When lawyers really just need to do better

I have picked up a case recently in the Court of Protection, representing a family member of P. It is interesting, and when I say interesting you can read frustrating, time-consuming and way more complicated that it needs to be. The difficulty has nothing to do with P, and a lot to do with P’s family, particularly his brother.

Now Brother has mental health issues of his own, and has had difficulty retaining a solicitor to represent him because he has a habit of refusing to work with them any time they tell him something he doesn’t want to hear. Which is often a crucial part of a solicitor’s role. So at least 2 firms have acted for him so far, and have both ceased acting for him. The last arrangement ended the day before the latest hearing, just to keep us on our toes.

The case will no doubt be the subject of a more detailed post when it is more progressed. Because so far I think it represents an excellent example of how not to conduct proceedings in the Court of Protection. No one has exactly showered themselves in glory, to date.

But the greatest difficulty at the moment seems to be Brother’s limited understanding of the legal frameworks and processes. It isn’t exactly uncommon for family members to struggle to navigate the Court of Protection processes, and that is one of the reason why I write this blog. But Brother is finding it exceptionally difficult. And he is one of those ‘my ability to Google is as good as your law degree and 8 years experience’ types that do tend to wind up lawyers. Just in case there is any doubt, let me assure you that lawyers do not just sit around googling things, and then shout at each other. Sorry if I am bursting any bubbles there.

Now Brother is trying to understand, and he is picking up bits and pieces of what is said, he’s just not quite connecting them up the way everyone else is. So he is, for his own reasons, completely convinced that the court and all of the lawyers have completely got this wrong and the matter shouldn’t be in the Court of Protection at all. He’s particularly fixated on something one of the other lawyers said in a hearing before I was involved.

Going in to this hearing, we all knew Brother was going to be unrepresented and speaking on his own behalf. We are all very aware that the practice directions require us to make special effort to enable someone representing themselves to understand the proceedings. And we all knew that Brother might latch on to something we say that he thinks helps his argument and then bring this up for the rest of the proceedings. So you’d think that would make us all try harder to be really clear about what was said in the hearing to give him the best possible opportunity to understand what is happening.

Unfortunately, that isn’t exactly what happened.

I have, for most of my career, dabbled in advocacy. When in local authority, it was incredibly difficult to justify the expense of a barrister for anything but the most legally complex hearings. So if there wasn’t actual questioning of witness taking place, and the required travel wasn’t prohibitive, little ole me would show up at court and present a case, whilst the other parties would regularly send barristers.

It’s a little different in my new job, and given the potential for this case to blow up in my face, I thought I’d let a more experienced advocate deal with this one. So I booked counsel from a reputable chambers, and prepared to simply take notes in the hearing.

The hearing was presided over by a tier 2 judge. She is, by all accounts, an experienced judge with a reputation for being fair and reasonable. There had been a bit of a mix up with diaries though, so she wasn’t expecting to deal with this case until she received the bundle and papers the day before. This case isn’t really the kind of case you want to just land on your desk.

It was clear she was really struggling to understand what Brother was trying to say, though, which did make Brother more agitated, and in turn made the judge more irritated by his behaviour. At one point in the hearing, which was conducted remotely, she muted Brother, and refused to unmute him until he had calmed down. She was, of course, very professional throughout. But her irritation was clear. For the record, it was also completely understandable!

The local authority had sent a barrister, and their solicitor was also there. I’d not worked with that barrister before but he has a good reputation. He didn’t live up to it in this hearing though.

You see, lawyers have this way of speaking, especially in court, that can be almost unintelligible. It often seems like we’re being paid by the word, with long often disconnected sentences and lots of big words that make us sound clever (or so most of us think). For my part, I prefer a plain English approach which is probably why I am on here talking to you all, rather than preparing complex legal arguments.

Anyway, Barrister 1 was in full flow during this hearing, to the point that I could only grasp his point when I wrote it down and could read it back to myself. So Brother is really struggling to understand already.

But worse than that, Barrister 1 actually said a number of things that were wrong in law as well as getting a few names wrong in the mix. They were arguably little things, references to the wrong sections of legislation, mixing up case law names and dates. His principles were sound. And every lawyer in the virtual room knew what he meant.

But that isn’t really the point. Because as far as Brother is concerned, it makes the whole proceedings even harder to follow. If he identifies any of the errors then he will, having watched far too many courtroom dramas, think that this is grounds to have the whole case thrown out. The fact that everyone in the hearing went along with the errors will, in his eyes, fan the flames and provide yet further evidence that we are all conspiring against him.

Barristers don’t tend to think of that though, as it’s solicitors that bear the brunt of the angry telephone calls and aggressive emails.

Then there is the barrister I instructed. Let’s refer to her as Barrister 2. Now our client has similar views to Brother, but is trying very hard to work with the local authority as much as she can. This hearing was a straightforward directions hearing and the judge made it clear from the start that she would not be hearing argument on the wider points, and rightly so. But our client is still rather frustrated about the local authority’s approach in this matter. With good reason that I hope to explore in a future post.

For the purposes of the directions hearing, we agreed with the local authority, but we agreed with little else. And so our client was looking for at least a little bit of ‘fight’ from her legal representatives in the hearing, so she would feel listened to and understood. But Barrister 2 and I hadn’t had the opportunity to speak prior to the hearing and the written instructions I sent her must not have been particularly clear on that element. So Barrister 2 said about 3 sentences in the whole hearing which basically amounted to ‘we agree with everything Barrister 1 said’. Which wasn’t especially satisfying for our client and served to make P’s family only more convinced of some elaborate conspiracy against them.

And yes, I did have a very unhappy client after the hearing and I had to do a lot of explaining and placating.

Barrister 3 was there, instructed on P’s behalf by the Official Solicitor. Of the three, he gave the best account of himself, but still used a lot of ‘lawyer-speak’.

Brother didn’t get what he wanted, which was no surprise to those of us who understand the system. But the way the hearing was conducted only aggravated his bad feeling.

Now I am not suggesting that if any of us had taken longer to explain what was happening that Brother would suddenly have become co-operative and compliant. After all, he is who he is. But I can see why he, and to a lesser extent my client, feel let down and persecuted by the system, and us as agents of it. Because the lawyers in that virtual room, when faced with a difficult and uncomfortable situation, retreated behind their wordy walls, using the English language to misdirect and mystify like a magician with their cloak.

Time was limited, and I don’t doubt that the outcome and process was explained to Brother outside of the hearing (indeed I suspect this is exactly why he stopped working with his solicitors) but as far as justice being seen to be done goes, I think we, collectively, barely scraped a C grade.

Had everyone been more concise with their explanations and been more plain in their speech, then we would have had a recording to document the efforts that were taken to enable Brother to engage (hearings are recorded, if you didn’t know that). Instead the whole thing had the faintest hint of elitism and that makes me a little uncomfortable.

For my part, I’ll be using a different barrister for the next hearing. And I’ll be sure to make time to have a full discussion with them in advance of the hearing, so we can hopefully play our part more visibly next time.

In case it isn’t obvious from the fact I still haven’t identified the authority I used to work for, or the organisation I now work for, the views expressed on this blog are my own opinion and not the opinion of either that local authority or organisation

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