Alternative Universe: transacting with litigants in person

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Alan Larkin writes for Solicitors Journal (April 2019 issue).

Whilst there is a growing focus on the promises or threats of technology on the legal profession many lawyers at the family law coalface may feel more immediately impacted by the growth of litigants in person (LIPs). A colleague received an email from a LIP last week. The expletives were par for the course but the incessant hostility becomes hard to bear. The comments increasingly directed at the lawyer rather than the client or the issues in the case. This is not new. There can’t be a family lawyer practising who has not received unwelcome attention from a LIP. The frequency with which we find ourselves dealing with LIPs has increased post-LASPO.

Although it is only an observation without any evidential backing I would suggest that the hostility dial seems to have been turned up since that referendum in 2016. Lawyers are experts after all. Allied to which, the erosion of civility on social media has infected communications generally. Don’t waste time telling a LIP that we don’t make these processes and rules. All they know is that the rules conspiring to bind and bamboozle them are being articulated by a lawyer. Worse still, a lawyer acting for their loathed ex. We become the proximate and apparently legitimate target of their enmity.

The dynamic introduced by a LIP trying to navigate the rules of litigation is a challenge to the way we conduct business. Lawyers are, let’s put it in writing as an act of kindness to ourselves, only human. There is only so much personal ire we can absorb in our representative capacity for the ex-spouse and the failings of the justice system. Professional detachment can be severely tested. The capacity to snap may be only another ‘Go **** yourself’ email away. And what if it was the third such unpleasant invitation received that day? Or the tenth that week? Think the SRA will take that into account if the urge to reciprocate becomes overwhelming? No, of course not.

The direct insults, no matter how course the language, are the easier ones to file and ignore. What can be more troubling are the efforts of some LIPs to undermine the case of their spouse by attacking their professional representative. By seeking to hold us explicitly responsible for the life choices they alone have made. To wit: ‘Unless you do ‘x’ I will kill myself’; ‘How do you sleep at night knowing what you are doing to me?’; ‘You can’t possibly have children of your own’, and so on.

Despite the provocations, we must remain professional. Reacting in the heat of the moment has damaging consequences for ourselves, our colleagues, and our firms. Most of all, the price is likely to be paid by our client. An ill-judged lapse of professionalism would simply affirm the world view of the LIP that their ex, their lawyer – the whole damn system – is out to get them.

And this increase in LIPs is the inevitable result of the removal of Legal Aid. The growth of LIPs is undeniable although I wouldn’t bet on hearing a justice minister state otherwise in our alternative facts universe. The term ‘affordable legal services’, might bring a hollow laugh from a client being quoted an hourly rate of £240 an hour plus VAT. A reality check is to ask if we could afford to employ ourselves at our quoted rates. This is the environment we work in: the very LIP who might be making our lives at work a misery could well have been our grateful client in an alternative universe of affordable legal services.

In a blog site aimed at helping LIPs I still receive a significant amount of comments and questions from those who genuinely struggle with the complexities of family law processes. They are confused. They are desperate. And without concrete answers, they are often vulnerable. Even the most toxic of communications from a LIP may come from a place of pain, fear and loss. Handling this tension, deflecting or reframing the hostility, is usually in the skill-sets of most family lawyers. The question now is whether the reality of transacting with LIPs should be addressed in the Solicitors Qualifying Examination and firms’ business planning.

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