‘Tis the season to be ranty

It’s getting towards the end of the year. For some, it’s been quite a long year.

The impact of family law matters on both parties and their legal practitioners shouldn’t be ignored. This year has been one of the hardest years that I have experienced since I commenced as an articled clerk in 2002. For those who may be unfamiliar with the term “articled clerk”, back when my hair didn’t have any grey in it and dinosaurs roamed the earth, after you finished your law degree at university you undertook articles of clerkship.

An articled clerk had a “master” solicitor whose job it was to teach their clerk the practical aspects of being a solicitor and to supervise them while they were learning how to master their craft.

I had the good fortune to have not one master but two. My “de facto” master taught me more in 12 months of working for him than I learned in 6 years of university. An eminently qualified and pragmatic man, my de facto master took the time to help me master my craft and, where necessary, would pull me up if I hadn’t done something correctly or if my attitude was less than desirable. My de facto master used to joke that I, in fact, had 3 masters:

1. the partner of the firm that I was articled to;

2. him as my “de facto” master;

3. my father, who is also a solicitor.

My de facto master used to joke that it was much easier for him to teach me things as I had been kicking around law practices since I was 4 years old. I would sit in the corner of my dad’s office and listen to him dictate on a Saturday morning before we did other mundane tasks such as the grocery shopping or mowing the not insubstantial sloping half acre block that my parents still call home today.

You may wonder about the title of this article, Tis the Season to be Ranty. It would be an understatement to say that there are some things that I am passionate about. Legal education is one of them. In particular, how we teach, supervise and develop younger practitioners in the jurisdiction that has its fair share of practitioners who:

1. don’t think outside of the box;

2. don’t try and resolve family breakdowns in a manner that is conducive to both parties and their children being able to be civil towards each other; and

3. don’t remember that parents have responsibilities to get along with each other for the benefit of their families and children.

Not so long ago, I had a matter where I was working with a senior practitioner in south west Queensland. Given the unique personalities of our clients, we decided that the best way for us to move the matter forward was to work in a cooperative manner.

We sometimes refer to this as “small c” collaboration. This differs from Collaborative Law, which has a particular form and structure. Collaborative Law requires the parties to enter into an agreement that in the event that negotiations break down and Court proceedings are commenced, both solicitors are restrained from continuing to act and cannot represent their clients in in any Court proceedings.

“Small c” collaborative work is just that, it means 2 or more practitioners working together to resolve a situation or dispute without proceeding to litigation.

We decided it was appropriate to try to be collaborative. However, at the first meeting, the other party raised with their solicitor that they thought that there might have been ulterior motives for the fact that both practitioners and our facilitator were being civil to each other and generally trying to get along with each other.

The other practitioner decided to introduce me to their client. Thinking that this would engender some spirit of cooperation. It also allowed the client to put a face to my name before being led into a boardroom and then being formally introduced.

When I met the other practitioner’s client, I went to shake his hand. He commented to me that he wasn’t sure whether he should be shaking my hand because I might be the one to “stab him in the back”. I’ve got a pretty thick skin after having done this job for quite a number of years. However, I was taken aback by this comment.

I mulled over the comments made by the other practitioner’s client for a couple of days. In the week prior to our conference, our legal practice director, Kara Best, had asked all of us to think about why we do what we do, and put together a statement as part of our practice goals. This was a personal statement that related to both our motivation for working in the difficult area and how this can affect our personal resilience.

I thought it might be helpful for the other practitioner to show their client the statement that I had prepared. This is what was, and remains, my “why I do what I do” statement:

Family law is something that I had been interested in as a result of being exposed to it through my father’s legal practice. My father is a sole practitioner – he is a generalist and practises in a number of areas. I helped him on a number of family law matters when I was at university. As a result of this, I found myself in a job that had a high level of family law casework.

Lots of my colleagues and friends from university asked me why I wanted to do family law and why I have stayed working in the area. The answer is pretty simple. I love a challenge. Practising in family law means that you need to know more than just family law. On a daily basis, I am:

1. trying to help people deal with emotions and their reactions to grief, loss, frustration and sometimes raw and uncontrolled anger;

2. trying to help people who feel vulnerable and at their wits end;

3. trying to help people who never thought that they would find themselves in this type of situation;

4. trying to help people work through the complexities of trying to parent children either by remote control or by putting their emotions to one side and looking at what is best for their children;

5. trying to help people finalise their financial relationships, and sometimes this means having to unravel complex corporate structures, superannuation funds, taxation issues, discretionary trust issues and other areas of law that I don’t regularly practise in;

6. trying to help people finalise their personal relationships with a former partner and create a different coparenting relationship that will work for the benefit of their children in the future.

So, on a daily basis, I am trying to help people. I don’t always know the answers to their questions and I readily admit that. To help them, I need to work with other professionals who are trained in different areas and can provide answers or solutions.

At the end of it, I get a lot of satisfaction knowing that I have tried to help someone as best I can. Is it always easy? No.

Does it take its toll? Of course it does – I’m human.

Are there days I want to run screaming from the room when opponents or other parties are being horrendous? Absolutely!

However, I want to try and use my skills, my knowledge, my professional network, my BWB colleagues, and my perfectionist personality to try and get my clients through what can be one of the most horrendous times for them in their life.

That’s why I do what I do.

As I say, sometimes it can be horrendous when people are hell bent on making life difficult. That isn’t just parties wanting to make life difficult for their former partner. It can also be practitioners who take an approach that is overly combative, unnecessary and quite frankly unhelpful.

One of the things that I learnt working around my father and my “de facto” master was the art of being able to pick up a phone and talk to the other solicitor. It was something that both my “de facto” master and my father would do, particularly when they did not know their opponent and wanted to professionally introduce themselves to them.

Unfortunately, picking up the phone and talking to people appears to be a dying art. For reasons that pass understanding, a lot of practitioners will simply prefer to pick up their Dictaphones (or keyboards) and send a letter.

Sometimes those letters can come across as threatening, intimidating and a source of stress for clients. I am obliged to provide a copy of all correspondence that I receive to my clients. I become extremely concerned about people’s motives when correspondence appears to be for the simple purpose of upsetting people.

I think that as practitioners, we do not give enough thought into what we say in our correspondence and what affect that might have on the other party.

It appears to me that as practitioners, we have forgotten to consider the impact of how we practise law. It is not our job to be mere mouthpieces for our clients.

As a solicitor, I am required to advise my clients not only about the law but how is the best way to go about resolving a matter and what the effect of proposals or correspondence might be.

On the occasion when I have felt the need to be a little “ranty” and taken up issues with other practitioners, I have been told that “I don’t work for you so I don’t need to listen to you lecture me”.

It seems to be that the legal profession has lost the ability to teach and influence our younger practitioners who, these days, do an extra 6 months of practical legal training at the end of their university studies. In essence, this is a course run by a tertiary institution where they teach practical legal skills to would be practitioners. Call me old school, but I think there is merit in watching and learning from senior practitioners who have experience and can not only teach practical skills but humility.

My resolution for the coming year is to practise what I preach.

I am going to pick up the phone more.

I am going to consider the impact of what I do and say as a practitioner on not only my client but on the other party when trying to resolve difficult circumstances.

I am going to try and resolve things in a collaborative way working with the other practitioner trying to limit the damage that can be done by the broken system that we practise in which is crying out for a more cooperative and personalised approach to be taken.

Here endeth the rant.