The tools of the trade – recent cases show lawyers must think differently
There appears to be an increasingly cold wind blowing for lawyers who fail to embrace new ways of working and promote more constructive dialogues between divorcing couples, as demonstrated by two very different court reports that were released in the last few weeks.
This was an English decision in matrimonial finance proceedings. While judges often lament the fees that couples accrue in fighting their divorce through the courts, it is unusual for them to criticise the lawyers involved for their part in escalating those fees. In this case, however, that is precisely what the judge felt compelled to do.
Mr BX had instructed a very high-profile firm of solicitors to represent him in his divorce. It is clear that there was no love lost between the couple and he clearly set out to be as difficult and obstructive as possible, something that was facilitated by his lawyers.
The divorce kicked off in the worst possible way. The judgment records that Mrs BX received a letter from Mr BX’s solicitors shortly after Christmas informing her that he considered that their marriage had broken down and enclosing a draft divorce petition. The judge said:
‘It will rarely be appropriate to send a draft petition at the same time as informing the surprised recipient of the shock news. Certainly, in my judgment, it was likely to cause offence, and in the event did cause offence, to send a draft petition in the way that he did.’
Naturally, Mrs BX sought advice from her own solicitors. Mr BX’s solicitors wrote to them and asked them not to apply for a financial order before a given date so that they could explore the possibility of a voluntary, out-of-court negotiations, which Mrs BX’s solicitors readily agreed. Mr BX then made his own application to the court before that deadline had been reached. The judge commented:
‘Whilst I am prepared to accept that, at the end of the day, solicitors are only as good as the instructions they receive from their client, I regard it as plainly wrong that the husband’s solicitors should have acted in this way.’
‘I regard the conduct of the husband’s solicitors in acting in this way as having been likely to exacerbate the difficulties between the husband and the wife. This is contrary to the duties of solicitors in such cases.’
‘I cannot find any justification for the way that the husband’s solicitors behaved in acting as they did in relation to the issue of the Form A. ‘In reality – had the husband’s solicitors advised the husband against the course of conduct that was adopted, they would have been able to deal with things differently.’
He concluded:
‘The consequence of the events that I have described above has, in my judgment, significantly contributed to the fact that this couple had become locked in contested litigation from the outset and any possibility of trust was removed.’
This was a very different case – a personal injury case in Canada, no less. The decision relates to an argument about the extent to which the defendant should be responsible for meeting the successful claimant’s legal fees. The judge reduced the claimed amount by over 30%, including all time charged to ‘research’ saying:
‘If artificial intelligence sources were employed, no doubt counsel’s preparation time would have been significantly reduced.’
These are just two examples of the court becoming increasingly intolerant of the old ways of doing things, and are increasingly expecting lawyers to use all the tools available to them and to adopt a more modern, constructive approach to resolving family disputes.
At Family Law Partners we are ahead of the curve on both fronts. Our expert team are qualified in, and encourage clients to use, alternative methods of resolving family disputes, including mediation, collaborative law and arbitration.
We also embrace innovation, and have developed a number of unique tools to help our clients. We know how challenging it can be for individuals and families to navigate their way through the emotions of family separation, and believe that tools such as our online questionnaire and free child maintenance calculator can help relieve some of the pain and pressure. Find out more about our innovation projects: https://www.familylawpartners.co.uk/innovation/