I often see clients who are looking for second opinions on their cases. Many of them have started off with local solicitors, or solicitors they have known for many years. Typically, such a client had been brimming with confidence at first, and had been assured that family law was straightforward.
After a few months, however, the client will have found themselves no further forward in their divorce, and cannot see a way out. Frequently the only practical advice given to them is, “let’s look at a settlement when we know the whole picture”. Bogged down in paperwork which purports to give “the whole picture” when it doesn’t, they begin to despair. The solicitor remains reluctant to give advice about what settlement should be in the offing. With the process dragging on, costs are mounting.
I don’t wish to blow my own trumpet, but family law is much more complex than it may appear to be at first sight. I make this point to lawyers rather than clients, because lawyers tend to think it is a relatively easy field of law. It isn’t.
I met one such client this week. He has been having sleepless nights and fears that there will be nothing left after his wife — whose solicitor certainly knows what he is doing — has finished with him.
So what goes wrong? In my opinion there are two important factors, which people should know about before — rather than after — they embark on divorce proceedings.
Firstly, I think a competent solicitor should be able to give a good steer at the very first meeting, having extracted all the relevant information about the client and the factors that a court will take into account. The solicitor should be able to provide details of outcomes in similar fact cases and the likely outcome therefore for the client.
I’m not a fortune teller, but I can advise about what is likely to happen in most cases, usually with the parameters within which I think the court will make its decision. Even in the most complicated cases, with the most complicated of assets, it is possible to advise a client about the likely outcome of a split. I will also provide an estimate of the likely costs of the case.
This is advice that clients need to know — however difficult it is to give.
Clients want to know about likely outcomes and costs, and they want reassurance. What they don’t want is to be fobbed off. If a solicitor cannot provide this advice — even when it is qualified within a range of parameters — I don’t think that he or she should be advising the client in the first place.
This is why in my offices, even though I don’t deal with the routine day to day issues on clients’ files, I will usually see each client first. This means that I can advise, guide, direct and review every case’s progress. This approach ensures my input until the case is resolved — but also ensures that legal costs are contained.
Secondly, I don’t understand why some solicitors don’t advise their clients about financial proceedings as soon as they can. If the solicitor is acting in the client’s best interests and it isn’t one of those exceptional cases where the parties are in close agreement, this should be a no-brainer. The court doesn’t regard it as an aggressive stance, it keeps costs contained and it timetables the case so that the end is in sight.
However, many solicitors prefer “voluntary disclosure” as the way to go. They believe — wrongly, in my opinion — that it will keep clients amicable. I disagree. It shifts power towards the party who has no wish to reach a swift conclusion, — and in these recessionary days, such an imbalance of power can become all the greater. It has no “teeth”: a party refusing to play ball, who wishes to drag out negotiations, need not produce full disclosure because there is no court sanction.
On occasion, some solicitors are even prepared to advise clients on the basis of disclosure which is unsworn and therefore, in my view, should not be relied upon. This means that when and if negotiations break down, the entire process — or most of it — will have to begin again, under the auspices of the court. Costs climb. So what is the point?
I can more or less guarantee that when a second opinion is sought, it is a direct result of one or both of the above.
Nicknamed "The Barracuda" for her tenacity, Marilyn Stowe is one of the UK’s most sought after divorce lawyers, and is the senior partner at Stowe Family Law.