Outdated Attitudes

Libby Purves, in her column in the Times , expresses her disgust at the suggestion that divorce can be a way of “winning the life you want”. Divorce, she says, is sometimes necessary, but always lousy - nobody “wins”.

Quite right, and her plea for spouses not to rush straight to the nearest lawyer just because they have endured a miserable Christmas is perfectly justified. Her explanation of why divorce can be more unpleasant than staying together and working at the relationship should be taken very seriously.

But the core messages of her piece - that people just don’t try hard enough to keep their relationships going and that divorce is over-glamorised - is taken too far. While she is right that sites like InsideDivorce.com are rather too enthusiastic (I initially took offence at her suggestion that lawyers were “bragging” sbout the deluge of calls they expected to receive, but having viewed the site I can’t help but agree with her), most professionals supporting people through the difficult decision of whether to get divorced aren’t so self-centred. Good solicitors should make their client aware that divorce is only one of the options available to them during marital difficulties but, once their client has made the decision that divorce is the right option, they need to be supportive of that choice. To continually point out how hard the road ahead will be once they have made this difficult decision is an insult to their intelligence and not the job of the person they have asked to guide them through the process.

Furthermore, to imply that divorce is only justified where there has been physical abuse demonstrates an astonishingly outdated attitude, even without the mocking emotional abuse (“an expression subject to all sorts of hysterical me-generation overstatement”) and “silly one-night stand[s]“ as reasons for divorcing. It may well be that many of today’s failed marriages could have been saved if the couple involved had put more effort into salvaging the relationship, but to describe divorce as a “public admission of failure” simply reintroduces unnecessary stigma, the destruction of which has allowed thousands of people to escape marriages in which they were treated without respect, and whose return would condemn countless more to an unnecessarily wretched existence.

D-Day

Family Lore, Pink Tape and Judith’s Divorce Blog all report that today is “D-Day” (as in “Divorce-Day”) - the first Monday of the year kickstarting the week in which divorce lawyers receive more enquiries from people contemplating divorce than at any other time during the year. The Mirror refers to a survey by InsideDivorce.com claiming that 19% of people surveyed were thinking about divorce. I couldn’t find the results of that survey on the site, so instead here is last year’s survey of divorcees, which reports that 2% of divorces follow from “catastrophic Christmas”.

David Chaplin at Family Law Week Blog is considering the merits of an alternative career directing a TV dramatisation of Neil Medley’s messy divorce, currently in court on appeal. Since this is apparently the same Neil Medley who pleaded guilty to illegally employing three teenage boys to remove asbestos from an industrial plant without a licence he is unlikely to get an easy ride from the media.

Marilyn Stowe has posted a client-friendly explanation of “Sears Tooth” Agreements.

Finally, Charon QC is this week’s guest editor of Blawg Review. He gives a great overview of the UK blawging scene that is well worth checking out.

I have a dream…

Not so long ago, while I was a family trainee, my parents got divorced. They agreed financial arrangements together and my mum went to a highly rated firm to have an Order drawn up.

At the time I was not fully aware of how badly she was being advised. From the rest of my training, however, I now know that the changes her solicitor insisted on making actually exposed both my parents to potential IHT charges, and that his failure to ensure that my dad did not apply for Decree Absolute until the finances had been sorted could have had very unpleasant consequences. The fee for failing to protect his client’s interests and botching unnecessary drafting? Over £5,000.

I expect there are clients up and down the country who have similar stories (or would do if they knew). The fact is, though, that I feel some sympathy for this solicitor. I get the feeling, you see, that the work was not done by one of the partners who had built the firm’s top tier reputation, but by some overworked junior assistant. In pursuit of the noble (and necessary) aim of keeping costs to a minimum he probably received minimal supervision from above or support from below and was left to fumble his way to a successful resolution.

I imagine that a similar story is commonplace in family departments across the country. A big cause of this is that, in divorce, there is no ‘winner’ who can claim back his costs.  Each party’s legal fees come out of what is essentially a shared pot, and the more they both spend on lawyers the less there is to share out at the end. Because of this there is a constant pressure to keep costs down, and this inevitably pushes work from partners down to assistants, or even trainees, wherever possible.  Even in ‘big money’ cases it must be rare to find a client who can afford to have a partner control the day-to-day running of his case.

All this you know. What concerns me is that there is only so much you can learn without training or guidance. When assistants are overworked and undersupervised there is no reason to expect that they will become better lawyers: they will simply be mediocre more efficiently. But what can be done? Increasing supervision is expensive.  Training is expensive.  Purchasing books and online subscriptions is expensive.  How do we balance this with our need as family lawyers to minimise the cost to the client?

I believe there is a way. While most of the legal community has been trundling along with its head down the last few years, the rest of the world has discovered Web 2.0.  In a very simple sense, Web 2.0 refers to web applications where content is created by the user rather than the site owner (think sites like Facebook, Myspace, and Wikipedia), but in a broader sense is part of a general trend towards user-generated content and mass collaboration.

As a teenager my dad would ask me why anyone would share their music on Napster. He still doesn’t understand why people upload videos to YouTube. But they do. They spend their time programming code for open source software and adding and amending entries on Wikipedia. Traditional business models cannot explain the benefit of this ‘free’ work which provides content to others with no discernable profit. Law firms, more than most businesses, value as their key commodity their intellectual property - the combined knowledge and experience of their staff. Why would they want to make that freely available? Surely that would kill any competitive advantage the firm had?

These are reasonable questions, yet some adventurous businesses have taken that very leap of faith and entrusted their secrets to the masses.  In 1999, IBM opened up masses of its data and thousands of hours of its developers’ time to the open source Linux community. Rather than losing out, it was able to collaborate with other developers and ultimately produced a workable operating system for a fifth of what it would have cost them independently. Without this it would have had to abandon the idea altogether and purchase the Windows OS from rivals Microsoft.  Proctor & Gamble have been so successful at sourcing new products by making its discoveries available to outside companies that it has publicly declared a target to obtain 50% of its new innovation from outside the company before 2010.

What these companies have done is exceptional, but the opportunities presented by following their example are huge. The key lies in understanding and retaining those elements that are a business’ unique strong points and being prepared to reduce control over everything else. This requires a new way of thinking about assets that law firms will have difficulty coming to terms with. Nevertheless, the experiences of IBM, P&G and the new generation of collaboration-based companies show that it is possible.

How might this work in family law? Picture a website, ten years from now, which is the first page you open every morning when you get to work. This site has everything you need as a family lawyer: a wiki with information as detailed and accurate as you could find in any textbook; articles written by leading academics; case notes written by the barrister who led the case in court; forums to discuss the latest issues with lawyers from across the country; directories of professionals in ancillary professions, such as accountants and child psychologists, with reviews and comments from other lawyers who have used them; interactive programs where you can learn to improve your advocacy or drafting; or perhaps you could just watch a video of a round table meeting between some of the country’s leading practitioners, academics and judges, or footage from a recent conference.

Now imagine that everything on that website is free. Think of the saving that could be passed on to clients (or pocketed by partners) if there was no longer any need to pay for textbooks, for subscriptions to Westlaw or Lawtel, or spending time and money sending lawyers out to external courses.

Of course, the difficulty is convincing people to contribute content for free. Why send an article to such a website when you could be paid to submit it to a prestigious journal? Why would you spend time contributing your research to a wiki so that someone else can find the information quickly and easily? Ultimately, it will take time for lawyers to learn to accept information sharing as standard, but consider this situation. A junior barrister sees a colleague of similar experience developing a reputation, and being instructed, off the back of articles she has submitted to the site. Might our barrister not figure that the same thing could work for him? Would it not be impressive for a prospective trainee or pupil to be able to demonstrate his commitment and understanding by pointing to something they had contributed. Some well received contributions would go a long way to establishing a reputation in the industry. If nothing else, is it not daft that a hundred clients at a hundred different law firms all have to pay to have the same piece of research carried out? It’s not efficient and it’s not economical. What happened to our desire to keep clients’ costs down?

Ultimately, the success of such a project requires firms to realise that knowledge of the law is not a lawyer’s unique selling point, except in relatively obscure cases. A client doesn’t pick a solicitor for their appreciation of the Hildebrand rules, or even the depth of their pensions knowledge. A client wants a lawyer they can relate to, have confidence in and who can manage their case effectively and economically. You don’t lose any of those virtues by sharing your legal knowledge, and ensuring that all lawyers are well informed does not create unnecessary competition because being a good lawyer is about so much more than knowing the law. Besides, you can tell the world all the facts you learnt from your latest Court of Appeal case, but in terms of both reputation and experience you have still gained something that is unique, that distinguishes you. Sharing knowledge makes us all better lawyers, and the only ones who lose out are those who are short on all those other skills that make a great family lawyer.

At the moment this is all little more than a dream, but there is no reason to believe it is impossible. The ‘Law 2.0′ movement has been under way for over 2 years in various guises. Blawg aggregates over 1,000 active US legal blogs while Nick Holmes at Binary Law lists over 120 active UK legal blogs. The Crimeline criminal law wiki estimates that it has over 1,000 pages that are ‘legitimate content pages’ and boasts over 1 million pages views. It also produces a weekly update which is circulated to over 10,000 criminal lawyers, judges and academics each week.  IPKat reported in August that it had been encouraged by the Intellectual Property Institute to apply for initial funding that would allow it to build up a critical mass of material for an open-access IP law wiki. Already, forward-thinking lawyers are starting to appreciate the benefits that can be reaped from harnessing the power of Web 2.0.

Such a site will not be built wholesale, and it will not be created by the traditional fee-charging legal publishers. The creation of a free, comprehensive Family Law resource will have to be a grassroots effort, building up a site piecemeal as time and technology allow. It will take years. But there are enough practictioners, academics and students out there to get it going, and momentum is all that it needs.

My plan is to start website that will form the basis for this project. It need not be the same site that eventually realises the vision - it would be enough to convince an organisation with more funding to start its own. My intention is that this blog will ultimately form an editorial on that site, which explains its slightly snooty name. All I ask at this stage is that you support this project and, if you can, share your ideas and help push it forward.

We can’t prevent a divorce being an unpleasant experience, but I believe that if family lawyers can learn to adopt a collaborative approach to knowledge we can ensure that clients never have to deal with a badly trained, uninformed divorce lawyers. Personally, I think that’s the least that we owe them.