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Family Law

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Court of Protection Practice and Procedure Conference 2016

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21 SEP 2016

This lawyer's life: ping goes the practice

This lawyer's life: ping goes the practice
Ah. Email. The greatest invention for lawyers. Ping, and you can exchange positions statements at 2am. Ping, and you can get that 150-page expert's report on your phone to read while you're on the train eating the breakfast you didn't have time for at home. Multi-tasking; using your time effectively. It's what a busy practice is all about. Ping, and you can look an irate judge in the eye and smugly say, 'Your honour/My lord, the skeleton argument was sent. I emailed it myself at four o'clock this morning. I have a "sent" record here. So, there!'

The speed, the ability to be accessible 24/7 that email allows. It's fabulous ... Except it isn't.

If you're exchanging documents in the early hours of the morning, you're not using your time effectively. Night time is sleep time. It's when you're supposed to rest and recuperate from the day that has passed and rejuvenate for the one ahead. Sleep is essential for maintaining normal levels of cognitive skills such as speech, memory, innovative and flexible thinking: all vital assets for a lawyer. Sustained sleep deprivation also has a significant impact on emotional and physical health. To be an effective lawyer neither of these should be compromised because, if they are, this will invariably jeopardise the quality of your work.

In short, the wonderful invention that is email can be misused in our family practices. It allows each of us - counsel, solicitors, experts, social workers, guardians - to leave what needs to be done early until the last minute. Not because we are lazy or incompetent, but because we are all under tremendous pressure, snowed under with cases requiring our urgent attention, and there aren't enough hours in the day to deal with it all.

So, we rely on the quick ping. Just click on that magical word 'send' any time of the day or night, and our part of the job is done. The trouble is, for every 'send' there is a 'receive'. Someone has to receive that eleventh hour email and work on it.

I have yet to meet an advocate who likes the nightmare of drafting an order via the round robin email (usually an order already 'agreed' at court). It takes on average a week to get every comma correct to everyone's satisfaction.

How good for your eyes can reading a late 80-page report on your iPhone be? Show me a counsel who likes the 'email brief' and I will show you a masochist. Not 'brief' as in the short instructions, but the 1,500-page bundle sent via email.

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I recently tweeted:
It proved hugely popular with lawyers from both sides of the profession! When one counsel suggested it was 'biting the hand that feeds us', he was politely but firmly told there was a real problem and it needed to be aired.

Here's the complaint: after a full day in court, you return to chambers at 6 or 7pm to find tomorrow's case 'on email'. This means printing hundreds, even thousands, of pages from countless emails with numerous attachments, then putting the pages in order. This will take at least 2 hours, taking you to 8pm. You invariably have to draft a position statement/case summary/threshold/CMO or, sometimes, all four. Minimum of another 2 hours: you're at 10pm. At some point you have to go home (which takes at least another hour), eat something and have some semblance of 'family time'. All this before you can actually read the papers and properly prepare your case - by which time midnight has rolled around.

One counsel told me: 'Your evening becomes one of four impossible choices - sleep, childcare, personal relationship, or case prep. Sleep invariably goes first. Personal relationship next. Then it's either neglect your own child, or try and wing it the next morning for someone else's child.'

A former solicitor, now at the Bar, as been horrified by the frequency of late instructions: 'I cannot just inhale the contents of a huge bundle at midnight. I cannot prep at 3am and be on top of my game by 9am. We have to cultivate a culture of this being unacceptable. There should be a cut-off point, say 48 hours before the hearing, after which bundles are not accepted via email. 95% of email bundles are old papers from months ago which could easily be sent via DX. Only updating documents need to be via email.'

I've spoken to almost 100 counsel recently, and the grievance is the same: the time wasted printing and putting bundles together is time that should (and could) be spent on the case itself.

It's an important issue, too, because a pupil supervisor told me that he has seen talented young lawyers leave the Family Bar because they came in expecting to work on cases, but ended up spending their evenings and weekends printing and making up hefty bundles. With little to no time to prepare properly they lurched from one case to another unable to do their best. This sapped their confidence, and they wondered if the meagre financial reward was worth the stress. They decided it wasn't.

Social workers and children's guardians are equally overwhelmed. Several have told me that, in the past, they were allocated as many cases as they have now but somehow felt less bogged down. 'It's the paperwork that has increased tenfold,' said one. 'It takes you away from actual social work.'

'And the endless emails,' chimed in another. 'There's this assumption that any time of the day or night you are not only available, but have that particular case in mind on tap. It's self-generating extra work. Often the emails are people's first thoughts, not their considered ones, so it's constant chatter and not real discussion. It's exhausting.'

There is no easy solution to any of the above issues, but perhaps we should all think before we ping.

The Bar Council and the Inns of Court published its Wellbeing at the Bar report in May 2015 with a view to supporting wellbeing and mental health at the Bar. It has since set up a Wellbeing Working Group and is aiming improving barristers' wellbeing and resilience, chambers' management practices and understanding of wellbeing and mental health, as well as boosting the support available to those in crisis. 
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