that one area of law cannot be practised in a vacuum, as he did not regard law as comprising distinct bundles of rules, one for each area of human affairs. No area of law is completely self-contained. Accordingly, he argued, less specialisation would be of benefit to lawyers.

Lord Sumption is, of course, in an almost unique position to put his case: Supreme Court justices routinely have to deal with cases outside of their specialisation. He sees this as a strength, although some may find it strange that family law cases at the very top of the legal pyramid can be decided by people who have never practised as family lawyers.

Whatever your view there is, of course, some merit in Lord Sumption’s argument. As a family lawyer you regularly come across cases that impinge upon other areas of law, the prime example perhaps being cohabitee property disputes that can involve principles of land law. Clearly, some knowledge or experience of other areas of law can be a good thing.

However, there is something about family law that does, I think, differentiate it from other areas of law, and it is actually a point often made in a disparaging fashion by non-family lawyers: family law does not actually involve much law. There is, I think, some truth in this.

Take, for example, a typical dispute between parents over arrangements for their children. How much law is involved in that? Very little, I would say. Instead of looking up legal text books one has to search for answers in a very practical, almost non-lawyer, sort of way. No amount of legal training will prepare you for that – you can only pick up the necessary skills through experience, putting a premium on specialisation.

By its very nature, family law is far more personal than pretty well every other area of law. Family lawyers have to have skills that simply aren’t required by lawyers practising in other areas of law, and those skills can’t be acquired other than by doing the work. The corollary to this is that non-family lawyers who ‘have a dabble’ in family law can quickly, and with no disrespect to them, cause serious problems for their clients. A typical example of this, that I came across myself on a number of occasions, is the civil litigation lawyer, whose task, for example in personal injury work, is in essence simple: to get as much money as he can for his client. However, such an uncompromising, ‘unconciliatory’, attitude is not always the best approach in family matters, and can jeopardise the prospects of cases being resolved by agreement.

And then can you imagine how things might go if a non-family lawyer were to try his hand at public law children work? It doesn’t bear thinking about.

I’m not saying that is isn’t possible to be an ‘all-rounder’. There are some very good lawyers out there who deal with different areas of law. However, I would suggest that as a generalisation it is far easier to be a good family lawyer as a specialist, than as an all-rounder.

The full text of Lord Sumption’s speech can be found here.

Author: Stowe Family Law

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