Instructing and Using a
Solicitor
The Custody Minefield Factsheets –
Smartphone Series (optimised for smartphone users). Copyright Michael Robinson
2011. Crown Copyright
material is reproduced with the permission of the Controller of HMSO and the Queen's printer for Scotland
Contents
How do I find a ‘good’ solicitor?
How do I find a solicitor who
practices collaborative law?
What is the difference between collaborative law
and mediation?
Should I check if the solicitor has specific expertise?
What should I ask the solicitor at the first meeting?
What should I do in preparation for meeting with a
solicitor?
Was the solicitor right for me?
Will I need a barrister, and what do they do?
When using a solicitor, how can I keep my costs
down?
Other tips, once you have chosen your solicitor
Should I use a solicitor?
<Back to
Top>
This is a hard question to answer, since the answer depends on the complexity
of your case, your own abilities, and your ability to speak in court while
under stress. More and more people are choosing to represent themselves in
court, and The Custody Minefield is one of the UK’s leading web sites providing
information and resources which enables them to do so. That said, we do believe that some people would do better with a
solicitor. The main reasons to consider representing yourself include:
1] You
are likely to know the details of your case better than your solicitor;
2] Where
barrister is instructed to act for you in court (speak on your behalf), it is
not unknown for them to change the day before the final hearing (as another
case has over-run), and for your ‘legal expert’ to have to catch up with the
full case history by scanning through the case file at the last moment. While
the assurance is given that they are quite capable of doing this, my own
preference would be certainty that the person speaking for me was well
prepared. Discuss this risk with your solicitor if you use one;
3] Much
of the work done by solicitors (in family cases) is not overly complex, such as
sending letters, filling in forms, and helping their client’s write statements.
The costs associated with this work can soon mount up though;
4] Many
people cannot afford a solicitor. The costs of family law cases can stretch to many thousands of pounds, and those who can afford the
fees often end up crippled with debt in the years that follow. Expect a simple
case to cost a few thousand. Expect a complex case to cost a five figure sum in
legal fees;
5] If
you represent yourself (unless costs are awarded against you, which remains a
relatively rare occurrence but is possible), the cost is likely only to be the
cost of making the application (£200 for most fees),
and the cost of photocopying and postage (unless expert witnesses are needed,
such as psychologists for psychological assessments;
6] More
information is now available to assist people who represent themselves than
ever before – and most of it via our family
law menu or from The Custody
Minefield website (e.g. forms, case law, documents for court, process
guides etc.);
8] The
courts are more used to people representing themselves. Only a few years ago,
it was quite uncommon;
9] There
are charities which can assist you (one to one) such as Families Need Fathers (who help mums
and grandparents too) who have forums where you can seek information and
support, a helpline and local branch meetings;
10] You
can get a lay advisor to assist you. Some lay advisors offer their help for
free, while others charge a fee which may be a fraction of what a solicitor
would charge. That said, unless in exceptional circumstances, a lay advisor
cannot speak for you in court (although they can sit with you, and quietly advise
you), or cross-examine witnesses, or carry out other duties which a solicitor
would, such as corresponding on your behalf, writing to the court etc. Lay
advisors are more commonly called McKenzie Friends in family law. If you decide
to use a McKenzie Friend, again, choosing one on recommendation is best, and
make sure they clearly set out their fees, explain what they can and may not do
to assist you, and set out their level of experience. Ask for testimonials from
previous clients!
The main reasons to consider using a
solicitor are:
1] They
(or a barrister) will speak on your behalf in court, and present your evidence
for you;
2] They
can cross-examine (question) witnesses at a contested or final hearing. When
representing yourself, you must do the cross-examination, and it is no easy
thing to question your ex-partner in court. A solicitor or barrister can be
more forceful in their questions, without an allegation coming back that the
witness is being bullied (by you! – which risks the implication that this is
how you used to behave during the relationship);
3] They
can help you write your statement, advising you remove any emotional or
unnecessary wording (or doing this for you). A lay advisor can also advise on
what to include or omit in a statement;
4] At
a time when you’re likely to be experiencing some considerable stress, they can
take care of much of the case for you, prompting you when required;
5] If
you have any form of learning disability, suffer from dyslexia, dyspraxia, or
suffer from stress, nerves or anxiety, then I will go as far as to say that you
should always use a solicitor if you can afford one, as without that level of
support, the outcome of your case may be affected. While the courts should make
proper allowances for communication disabilities, I know of too many cases
where the person who has the disability experienced significant disadvantage.
6] While
much of the paperwork is straightforward, there is no denying that the
usefulness of a solicitor or barrister comes in their knowing what to say,
delivering it skilfully, and also on having an objective view on what matters
to leave out!
7] An
unskilled litigant-in-person, who lacks some experienced assistance, can
overload the court with irrelevances. I have been asked to look at 200 page
statements, when 5 pages would suffice. Similarly, statements (without a
solicitor or advisor’s input) can be overly emotional, confrontational or
sometimes downright confusing to read.
As a general rule of thumb, the more complex a case is, and the more
difficult you find public speaking, the more you should consider using a
solicitor. If you have any form of learning disability, suffer from dyslexia,
dyspraxia, or suffer from stress, nerves or anxiety, then I will go as far as
to say that you should use a solicitor if you can afford one, as without that
level of support, the outcome of your case may be affected. While the courts
should make proper allowances for communication disabilities, I know of too
many cases where a person with a communication disability has faced a
significant disadvantage when appearing alone (or handling the case management
side, paperwork etc).
What
does a solicitor do? <Back to Top>
A
solicitor is there to represent your wishes, explain to the Court
what you want to see happen, give your history of events, and ask the Court to
consider making a decision in your favour. They help you by filling in the
right paperwork, putting together your statement for the Court, and then
managing your case while it goes through the legal process.
Family
Law solicitors should attempt to help you resolve matters amicably, and will
normally attempt to do this via correspondence with your ex-partner or more
likely his or her solicitor, if one has been employed.
Solicitors
only know what you tell them and take instruction from you about what you want
to do.
How do I find a ‘good’ solicitor?
<Back to
Top>
The
question often asked, and the main task to find a ‘good’ solicitor. Like any
other person you employ to give a service, common-sense suggests you ask other
people if they can recommend one. If you have a friend or family member who can
recommend a solicitor, ask them why they do!
Questions
to ask include:
1] Did
they listen to you?
2] Did
they say what you wanted them to in court (did they follow your instructions)?
3] Were
they clear in how much they were going to charge you?
4] Did
they keep you updated as to how much you owed them?
5] Did
they give you estimates of how much their costs would be (e.g. for attending
court, what their total costs were likely to be, etc)?
6] Do
you feel they gave you good advice?
7] Did
they recommend you tried mediation before heading to court?
8] Did
they tried to mediate an agreement outside of the
court room with the other party and their solicitor?
9] Did they reply
to you promptly, or did you have to chase them?
A
good solicitor isn’t necessarily one who won a case, or agreed with everything
their client wanted. The ultimate outcome of court proceedings comes down to
many factors, including the strength of a case (on both sides), the
recommendation of any experts involved or welfare officers, and most crucially,
the opinion of the judge (who makes the final decision). A solicitor can be
good, and still have lose a case, but achieve a better
settlement for their client than might otherwise have been expected.
For
the solicitor, there is a balance struck between managing the client’s case and
following their instruction. Some solicitors may lean too heavily in either
direction, either relying almost entirely on the client telling them what to do
(‘Ah, but Mr Smith, you didn’t ask me to do or say that’), or too far the other
way in not listening to what the client wants and not following their
instructions. A good solicitor (in our opinion), will listen to their client, advise them of courses of action which they might
take, and set out the potential the risks associated with each course of
action. Then, they will ask their client to decide which course of action to
take. It is up to the client whether or not to take their advice.
It
is important to remember that a solicitor has the benefit of not being
emotionally involved in a case, allowing them to be more objective. Similarly,
they will have experience of knowing what course of action is more likely to
succeed. That said, no solicitor can guarantee what the court will decide.
A
good Family Law solicitor should be looking
to find areas of agreement and compromise between you and your ex-partner. A positive sign is your solicitor advising
you to consider mediation as an alternative to court proceedings. This suggests
that the solicitor is more concerned over finding an amicable settlement than
the profit potential from representing you. Any legal aid solicitor should, as
a matter of routine, recommend mediation. It is still surprising how many do
not (in 2007, according to the Legal Services Commission, a third failed to do
so despite it being a pre-requisite of receiving legal aid funding). New court
rules brought in in April 2011 now require all parties to attempt mediation
before applying to court. There are however some exceptions to this, and please
read our guide on the new
mediation process which provides detailed information.
If
you do not know anyone who has used a family law solicitor, check to see if a
solicitor is a member of Resolution
First for Family Law, an association for solicitors who follow a code of
practice aimed at constructive, non-confrontational dispute resolution. You
might also want to consider using a solicitor who engages in ‘collaborative
law’.
What
is collaborative law? <Back to Top>
Collaborative
law is a relatively new process, where both parties and their solicitors meet
to explore whether agreement can be reached outside of court. Parties first
meet separately with their solicitors, and then the four of you (the two
parties and their solicitors) meet together.
Collaborative
law requires both parties and their solicitors to commit to reaching an
agreement. At the start of the first meeting, all should sign a document to
that effect. Collaborative law, in practice, as with any form of negotiated or
mediated agreement, requires all parties to be willing to, and capable of
compromise.
How
do I find a solicitor who practices ‘collaborative law’?
<Back to
Top>
Resolution First for Family Law provides a database of solicitors who practice
collaborative law. Again, it is best if you can find someone you trust who can
recommend one.
What
is the difference between collaborative law and mediation? <Back to Top>
With
normal mediation, there is an independent mediator whose role is to facilitate
the two parties reaching agreement, but who should not be taking either party’s
side. The mediator is not there to advise either party as to their legal rights
or offer legal advice.
Collaborative
law is different to standard mediation, in that both parties have their own
legal representatives assisting in the agreement process, but also looking out
for their individual client’s interests, and with no independent third party
present. The positives are that you have your own advisor at the meetings, who
will be looking out for your legal rights, as well as (hopefully) a fair
settlement. The negatives are that there will be two sets of fees to pay (for
the two solicitors), which is likely to be more expensive than the cost of a
single mediator. It is fair to say that many cases are settled outside of the
court room, assisted by solicitors.
Should
I check if the solicitor has specific expertise? <Back to Top>
Yes,
depending on your circumstances. If there are other issues that impact on your
situation, such as mental health problems or abuse allegations, ask
if the solicitor has specific
experience in handling these types of cases. So often, due to the rapid
progress of events, people choose the first solicitor they come across.
If
your case involves an international relocation, we strongly recommend you only
seek a law firm with expertise in this area. The charity Reunite will be able to recommend one.
What should I ask the solicitor at the first meeting? <Back to Top>
Ask the solicitor if they charge for an initial,
half hour consultation. If they do, use this half hour to ‘interview’ them. You
choice of solicitor is important.
Before contacting a solicitor, there is nothing to stop you
arranging the mediation yourself. Again, our mediation
guide provides you with the information you need (it is not a complex
process!). You may wish to seek legal advice before you make an agreement with
your ex-partner though, and that is your decision. If you want legal advice
before mediation or if the mediation was unsuccessful, we recommend asking the
following questions at your first meeting with the solicitor, if you decide to
take the matter to court, and decide representing yourself is not right for
you:
· How long does the solicitor think the case will take?
· What will the likely costs be?
· Do you qualify for legal aid and if so, does
that solicitor do legal aid work?
- (not all solicitors do)
· What are the chances of success? - (don't expect a
definite answer, since other factors such as the Judge who hears the case and
the strength of your ex-partner’s case will affect the outcome)
· Could the solicitor help arrange
mediation with your ex-partner?
– (if you have not already done this)
· What chance is there of you having to pay your
ex-partner's legal costs if you lose?
·
Are they a member of
“Resolution First for Family Law” (RFFL)? This organisation used to be called the Family
Law Association and has 5,000 practising family law solicitors as members who
follow a code of ethics aimed at constructive, non-confrontational resolution
of family law matters. Please bear in mind though that if your ex-partner is
using an RFFL solicitor, this does not guarantee proceedings will be
non-confrontational, as the solicitor also has a duty to follow their client’s
instructions.
What should I do in preparation for
meeting with a solicitor? <Back to Top>
Before your first
meeting, try to write down, or at least think of, the
following matters, to help you be prepared when speaking to the solicitor:
1. Outcome: Write
down an outline of what would be the ideal Court decision or outcome. Consider
what is best for your children, not for you, since this is what the court will
do. Next consider the “worst” situation you could accept and also where you’d
be prepared to compromise.
2. History:
Write a chronology (diary) setting out a history of events (including dates and
times if you can) leading up to your decision to go to Court. Let your
solicitor decide what is
relevant and what isn’t. Remember the solicitor will only know what you tell
them.
3. Concerns:
Note down any concerns you have about your ex-partner's circumstances or
ability to care for your children. If you don't have any but think you are more
suitable to be their main carer, that’s fine. The Court won't appreciate
unfounded allegations, and any allegations you make are likely to be tested in
Court to see if they are valid.
4. Contact: If
you're not applying to be your child’s main carer (have your child primarily
reside with you), but simply to ensure you see your child regularly then what
does "regularly" mean to you?
If
you're not currently seeing your child at all then as a matter of urgency have
your solicitor approach the Court
to request they make an immediate Interim Contact Order (this is a temporary
order until the Final Hearing lays down what will happen in the long term).
It is important for both you and your
child that your relationship is maintained while the Court case progresses
(which can take months).
Again,
give thought as to whether this would be every weekend with you, every other
weekend, times during the week so you can be involved with school, as well as how much
of their holidays they would spend with you. Think of the practicalities of the
arrangements including how you can balance looking after your child with work
commitments. Can you carry on your current job and look after your child at the
same time and to the same standard (or better) that your ex-partner can?
5. Consider Shared
Residence: This means both parents have an equal status
in bringing up their child (although the child may spend more time with one or
other parent). A letter from your solicitor to your ex-partner
suggesting this, and looking at mediation to agree the amount of time the child spends
with each parent, is likely to be best for the child
due to less conflict. This will save a great deal of expense, and you will be
demonstrating your maturity in accepting your ex-partner's importance in your
child's life.
6. Confirm whether you have legal Parental
Responsibility: It is important to
ensure that you have legal Parental Responsibility. If not, discuss
this with your solicitor as a priority and
also read our guide on how to find out whether or not you have it, and how to
obtain it if you don’t!
7. Risks and Fast Action: If
you think your partner could be a risk to your child due to mental health problems, drug or alcohol dependency, or other identified risks, then act quickly. Talk to your solicitor about the
possibility of an Emergency
Protection Order.
Don't
rely on others to protect your children. They are your responsibility and
Government agencies have been known to make mistakes. If you have concerns about
your ex-partner, try to assemble evidence to support your case for the first
meeting. Again remember that the Court won't view you positively if you make
unfounded allegations. Don't appear malicious, no matter what unpleasantness
has occurred in the past.
8. Allegations: If
you expect your partner to make allegations, then alert your solicitor. The more prepared
your legal team, the less chance of them being caught without a response,
rebuttal or explanation.
If
you are making allegations, how will you present those fairly, or defend
yourself against counter-allegations from your ex-partner? Don't go to Court on
the premise that you are innocent until proven guilty.
Family
Courts make a decision on the lowest level of evidence. This is known as the
“balance of probability”: in essence, what seems most likely, or will limit
risks. They will take allegations of domestic violence and abuse extremely seriously, and rightfully so, and
while these are being investigated, may reduce or stop your contact with your
child.
You
could find yourself waiting months before these investigations are concluded,
and during that time, your ex-partner will have been the main carer for your
child, and the Courts may be unwilling to change the situation as the child is
now used to living with them.
9. Evidence: If you face allegations of
parental unfitness, or have these concerns about your partner, what evidence is
there to support this or defend against it?
10. Practicalities:
How would you care for your child if the Court granted you residence? Can
you get enough time off work to look after your child for half the holidays? Think how you would look after your
child. If seeking residence or shared residence, would this require a change in
working hours (see our guide on Flexible
Working), change in job, use of child minders or help from grandparents?
How would you financially support your child AND look after them? Compare your
situation to your ex-partner's and consider what would cause the child the
least disruption, while still maintaining a full relationship for the child
with both parents.
11. Your
Finances: If you need legal aid, be ready to discuss
details of the equity you have in your home, your gross earnings, and your
monthly disposable income. The criteria for qualifying for legal aid can
change, and you may need to provide your solicitor with additional
information before they can confirm whether you qualify for free or subsidised
legal assistance. Also check whether the solicitor carries out legal aid work!
12. Your
Future: What is the best outcome for you, as well as your child? Have you
considered what being a single parent means? You may find that having the child
stay with your ex-partner for a weekend, every other week, gives you the
opportunity for a social life, some romance in your life, time for hobbies, or
even the occasional lie-in.
Was the solicitor right for me? <Back to Top>
After
the meeting, consider whether the solicitor was able to explain things to you so you understood, how
confident they made you feel, and whether they fully understood your
situation. Do you think they listened to
you? If not, consider seeing a different solicitor.
Will I need a barrister and what do they do?
<Back to
Top>
Historically,
only a barrister was able to act as
an advocate for a client in the higher Courts (an advocate in this context
being a legally trained professional allowed to speak on your behalf). The
solicitor’s role was constrained to preparing the client’s case and instructing the
barrister on the client’s behalf. The law has now been changed allowing
solicitors to carry out role.
Your
solicitor may consider instructing (employing) a barrister to assist in your case if specialist legal knowledge is
required, and sometimes if there are witnesses or expert witnesses to be
cross-examined (questioned in court). Such a decision should also take into
account the additional cost of doing so.
Larger
firms of solicitors sometimes have barristers working within their firm (rather
than working privately out of a Chambers). If the solicitor believes a
barrister will assist your case, the solicitor is likely to recommend one (or a
choice from several) to you. If, however, you know of a barrister, and want
this barrister to be your advocate in court, you should let your solicitor
know.
When
using a solicitor, how can I keep my costs down? <Back to Top>
Being
prepared prior to seeing your solicitor, including having your instructions in writing, reduces
the amount of time you need to spend in meetings, and saves your solicitor time
when preparing your case. This will save you money. Each hour your solicitor
spends on your case or talking to you can cost you between £150 and £200,
sometimes even more. Think about the cost, and make sure you are fully aware
from the outside of how much your solicitor charges and for what.
Some
people fall into a litigation frenzy, where solicitors letters have to be sent
over what, in hindsight, are quite trivial issues. In day-to-day life, would
you spend £75 on writing a letter about your child coming home with chocolate
stains on their t-shirt, or similar trivialities?
Beware
of using the solicitor as a counsellor. Court proceedings are stressful, and
there is no shame in seeking counselling support. That said,
a trained counsellor will cost in the region of £35 an hour, while your
solicitor will cost you 4 to 5 times that amount, and it is not really their
field of expertise. Keep your conversation with your solicitor to the
practicalities of the case. Speak to your counsellor about the emotional strain
placed upon you by delays, unfairness, false allegations and the other strains
you may have to deal with. Our guide on Managing
Stress may help you (and is free!).
Other tips, once you have chosen your
solicitor <Back to Top>
· Do not assume your solicitor knows something. If you do
not tell them something concerning your case, they will not know!
· Do not leave providing them with important information.
There is nothing worse, for a legal advisor, to be told of allegations at the
last minute, only to find they have some substance, but the client did not give
them any forewarning. If they do not know, they cannot be prepared.
· Ensure your solicitor has copies of all of your important paperwork related to
the case.
· Write a chronology of events which are important for them
to know. We provide a template for a chronology on our documents
page.
· If you keep your letters on your computer, keep a hard
copy, and also a hard copy of any emails you send related to your case.
· Ask your solicitor for, and keep a copy of, all reports,
statements and Court Orders.
· Your solicitor will prepare your statements to the Court on your behalf,
ensuring that they are based on what you say, but phrased in the correct way,
and complying with the correct format. As this is your statement, ask to read
it before it is sent to the Court and your ex-partner’s solicitor. Mistakes can
be made, especially since solicitors rarely do their own typing. The statement
sets out your argument, and puts in a written form the substance of what you
intend to say in Court.
· You may wish to check any letters before they are sent
out on your behalf by your solicitor. This can be done by having your solicitor fax or email
you a copy before they post the letter. There is a cost for doing this so use
your discretion.
· Your solicitor will be handling many cases,
you will be absorbed by only one. You may need to chase your solicitor but,
regardless, ask to be kept informed of what is happening, and if things seem to
be delayed, ask why. Push them if you need to. You are paying them (and not an
inconsiderable sum!)
· Make friends with your solicitor’s secretary. They will be the person that you deal with
when your solicitor is unavailable.
· Ensure your solicitor keeps you
regularly informed of how much you owe them and what the likely costs will be.
·
Try not to have your
solicitor send letters to your ex-partner for frivolous reasons.
These costs can quickly mount up.
A final tip <Back to Top>
Consider what your solicitor says and any advice they give, but remember
that the decision is yours alone, and that you will
need to live with what happens at the end of the court case while your
solicitor will move onto the next case.