My blog is meant to inform but its primary purpose is not to be informative. It is about the law but it is not solely about the law but also about those places the law does not go. The law is the platform from which I dive. My blog is about my opinions but is not primarily about my opinions since I often temper these to the subject matter on hand, not to mention the imagined audience. Quite often when I open a subject which is related to the law for discussion, I find myself in a place I never meant to be, or to go, as if the subject takes on a life of its own. I write articles based on what I do for a living, and I am a family lawyer, but of course that is not all I am. I find that when I engage with a subject, and use writing to express my thoughts, that quite often the journey is more interesting than the end and that what I thought I was writing about is not what I wrote about at all. This seems to me to be a metaphor for life. I write, therefore, to throw some light into the dark, to increase my understanding and by extension hopefully, other people’s understanding of what often seems incomprehensible, to enliven the dull so my spirit does not sag and to throw some humour at what is often deeply sad so that I can, or maybe, dare I say hopefully, “we”, can gain perspective. I doubt I succeed but the effort is honest.
Thursday, April 28, 2016
Sabotaged by feelings – Family Law?
Despite being recognized as a separate area of practice, it seems to me that family law is often taken less seriously than other areas of law and is often taught as a side line interest particularly at a professional level. One has to wonder is this because it is seen as a woman’s area or because it seems hard to make any money at it? The lack of emphasis placed on the study of family law contributes erroneously to the view of many practitioners that it is an area of practice in which they can dabble (i.e., take the odd case here and there), and indeed, an area about which they do not have to be terribly well informed (up to date) in order to work in it effectively. This may be because they feel that no real law is involved or that it is a matter of common sense mainly. Others perceive it as just like all other litigation. Solicitors and Barristers who take up the odd family law case will frequently say how much they dislike it, how the cases take on a life of their own and become like a mini rain forest (paper heavy) and how the clients are never happy. Frequently, they will also recount how they worked extremely hard for an individual and got a good result only to find themselves bad mouthed by the client. A lot of the bigger practices won’t do family law because they don’t want “unhappy clients”.The first thing that can’t be said often enough is that family law is not like “any other litigation”. Family law clients are generally traumatised. They are experiencing an emotional maelstrom, probably completely unlike anything they have experienced before. So are their children and their relatives. Equally, Family law is also not simply a matter of common sense. I am, in the school of Rumpole, always wary of the “common sense” lawyer. Naturally, some common sense is required but an application of common sense applied to the open wound that is the traumatised family law client, seldom works effectively. And while there is not a great deal of law there remains the fact that family law frequently involves land and properties of one sort or another often held in various complicated titles, companies, investments with other parties, partnerships, deceased family members and various complications being frequently the stuff or ordinary life made more complicated by the fact of separation or divorce and to which the family lawyer must apply his or herself. The best thing the family lawyer can do to start with is examine the support your client is getting in detail. Frequently, friends and relatives are acting out their own unresolved conflicts while seemingly “helping” the client. Look out for that. Look out for the client who is taking advice from everyone everywhere and comes to you with all the various slants so that from day to day you don’t know who you have in front of you. Look out for the client who has a ghost lawyer second guessing everything you say and do. This is generally a friend of both parties who cannot be seen to officially act but is actually on one side as opposed to the other or it can be a second cousin twice removed or the wife of a friend of your husband’s or even the conveyancing or office lawyer. Spotting this type of input from the beginning can save a lot of time and angst on both sides. Clients will frequently resist counselling. It is important to remember that everyone has family baggage, including you, the family law practitioner. This, frequently unexamined, baggage comes out to play in every family law case, yours, the clients, the client’s relatives, friends etc. The first step to managing all that is recognising it and the next step is taking a long hard and frequently uncomfortable look at all of that. Only then will you be able to make a stab at managing it. It is my experience that many practitioners are unable and unwilling to examine their own baggage and so they have no idea of what might trigger them when it comes to dealing with family law clients. We try and corral the clients, confine them to legal issues and so forth and the thing that drives so many of us nuts all the time is how often they escape their confines. When we studied family law, if we did, at a professional level, i.e., as apprentices, we were admonished to remember that we were lawyers and not counsellors. I think that this advice, probably well intentioned, sounds the wrong note for would be family law practitioners. It is not possible to deal efficiently with family law if you do not recognize the emotional and social fall out of marriage breakdown on a personal level and for families generally and if you have not explored them in your reflections, reading and study. Most of us will have experienced family conflict growing up and what in our particular families tended to trigger it. That can result in our having a certain attitudes and reactions when the right buttons are pressed. The thing about family law is one or other client will definitely press those buttons. When a client comes in the door they appear with all their baggage and not just a bunch of legal issues and questions. Most of the strain of trying to deal with family law clients arises from the effort to keep them within the confines of law and I would suggest that much of that strain is unnecessary and of our own making as professionals. I believe it stems from lack of self awareness, unrealistic expectations of people in trouble, fear of emotions relating probably to the lack of self awareness and a general lack of openness to the exploration of new ways of doing things and new approaches.Family law is not a difficult area of practice because the law is massively complicated. Over the years there have been tricky areas of family law, for example, at one time the recognition of foreign divorces was very complicated, nullity can also be quite intricate and adoption as are aspects of child care and domestic violence. The pieces of legislation and case law governing these areas are not particularly difficult to read and digest but yet, I have come across lawyers who have a very hard time coming to grips with some of these matters and I have wondered why that is? I suspect because more basically, than any other area of law, family law and emotions are intertwined. Raw emotions and base feelings right down where people live, deep in their psyche. Pauline Tesler calls this the Primordial Soup which is as good a description as I have come across. Very few lawyers have the kind of skills required to manage clients at this level or even to recognize where the client is at and refer the client to someone else who could manage or assist them. It is client management that makes family law one of the most difficult areas of practice and it is the level of client management unique to family law and the skill set required to work in this area that make family law a specialization.When I began working exclusively in family law, I designed an intake form for my new clients. Its purpose was to provide me with the information I required to draft proceedings for litigation which Alan Shatter liked his solicitors to do for themselves, rather than ask counsel to draft, as is generally the case. I believe that there is huge merit in this approach as drafting proceedings, while not necessary economically productive from a solicitor’s point of view, gives you a command of the information contained in your client’s case and helps you to determine a course of action. My intake form was to ensure that the client would be focussed on the provision of information rather than rambling all over the place. The client, I thought, would have to concentrate on answering my many “relevant” questions and would, therefore, not tell me things I did not need to know. As an unadmitted aside, I also thought it would serve, because of the effort for the client to provide the necessary information, to keep emotions in check. So much for thought! Truth to tell, the intake form was all about me. You would have to wonder why I was so anxious to keep all those emotions at bay? The emotions that I found hardest to manage were anger and despair. Anger perhaps resonated with me in unexamined ways and despair was the most alien to my own emotional personality so I could not get a handle on it. I think now, it was fear, fear that the consultation would get out of control or that I would not be able to control it, as well as fear of the emotions themselves, that I might be overwhelmed. I clung to that dictum that we were lawyers and not counsellors with all my might and the stress of my day to day practice was very high. First of all there was the stress of resisting the client’s need to talk, then there was the stress of trying to keep the emotions in check, theirs and mine, the stress of dealing with colleagues who were just as stressed as I was, the stress of litigation and the stress of trying to manage the court system and the client. A lot of stress! And I felt it, I found it hard to cope, smoked like a trooper and got sick. When I recovered, I took control over my health in a holistic manner and from there I started to examine slowly but surely my working methods and those of my profession.Tying to confine clients to legal issues is not a realistic approach to family law, particularly, when they first appear in your office. Is our obligation, our duty of care, to our clients in this regard met with by simply having a list of counsellors to whom we refer them? I don’t think so. It is my experience that most of us inherit that list and we do not personally know any of the people on it. Equally we are ignorant of different types of psychological practices and what they might offer when we make referrals and finally, we have mostly never availed of the assistance of counsellors or psychologists ourselves and accordingly, have no idea what we are asking of the client when we advise them to attend for counselling or a psychologist. An equally good question is, can we confine our clients to the law and legal matters, once we ensure that they have or will attend a counsellor? I don’t think our obligation as lawyers or solicitors is met by having a list of counsellors per se. First of all we need to have met with these people and assessed their value to us as practitioners. How are we to do that if we have no clear idea of what the practice of family law is, not to mention the psychologist and counsellor’s practices, what we are about as family law practitioners and what they are about as psychologists and counsellors and lastly, our client’s holistic needs? I often hear lawyers bemoaning the fact that clients frequently consult with them on areas that do not relate to law or come in unprepared and so forth but we think it is perfectly in order for us to know practically nothing about the practice and different practices of mental health professionals and counsellors. Secondly, the fact that our client has a counsellor does not mean that we can happily confine them to legal issues and let the counsellor handle the emotions. We will still have emotions coming into the room with us and we will still have to learn to manage them. And once we have the client’s emotions to deal with, we will also have our own. Counselling will, or should assist the client to manage their emotions but it does not act as a plug. Finally, we cannot make our clients attend with a counsellor. Irish people are frequently very reluctant to attend counsellors as they often see counselling as some form of psychiatric assistance. Of course, if the practitioner has no idea what the counsellor can add to the sum of things, then he or she will have a hard time selling counselling. If the practitioner has never undertaken any counselling himself or herself he or she may well have unexamined attitudes to counselling per se which will communicate subliminally to the client. If the practitioner has little or no respect for counselling as a pursuit this will undoubtedly communicate. I find very few practitioners have any knowledge of counselling, what it involves and how it might or might not assist their practice. The interesting thing I have discovered in recent years is that counsellors (I use the term broadly to embrace mental health practitioners, counsellors, psychologists etc.,) frequently have equally unexamined attitudes to family law practitioners and that may well be the subject of a whole other article. And both sides from their lofty positions of complete ignorance of the other does are often entirely prejudiced against the other. I suspect the idea that they have unexamined prejudices will meet with higher resistance amongst mental health practitioners than lawyers but that is my experience.I have long felt that the teaching of family law at a professional i.e., practice level, has to take a more holistic approach in the interests of both the practitioners and the clients. Not only do we as lawyers have to understand and appreciate what counsellors can add to our practices we also have to learn from the counsellors how we can assist our clients with emotional management and how we can meet our own mental health needs as family law practitioners. As a young practitioner, one of the most difficult things for me was shutting down the stuff in my head at the end of the day, client stories, client anxieties and my own. The first thing is to recognize that this is a fact for many young practitioners and not something that they should keep to themselves, feeling a little ashamed of not being able to manage and overcome better. In my early days not only did I not discuss these feelings of being overwhelmed with other practitioners, I would have actively denied them had I been asked. I would like to think we have come some way since then. Counsellors and the counselling world has long recognized the need for management of second hand trauma and they have evolved useful skills and techniques which would be of great assistance to young practitioners. Their knowledge and skills should in my view be incorporated into the teaching at a professional level in the practice of family law but that involves stepping away from the idea that we are not counsellors per se and accepting that while we are not counsellors there is a certain amount of emotional health and management implicit in our practice and that we should not only learn some techniques for the benefit of our clients but for our benefit also. As a profession we need to place a premium on our own mental health as well as that of our clients for both our own sakes and that of our clients. Of course, family lawyers who remain in this area of practice with or without the techniques of the counselling world will grow thicker skins as time goes on in any event. How much natural empathy and our own inner selves are lost by doing this as opposed to learning skills in how to manage?It isn’t just a case of managing emotions so they don’t interfere with the smooth running of our practice. Emotions have a place in family law. Burying them is dangerous both for the lawyer and the client. Managing emotions means acknowledging their place as well as controlling them but not burying them. In my personal practice, it came as quite a surprise that once I stopped resisting the client’s emotions, I was able to manage my own reactions as well as the client’s with a lot more ease and aplomb. I don’t exactly invite the clients to share their emotions with me but when they surface, as they do, I don’t block them either. This step has made my practice much easier, that and jettisoning the intake form. Now, in the initial consultation, I let the client lead for the first half or more depending on the situation and only when the client feels heard do I raise my questions. I believe that if you don’t listen to the client or more accurately try and hear their story only through your prism, they will resent you without even knowing it. Into that unhealthy solicitor/client climate, can come unreasoning anger, client badmouthing and client anger transference. Thinking on this has led me to think about how we teach family law to young lawyers and how much better we might deliver on that.Some thoughts on this are: Family law is an area of law but it is emotional. If that turns you off, then perhaps the practice of family law is not for you.The outcomes of a family law situation are not going to make anyone “happy”. If you want “happy clients” then perhaps the practice of family law is not for you.Family law stories will touch you, the practitioner and your own experiences and emotions. These have the potential to trigger you to react in ways you had not foreseen. Self- awareness and self- reflection will help you to be a better practitioner and may have benefits in your own personal life. If you do not wish to engage in any form of self-reflection then perhaps family law is not for you.The practice of family law requires you to be more than just a lawyer. It requires openness, tolerance and understanding as well as knowledge of the law. If these are not qualities you think you possess or you do not value them as such, then perhaps you should consider practising in another area.Other areas of law may require the lawyer to be primarily a gladiator but there are only a few occasions or areas in family law where gladiatorial skills are the primary requirement of a talented or even competent practitioner. If you have the ability to recognize those times when you see them then you should not worry. Consider another area if conflict is your meat and drink or your first port of call in all situations. In family law there is already enough conflict, your job will mainly be to seek resolution not promote dissension.Family law is a speciality. It should not be lumped in with litigation. It is not just litigation as is often said. Family law at court level is conducted differently to civil litigation both in its procedures, the manner in which hearings are conducted and in client management. Recognizing the specialization status of family law will go a long way towards an openness to changing the way we teach family law based on the realities of practice and the needs of family law clients. Those of us who are family law practitioners are all too familiar with “litigation orientated” sometime family lawyers who employ the methods of running down actions in this area i.e., aggressive and non-engaging until the steps of the court approach. This is a disastrous approach to family law and a devastating experience for all concerned.We should involve psychologists, counsellors and mediators in the training of young family lawyers both for our benefit and the benefit of the clients.Students should be mentored in the early years of their practice of family law and perhaps in other areas too. Mentoring would assist greatly with the management of the young practitioners’ emotions and would offer practical guidance on how to manage clients. It would also promote self- awareness. This, in turn, would stimulate professional growth.In the course of this article, I have discussed my view that clients should not be asked to compartmentalise their emotions and that we should not attempt to do that for them. There are many reasons for this but probably the most important one is that family law clients need to heal and part of that involves processing their emotions. Clients who cannot process their emotions cannot move on and clients who cannot move on become clients for far too long. Clients who stay way too long seldom want to pay for the true cost of that time and effort. Most of them do not or cannot remember the amount of time you spent and the amount of generally unproductive correspondence you entered into on their behalf. When reminded they still don’t want to value that. It is my experience that forcing clients into boxes will result in the emotions surfacing at some other time, often a completely inappropriate moment e.g., when you are endeavouring to resolve or settle their case. When the emotions surface, a client will be flooded and when flooded a client cannot make rational decisions. At the best of times, clients have a very difficult time settling cases and this is most especially so if they have not dealt with some of the emotional fall out of the marriage breakup. Factoring this into how you manage a settlement meeting, scheduling and so forth, can often make an enormous difference into client preparedness for settlement.All family law practitioners have the experience of the clients directing anger at them the practitioner. Most of us recognize that this is just transference but ensuring that new practitioners are ready for this is very important. Knowing about anger transference is helpful but it does not make it any easier to receive the anger or to manage it. Recognizing it and learning how to manage it are essential skills for the family lawyer. Most of us have picked up those skills in the school of hard knocks, experience , however, counsellors and psychologists deal with anger transference all the time and are well used to managing it without alienating the client or leaving themselves open. We need to master those skills for our practise.As professionals we need to place a value on our own mental wellbeing within our profession. Our professional life may be about making money but, as we know, it is also about feeling that our life has a purpose, meaning and that what we do is worthwhile. Wanting to be a master of our profession, being open to new knowledge and skills, as well as constantly striving to be better at what we do is not just the stuff of idealistic youth, it will also ensure our own wellbeing and that of our clients. The converse is unmanageable stress, cynical unhappiness and possible illness. In that context learning to manage our second hand trauma is very important. Sometimes, the stories we hear traumatise us. What do we do to manage that in our own lives? I would suggest that the first step is that our profession recognizes the reality of second hand trauma and our exposure as a profession to it. We might then identify the high risk areas within our profession. Such recognition would lead logically to an exploration of techniques or ways and means of managing as studies of trauma and its effects. Few in our profession recognize our exposure as a profession to trauma and what effects that has upon us. Not having a name for something you are experiencing may lead you to trivialize the experience or deny it completely to the detriment of your health.