Family lawyers – and the rest

A guest blog by Jeremy Westhead

When I’m not worrying about family law, my day job involves working with lawyers across a wide range of disciplines. This ranges from corporate and transactional (think mergers and acquisitions), though finance (banking), tax (across multiple jurisdictions), regulation, general litigation and employment. I dread to think how many emails I send and receive from lawyers in a year, how many meetings I sit through, how many hours are spent in conference calls.

The fees we pay are in the millions of pounds per annum. On one recent transaction I paid legal fees to five firms across four different jurisdictions. When my family court troubles were at their peak, I could go straight from a conference call with employment lawyers to a conference call with family lawyers and on to a conference call with tax, regulatory and corporate lawyers wrestling with the establishment of a new company.

At work, we take painstaking care in our interactions with law firms. This consists of building a relationship with senior partners over time, from first meeting and discussion of what they can offer us, through getting references and then taking soundings with peers elsewhere in our industry. We need to understand who will be delivering the legal services we’re buying – will we just see the partner at the beginning and end, or will they be playing a more active role, demonstrating that we are an important client? Like all contracts we enter into, the formal engagement letter, in which we appoint them to act for our business, is closely read and considered and negotiated – including any fee arrangements.

Once we’ve selected a firm, we make sure there is regular feedback – both ways – as to how we can be better users of their services and how they can provide better services to us. Sometimes we’ll vote with our feet if we’re disappointed: there’s one large firm out there that’s about to find out it’s not acting for us in a matter it was hoping to work on.

It’s a small world and we are constantly asked by others in our industry for feedback on particular solicitors and law firms.

Over past few years I’ve also had the chance to engage with lawyers from a different part of the legal world – family lawyers.

This has been in respect of both post-separation finances, and arrangements for our children. I am very lucky in that I am used to engaging lawyers, and indeed have far too many lawyers in my family and friends network. That, combined with access to Legal 500 and Chambers and Partners (I am an extensive referee for both in my day job), has meant I was able to identify excellent, well-rated, family law solicitors and counsel.

Despite all that, it is fair to say that the process of engaging legal advice and representation was simply not as thorough as it would be at my place of work.

Grabbing at life rafts

At a time of emotional trauma and urgent need, this is what tends to happen: you’re given a name by a friend or contact and you cling to it. You quickly run that lawyer through the reference guides and… that’s about it. You’ve found somebody! Hurrah, your troubles are over! You cling to that lawyer like a life-raft. I signed the engagement letters after a cursory glance and filed them away.

Over many months and countless hearings, I muddled my way through and despite the occasional trip-up ended up in a good place. But I’ve learnt a few things along the way. Due to jurisdiction and availability issues, I worked with several firms of solicitors and a selection of leading and junior counsel (as well as seeing the work of multiple firms of solicitors as my former wife engaged them) – and the experience highlights some questions: would I recommend lawyer Y for more cut-throat litigation; would I recommend lawyer X for more consensual matters? Would I recommend barrister X for the lower courts or the higher courts? How would a lay client know how to really pick the lawyer for the issues at hand?

Different dynamics

Throughout I was conscious that the dynamic I encountered was very different from my day job. For a start, there wasn’t really any thought given by either side to feedback on how things were going or had gone. Indeed there was some surprise when I expressed a wish to see the final draft of documents before they went out in my name. Next, you’ve got relatively little idea of what “good” looks like (certainly at the start of the process) and you don’t know whether the lawyer is doing what they should, when they should. Add to this, as a single individual, your relative importance to a law firm is going to be far less than it is if you’re a big corporate client.

I think it’s fair to say that my former wife went through a similar experience to me, though seemed less fortunate in the sense that some lawyers she engaged seemed to lack a certain something in quality – and indeed honesty, for which I later received an apology.

As a result of my experiences, I now help to run a group for parents involved in the family court. It has over 11,000 members – a terrifying number in itself.

Unfamiliar territory

From time to time questions regarding interactions with solicitors come up. It’s worth nothing that most of these parents have never instructed a solicitor before (let alone a barrister), other than for buying or selling a house. Parents seem to be entirely dependent on the luck of the draw as to how their legal adviser engages with them, how good they are, or what level of service they receive. If they are unhappy, they don’t know whether it’s because the lawyer has let them down or whether that’s just life in litigation.

The average “consumer” of family legal services is essentially an unsophisticated buyer. They have no idea what to look for, how to check professional reputation, how to consider if this lawyer who, say, did a great job on a friend’s finances after divorce, will be a great lawyer for a disputed internal relocation. They’re unlikely to appreciate that they need a professional adviser to understand the strengths and weaknesses of a case; instead, they’re desperate for a fearless advocate who believes their version of events and will do battle for them on their day in court on that basis, regardless of the flaws.

This expectation, I’m sure, comes from what is seen in TV drama, not on prior experience or an educated understanding of what to expect if you’re involved in the family court – because how can we understand what we can’t see? An opaque legal system which makes it very difficult to report what actually does go on in court means that good information cannot drive out the bad.

Good service seems to be measured by clients, if it is measured at all, by the outcome in court, regardless of the merits of the case they are paid to advance. I am reminded up a friend who is a surgeon who some time ago pointed out that sometimes the best hospital can be one with, on the face of it, terrible outcomes – as that is where all the really tough cases are sent (it’s possible of course that league tables have improved since then, I’ve not kept current).

Where to go from here?

There is a need therefore for:

Clearer more accessible public client feedback (not just for the very top end of the profession); perhaps a tripadvisor-style website for family lawyers? Not just the solicitorsfromhell. Clearly there would need to be suitable moderation to ensure that anonymity is not lost.

Consideration should be given to more actively seeking feedback from clients at the end of every case. Whilst time and cost may limit how much can be done, perhaps it could be automated and simple. Even for very small firm / sole practitioners: you may think you know what your clients think, but you may be wrong.

More open family courts – so that what happens, what advisors do, and who has what role, are better understood so that the expectations gap is, at least, reduced.

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