Turn your mind back to 20 January 2021, the day of Joe Biden’s inauguration, which felt like an occasion when the world let out a communal sigh of relief. If you were lucky enough, as I was, to watch the ceremony live, you may remember the delighted glee on Kamala Harris’ face as she swore the Vice-Presidential oath, making history as she did so. You may remember the exuberance and joy with which Lady Gaga sang the US National Anthem and you may then remember the astonishing performance of Amanda Gorman, the American Youth Poet Laureate, reading her inspirational poem “The Hill We Climb”. I was thinking about this poem recently and revisited it. As I read it, some lines leapt off the page:
“…we know our inaction and inertia will be the
inheritance of the next generation.
Our blunders become their burdens.
But one thing is certain:
if we merge mercy with might, and might
with right, then love becomes our legacy
and change, our children’s birthright.”
Maybe us family lawyers can see those children not just as those whose lives we impact on a daily basis, but the next generation of family lawyers who long for their leaders to lead by example, to practice what they preach and to lead without fear. Otherwise, our blunders will become their burden, which in turn impacts those other children we serve who deserve so much better.
But there is hope if we dare to dream. Andrea Gorman finished her poem with these lines:
“The new dawn blooms as we free it.
For there is always light,
If only we’re brave enough to see it.
If only we’re brave enough to be it.”
We have an opportunity now like no other ever before. A year of lockdown has delivered lesson after lesson and we must learn those lessons now or risk never learning them. One of the lessons we have surely learned is the need to look after ourselves better. Another is that the system really does not serve the families it was set up to serve. There seems to be universal acceptance that things need to change and that practitioners need to learn at a deeper level about the context of their work so that lasting change becomes a reality.
I don’t want to pour cold water on this. Far from it. In fact, I am passionate about the need for change and have talked about it for a very long time to anyone who would listen. But my caution comes from a fear that we will not be “brave enough to be it”. Not brave enough to be the change we want to see.
I know this view will be unpopular and that not everyone will agree with me. It may be that those who do agree are in the minority. But I ask that you hear me out and then we can talk about where we agree and disagree. We can at least listen and try to understand the other point of view.
I write as someone who has spent the best part of 40 years at the coalface of family law. I have seen a lot of changes (mostly for the better) and a lot stay the same. I have seen the effects of this work on practitioners and I have felt the effects in my own life. I have felt ill at the mention of a client’s name. I have comfort eaten to deal with the stress of the work. I have had sleepless nights worrying about clients and their children. I have railed at the injustices that are sometimes unwittingly done. I have pleaded with judges to really hear my client’s story and to consider a different way of dealing with the situation. I have walked alongside countless people and willed them get stronger and believe that “this too will pass” and life will improve again. I have been vulnerable. I have been fearful. So, even if you don’t agree with me, I hope you can recognise the place where I am coming from.
My premise is that family lawyers (probably all lawyers) are riddled with fear most of the time. And this is the one thing which needs to change at a cultural and fundamental level if there is to be any real change in the way that family law is run in this country. I focus here on family lawyers because they are my tribe, but a lot of what follows could well apply equally well to other branches of the profession too.
Let me start by listing a few of the things of which I think family lawyers are fearful:
- of not hitting billing targets (I might just check in now and see if anyone who disagreed with my premise still disagrees!)
- of getting things wrong/not doing them well enough
- of being “found out” (ie that beneath the veneer you are not that great as a lawyer) – something I have suffered from throughout my career
- of someone checking your work while you are on holiday – is this why, since the invention of handheld devices, lawyers have rarely left them at home when on holiday, so they can keep “being in charge” of their cases?
- of missing deadlines (some of which are self-imposed)
- of clients complaining about you
- of other lawyers/professionals complaining about you
- of being blamed for things that were not your fault
- of having too much work
- of not having enough work
- of losing your jobs
- of losing your clients
- of being thought badly of (by just about everybody!)
- of not, in your mind, doing as well as your peers
- of not having enough time to do a good job
- of not being seen as on the client’s side
- of giving bad news/difficult advice
- of being sued
- of not being paid by your clients
- of being compared (by others) unfavourably with colleagues
- of not knowing how to deal with difficult clients
- of clients who press their buttons
- of having a case against a better/more experienced/more aggressive/better known (take your pick) lawyer
- of not sleeping
- of drinking too much
- of getting ill and having to take time off – which in itself would trigger several of the fears listed above
- of appearing vulnerable
- of being vulnerable
- of being seen as unable to cope
- of not being able to cope
Is anyone not fearful of any of those? Ever? I could go on, but the list is already frighteningly long. The truth, I believe, is that every day of our working lives the chances are we will probably be frightened at some level of one or more of these things and that this fear is endemic in the profession. Despite the bravado of the average lawyer, they are all frightened most of the time of one or more of the things on this list.
And, as we never feel just one emotion at a time, fear can lead to shame (I’m no good at this) leads to guilt (it was all my fault that [add your own example]).
Now put that into the context of the average family law client. They are frightened too:
- of losing their status
- of losing their children
- of not seeing their children everyday
- of losing their home
- of losing their assets
- of being the victim of violence/abuse
- of being a perpetrator of violence/abuse
- of trusting their ex in what they say and do
- of not trusting their ex
- of not being trusted
- of being bullied into a poor settlement
- of not knowing what the future will look like
- of not being able to afford to live comfortably
- of living alone
- of being usurped as parent by their ex’s new partner
- of not knowing how they will cope
- of not coping
- of it costing too much
- of having a lawyer who does not listen, does not understand, does not treat them as an individual
- of not being believed
- of receiving advice they don’t want to hear
- of being shafted by their ex
- of going to court
- of not really understanding what is going on
- of not being able to speak up
- of not being heard or understood
- of not being supported (by lawyers/exes/family – whoever they need to feel supported by)
- of loneliness
- of losing their identity
- of losing their sense of self-worth
- of the unknown future
- of not being in control
- of never getting over it
I could go on with this list too. Most, I think probably all, of our clients will fear one or more of these things for substantial parts of their divorce and separation.
We hold ourselves out as experts in conflict resolution and yet when conflict arises (all the time) we have very little idea about how to really resolve it. This is not just in terms of our clients’ issues but our own issues with the clients, with the “other side”, and often internally within our own firms.
So where does this lead us?
To two (or more) frightened people in the room – the client and their lawyer(s)
I pause here. Of course, I absolutely know that there are many, many truly amazing lawyers out there, heroic lawyers working incredibly hard, going the extra mile, being empathetic, loved by their clients, doing a fantastic job, and acting with the greatest of integrity. But even these lawyers will be frightened of some of the things I mentioned a lot of the time. They maybe just work extra hard to overcome those fears.
If you still don’t believe me, look at the number of family lawyers you know who over the last few years have given up front-line lawyering and will only mediate/collaborate or arbitrate. Or maybe they have left the profession to retrain as a therapist or divorce coach, or maybe they have left the profession and anything family-law related altogether.
It is my firm belief that until, as a profession, we address the fear, as long as we allow the norm to be lawyers swimming in a constant sea of their own anxiety, we will never change the way that family law operates in this country, however many initiatives there are that try to do so. Leaders won’t lead in a way that encourages and supports the next generation. Their blunders will become (have become?) the next generation’s burdens.
How did we get here? And… What is to be done?
This is where the discussion needs to be had and I don’t claim I have all the answers. I have a few ideas but it is not an exhaustive list and not everyone will agree with my ideas. I’m OK with that. I want the discussion to be had and I want to hear other ideas. Mine are, I believe, radical and counter-cultural, which in itself makes them frightening but, seriously, nothing, nothing will change to the fundamental degree it needs to change unless we all take this seriously, and discuss it seriously at the highest level with open minds and hearts, and with a huge level of honesty – both individually and as a profession. I do know that the greatest asset of every firm and every set of chambers across the country is its practitioners, and it is therefore critical that we treat them well and provide them with all the support and training they need to do the job to the very best of their abilities, away from a culture of fear and things that distract them away from what matters most – the families they serve.
Before I get to my ideas I want to use one example of a radical change that was introduced to the family law profession nearly 20 years ago and which is now rarely used except in a few enlightened pockets around the country. In London it is now as rare as hens’ teeth. This radical change is collaborative practice.
When it was introduced to great fanfare in 2003 everyone wanted a slice of the action and for a while it flourished, even in London. Everybody wanted to work in a less stressful way, everyone could see the benefits for the clients and for the lawyers. It was regarded as a no-brainer. There have been repeated efforts to boost its use, but so far to no avail. The decline started in 2010 following the 2008 crash. I am sorry if this next bit sounds harsh. Suddenly, and this is perhaps the cynic in me, collaborative practice was no longer as popular because it did not bring in as much money as litigation and there was a fear that lawyers would lose clients. Many trained practitioners were ready with all the reasons why collaborative practice wouldn’t work when it was proposed, yet the alternative was to lead their clients into a court process which we have known for years does not work. But it was familiar and it made money – to the fearful, court can be a comfort zone of sorts. Better the devil you know. Some people who still professed to want to work collaboratively but did not want to risk losing their clients introduced “collaborative lite” where there was no disqualification clause, thereby completely undermining all that true collaborative practice was about. The baby was being thrown out with the bath water. The fears of the lawyers were being put before the needs of the clients.
For all our agreement about the crying need to make the divorce/separation experience better for families, unless we truly grapple with the culture of fear that pervades the profession our new initiatives risk being like the seed that falls in the shallow soil – they will shoot up and flourish for a while and then quickly wilt and die.
Now to my ideas of what needs to be done. The first couple are primarily aimed at solicitors but the rest apply to the Bar too. And, as I say, these ideas are not by any means exhaustive, but they are radical and counter-cultural:
- We need to find a better way of charging for our time. Targets are a dead weight around the necks of many, many practitioners. The temptation to pad out time spent in order to make target is huge. Targets lead to many young lawyers working longer and longer hours each day in order to hit them. I have heard so many times that to record five hours chargeable a day you routinely have to be in the office twice that time. Just crazy.
- This means we have to develop a new business model for this work. A less stressed workforce and more satisfied clients are a good place to start. I appreciate that there is more to it than that. I appreciate that we do have to run profitable businesses but I am sure there are other models if we start to think about them. It isn’t enough to shrug our shoulders and say “it is what it is”. There are already a number of commercial firms who do not operate on a billing target model so it can be done. The challenge is to make a variation of that model (or another model altogether) that works for the family law sector. One idea maybe a co-operative model where the money made in a firm is shared more evenly and there is more carrot than stick? I don’t hold myself out as an expert here but I do know that the current model does not work for (non-partner/director) practitioners or clients. Let’s get our thinking caps on and get creative!
- We have to stop competing with each other (individually and inter-firm). There is so much to say about this so I will just leave that statement out there. We have to stop competing with each other. By doing so we lose sight of our clients’ needs.
- We need to adopt properly reflective practices, which means we need to look in the mirror and we need to be alive to what the toxicity of this work does to our minds and our bodies. When you are not sleeping, when you don’t have time to eat properly, or exercise properly, when your head is spinning, when your to-do list just gets longer, then something will have to give – and it is often your body that sends you the wakeup call. I know of one young lawyer who has persistent migraines and is losing her hearing through the stress of the job. Her body is shouting STOP!!!!! Stop this madness or it will stop you. I am sure that you all know someone who has had to take time off work through stress-related issues or illnesses caused by stress. (Incidentally, if you are doubting the costs/benefits of supervision just compare the cost of it – roughly two to four hours chargeable time a month – against the number of days lost to illness/stress and the answer leaps off the page.) The box CHECK shows the frightening levels of stress in the legal profession generally.
- I believe that our regulatory bodies need to require supervision for all lawyers working in fields of law concerning the lives of individuals. But looking at family law in particular the absence of mandatory supervision makes absolutely no sense when the other professionals working with the very same families – psychotherapists, psychologists, family therapists, counsellors, social workers etc – MUST have supervision to continue to practice. And the crazy thing is that lawyers are often in the front line of professionals being approached by these clients. Clients very often get to us first, so we get the full brunt of their anger, upset and fears, and they transfer their turmoil to us. As a profession we are right in the firing line of vicarious trauma. And we are doing virtually NOTHING about it. A fair number of firms/chambers are addressing this for their younger members but many more are doing nothing at all, or think that free gym membership ticks all the boxes. It doesn’t.
- Until (I’m ever the optimist!) there is a mandatory requirement, the old guard – the members of the profession who have been qualified for 20 or more years – need to stop thinking that this is only necessary for the juniors. It is not. Change will never happen in the radical way that is needed if it is not embraced top down. The juniors in unenlightened firms/chambers often have no voice and certainly no power to change things. And if the leaders are not prepared to lead by example, how can the juniors follow? They will not trust that they can speak freely and openly to a supervisor who is paid for by the leaders of the firm/chambers who themselves are not engaged in reflective practice. Their blunders will be the burdens of the next generation.
- The profession needs to be trained – deeply and widely – in the essential skills which will help them hear their clients and understand their real needs. Lawyers need to understand that to help our clients, who are often living in dysfunctional families, they need to ensure that their “families”, ie their firms/chambers, are not dysfunctional too – otherwise it is a case of the one-eyed leading the blind. Our “one eye” being our knowledge of the law.
- We need to learn to listen – deeply, attentively, with the aim of really understanding the person in front of us.
- The profession has to stop paying lip service to dispute resolution methods and seriously embrace them. Yes, they may not pay as much as litigation does but they are, generally, much better for their clients. I acknowledge that sometimes in the mad, bad and dangerous cases, court is the only option, but those cases are really few and far between. In other words we have to start putting our clients BEFORE our billings. By the way, this comment is most definitely NOT aimed at publicly funded children lawyers.
- We need to stop measuring success as the number of reported cases a firm/chambers has each year. Reported cases are NOT a sign of success. Not from the clients’ perspective. Legal 500 and Chambers please take note.
- We need to set our boundaries clearly at the beginning of cases, stop over-promising, and stop over-identifying with our individual client’s version of events.
- We need to talk about this – seriously and deeply and over time – and not give up until we have workable solutions which are truly client-centric and which also benefit the lawyers.
- We need to be brave, and far-thinking, and fearless.
- We need to be honest with ourselves and each other.
- We need to not settle for second best, or the simplistic, or just the low-hanging fruit. We might start there but we cannot afford to stop there. Even if this all takes 20 years we have to start and we have to keep going.
- We need to be prepared to be vulnerable and understand that vulnerability is a good thing. We are anyway vulnerable whether we admit it or not – it is a basic human condition. As the acclaimed poet David Whyte wrote:
“Vulnerability is not a weakness, a passing indisposition, or something we can arrange to do without; vulnerability is not a choice, vulnerability is the underlying, ever present and abiding undercurrent of our natural state. To run from vulnerability is to run from the essence of our nature, the attempt to be invulnerable is the vain attempt to become something we are not and, most especially, to close off our understanding of the grief of others.” (Consolations: the solace, nourishment and underlying meaning of everyday words)
We need no reminding that the “grief of others” is the daily context of our job.
If we do all of these things (and no doubt others too) the benefits to ourselves will be profound but the benefits to separating families will be legion and will have a direct and lasting effect on them and their children and their children’s children. And change will happen, and it will last, and our success will bear its fruit for the next generation. We simply cannot let inaction and inertia be our legacy. There is a now a yawning chasm of opportunity to change things. Will we seize the opportunity or will we just go back to the way we were before the lockdown started?
We can do this if we choose to. We can do this if we dare to.
As Amanda Gorman said:
“The new dawn blooms as we free it.
For there is always light,
If only we’re brave enough to see it.
If only we’re brave enough to be it.”
Thank you for reading this. I hope it gets the conversation started. Who wants to talk? Contact me at firstname.lastname@example.org, or if you would like to share your thoughts and experiences with The Review, please do so via the editor, whose contact details are on page 1.
 Readers may recall James Brown’s thoughts on target-free practice in Review 208