I’m pleased to see the 'Language Matters initiative' here in the UK, supported by the President of the Family Division, Sir Andrew McFarlane. The aim is to combat the use of adversarial language in divorce, to help couples to resolve things more amicably. Moving away from the “Kramer vs Kramer’ type of language, using first names instead of ‘Applicant’ and ‘Respondent’, not referring to the ‘other side’, avoiding words like ‘battle’ are examples.
But what surprises me is how this is hailed as being ‘insightful’, ‘revolutionary’ and ‘forward thinking’, when in fact it is blindingly obvious to the average non-legal person. (Lawyers, if you don’t believe me, just go out on to the street and ask the first person you see what they think).
Is it because that’s just how lawyers were taught to communicate, and they just never questioned it? (Surely not - lawyers are known for their high IQ’s).
Is it because that is what all the other lawyers do, and they don’t want to appear ‘weak’ to their clients, by using more appropriate language, when the other lawyer is not? (Hmm. I’m not convinced by this - a poll of my clients indicates that they would prefer the opposite, regardless of how the other solicitor is communicating).
Is it because it sounds ‘clever’ to write in ways which sound ‘legal’ and scary? (Possibly - but lawyers - surely someone else’s divorce shouldn’t be about patting yourselves on the back for sounding clever. Write a novel instead.).
Or is it because it suits most lawyers to increase the conflict, because it ramps up the costs to the divorcing couple?
We are always being told that family lawyers went into their jobs to help people. And some certainly did, and they are the ones that behave professionally in ways which are congruent with those values.
But the vast majority of UK family lawyers haven'y bothered to train in (or even know about) out of court methods of dispute resolution. And they are not even members of Resolution, an organisation which provides further training to family lawyers.
How many of the lawyers who don’t belong to professional bodies, who do their own thing, who make court applications that they know can’t possibly succeed, who don’t bother to learn about domestic abuse, coercive control and narcissism - how many of them are going to have even heard of the Language Matters initiative? How many of them are going to be guided by it, when it will reduce their earnings by reducing conflict? Not many, I’ll wager.
"The general public do not know what they are getting into when they instruct a family lawyer."
The general public do not know what they are getting into when they instruct a family lawyer. They do not know that any conversation they have with their lawyer will be rounded up to the next 6 minutes (with no discernible justification - can’t you just bill for the actual minutes you spend instead?).
If they are in a high conflict divorce with a narcissist, they don’t know that it’s most likely that the person they hired to protect them will be completely unequipped to deal with their spouse, through a mind boggling lack of self-education. They don’t know that having the ‘protection’ of their own lawyer actually means that their spouse’s lawyer is actually enabled to hurl unfounded allegations at them, whereas being a litigant in person reduces how abusive the other lawyer could be towards them.
They don’t know that lawyers don’t have to get their clients to behave, but can become weapons of their abuse instead, and that there is no regulation that stops this. They don’t know that lawyers can write pretty much whatever their client asks them to write, on the grounds that they are 'following their client's instructions' and that the truth is irrelevant.
They don’t know that lawyers can advise their clients incorrectly, and make court applications on their behalf that are bound to fail - and then simply blame it on the judge, when it all goes wrong.
They don’t know that their lawyer can easily run up their costs by responding to every irrelevant letter that their ex has sent them through their solicitor, when in fact they don’t need to, preying on their client's fear of a judge believing the allegations.
They don’t know that the mass exodus of lawyers from family law might be related to all of this. They don’t know that the very lawyers that went into the job with principles and values are the ones most likely to throw in the towel, to do something more meaningful instead.
So yes, the Language Matters initiative is important. But more important would be to properly regulate the emotional and financial abuse by proxy that family lawyers engage in when writing letters to ‘the other side’. That’s what I’d like to see the President of the Family Division tackle next.
And, on the subject of language, at the moment, in the context of divorce, it is actually misleading to call most solicitors ‘family’ lawyers. It’s far too cuddly and empathic sounding, and doesn’t nod to the fact that the client’s family is not the priority - reaching their firm’s targets is.
‘Divorce lawyer’ is way more honest - and yes, I’m calling it out.
Let’s hope this changes. And quickly.