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3 reasons why your client wants their day in court

Contrary to popular belief, most lawyers spend their lives attempting to dissuade rather than persuade their clients to go to court. 

Those on the ‘inside’ of the profession know only too well the flaws of the system and the reasons why court is often best avoided. 

So why are clients sometimes resistant to our advice? Why do clients sometimes seem to want to go through what we lawyers know can be an underwhelming, expensive and sometimes downright traumatic experience? 

Is it that they’ve seen too many legal dramas with lawyers banging their fists on a courtroom desk before revealing a ‘smoking gun’ piece of evidence to a shocked judge and jury?

Maybe. Maybe not.

I think there’s actually deeper psychological reasons at play.

Here’s my top 3:

  1. Because you keep telling them it’s a bad idea

As lawyers, we think our job is to argue our point; to cajole and to convince at length until it has the desired effect. 

But what if all of this might be having the opposite effect to the one intended? 

Reactance is a psychological term describing the (often unpleasant) reaction we have to people or rules that threaten or take away our behavioural freedoms. So, if we feel that someone is taking away or limiting our options we rear up like a rebellious horse. We become more steadfast in our own views rather than being persuaded to change them. 

We see reactance in our lives every day. And often in circumstances where it seems illogical. Take for example many people’s reluctance to wear masks and stay indoors in response to the threat from Covid 19. 

And, on a broader level, haven’t many of us felt resentment and resistance when dealing with an overbearing parent or boss who tries to tell us what to do and how to do it? 

And who hasn’t tried to advise a friend or partner who they feel is going down the wrong path, like developing an addiction, only to find that the more we persist, the more that person digs their heels in?

People don’t like it when others overstep their personal boundaries. They react.

And this reactance is heightened when it comes to legal disputes because the people involved are usually frightened. And when we’re frightened, our egos get attached to our ideas about things. And we cling to what feels safe. 

Curiously enough, the formality of a courtroom and the authority of a judge often feels to clients like the safest and most ‘known’ option. They’ve seen it on telly or their friend or family member has been through it and they feel like they sort of know the deal. 

That’s not often the case with more new-fangled methods of dispute resolution like arbitration or mediation.

2. Because they need to be ‘witnessed’

When we go through any sort of loss we need that loss to be witnessed. If that doesn’t happen it’s harder for us to psychologically process the grief or loss. 

There’s something that’s important about having loss acknowledged and reflected back to you. People are increasingly open about loss on social media these days, for example celebrities like Chrissy Teigen and John Legend who’ve opened up about loss recently. A part of that is due to this need to have our losses witnessed.

Clients who are embroiled in a legal dispute and contemplating court are suffering some sort of loss too, whether that hit is to their wallet or their emotions (or often both).

But do people really need to go to court to be ‘witnessed’? 

I think that for some clients that does feel necessary.

Because effective ‘witnessing’ takes place when there is a process that properly reflects and befits the pain and the loss. That’s why, when someone dies, we have funerals, cremation ceremonies or memorial services. There’s a comfort in such formalities; their gravitas reflects the extent of the loss involved. The steadfastness of the rituals are something to hold on to when everything else in your world is topsy turvy. A court process satisfies a similar need for some clients.

And a public judge has a particular potency in clients’ eyes that mediators and possibly even arbitrators may not have. Yes, a client can be ‘seen’ and ‘acknowledged’ in mediation and arbitration. But there is an extra hit of validation that they receive (or hope to) in the public court system. And while, for some clients, non-court dispute resolution is attractive precisely because it takes place privately out of the spotlight, for others this takes away that element of validation of their loss that a public system provides. 

3. Because they feel they need protection

As I’ve said, most people in legal disputes are scared. So they feel they need to be protected. And the court system, flawed as it is, gives them a sense of protection. 

You may have a client who is as confident as they come, perhaps even aggressive at times. You may be thinking they are the last person who needs to feel the protection of the court system. 

But remember this: there’s often huge dissonance between how a person presents and how they actually feel. And often the bigger the bluster the deeper the insecurity.

Our clients are usually reacting to the stresses of the situation from a childlike state. So, while the world sees them as an angry adult, they see themselves as a fearful child under attack. Looking at the world through a childlike lens makes us prone to overestimate dangers and underestimate our ability to cope. And so the court system, while scary in one way, can also provide some degree of certainty and comfort for a person who is feeling vulnerable. 

So what should we be doing?

First, understand that the client may have emotional reasons for wanting to go to court. And trying to fight against those emotions directly like a battering ram is pointless. So, instead, try to get inside their head and see the world the way they do. 

Second, resist ‘over-advising’ them. What I mean is the cajoling and pointing out the flaws in the court system until their eyes have glazed over and they’ve stopped listening. Avoid that. Try a more round the houses ‘I’m not even trying to persuade you’ approach (see 3 below). 

Third: be curious and open-minded (genuinely). Yes, give them the information they need. But then, walk alongside them; see the world like they do, ask open questions: ‘what do you think the outcome of going to court might be?’, what do you think you’ll do from here?’. Give them the space to come to their conclusions. You never know – they might surprise you.

It’s about more than the cardies

The legal world was rocked last week (OK, slight exaggeration) by what is now known as ‘Vardie cardie gate’ (or ‘Vardigan gate’, to use its formal name). An email written by well-known family law firm owner Ayesha Vardag was leaked to the press, in which she berated staff for wearing cardigans or ‘winter woolies’ that would look more in place round a fire than on high flying lawyers. She also condemned other sartorial no-no’s such as ‘super-tight trousers’ and pointy or brown shoes (‘no brown in town’)

Mo’ money, smarter lawyers?

To be fair to Ms Vardag, she appeared to be trying to deliver a legitimate message in a slightly jovial, tongue in cheek way. Her basic point being that lawyers who charge hundreds of pounds an hour working for wealthy clients cannot afford to look scruffy. 

Now, it’s fair to say that, for most of us, standards in relation to appearance have slipped somewhat in lockdown. Most of us are, by now, opting for comfort over the ultra-polished style that Ms Vardag recommends. By the way, for those trying to work out what her term ‘executive hair’ actually means, I suspect it’s more the tight bun a la Ms Trunchbull from Matilda and less of the Shakira-style flowing locks. 

Comfy cosies 

For many of us, dropping a bit of the formality has been a natural response to the horrors of this year. And as the news continue to drag us down, the weather gets colder and we retreat back into lockdown, the comfort that cosy cardigans, hot water bottles and hot chocolate bring makes them this season’s ‘must-have’ items. 

It’s also true that the mickey-taking that has ensued as a result of cardie-gate has provided us with some much-needed respite from all the grimness. God knows we all need a laugh, and this was manna from heaven for a legal community struggling with either overwork or not enough work, a court system in disarray and a gloomy (and therefore tightly wound) client population. 

Dressing for ‘success’

The wording of the email may have left something to be desired, in particular the suggestion that female lawyers should appear ‘discreetly sexy’. But is it fair for us to have a chuckle at Ms Vardag’s expense and deny that any of the rest of us have any expectations around dress? 

Isn’t it the case that Vardags’ clients would want and expect their lawyers to look a particular way; smart and sleek and, dare I say it, discreet? And that such well-heeled clients would doubtless complain if they felt that their lawyer who they’re paying thousands each month to looked like they’d just rolled out of bed or were on their way home from Glastonbury? 

Having worked in a Central London law firm myself, I think that the truth is that versions of this situation must go on in firms pretty regularly (albeit in a slightly more low-key fashion). 

Standing out or fitting in?

Traditionally, law has never been a profession that’s particularly into self-expression. It’s a hierarchical, conservative world where one ‘know one’s place’ and where you’re not considered to be ‘senior’ until you’re about ten years away from retirement. And encouraging staff to adhere to a particular dress code is a part of all of that.

But there’s an important point here about expressing individuality. 

The truth is that even lawyers who consider themselves open-minded tend to balk at first when faced with change. 

Many of us, if we’re honest, have at some stage raised an eyebrow at a trainee coming to a court hearing in a brightly coloured suit or a junior with large visible tattoos and piercings. Or even felt affronted by an outspoken new hire going against the grain and expressing contrary views in meetings with important clients. It seems many of us seem to have an inner cautious fuddy-duddy, no matter how well-hidden. 

Excessive deference?

The thing is that encouraging homogeneity in appearance isn’t just limited to that. It is also associated with homogeneity in attitude and views. And we already know that we have a problem in the legal profession in a lack of diversity in backgrounds, schooling and privilege. 

Malcolm Gladwell, in his book ‘Outliers’ shared his theory that, in countries where deference to authority formed a strong part of the culture, the rate of airline disasters were higher than others. He concluded that junior officers were less likely to feel able to mention it if they didn’t agree with a decision taken or a view held by their superiors. Thus, mistakes were less likely to get picked up and potential crises averted. 

Gladwell referred to the concept of the ‘Power Distance Index’, created by psychologist Geert Hofstede, which is a measurement of “how much a particular culture values and respects authority’ and so dictates how comfortable juniors feel contradicting their bosses. 

I think law, generally, has a high ‘Power Distance Index’. Those higher up the food chain are revered and, in many cases, feared. This is shown by the well-publicised Solicitors’ Disciplinary Tribunal cases about juniors making mistakes, feeling too scared to tell their bosses, then trying to cover them up, leading to dire consequences. 

Speaking out

Many junior lawyers work within a culture where it’s already difficult to express their views or concerns. And being prescriptive about attire further hammers home the message that it’s good not to be different, not to rock the boat, not to question things. It’s better to all be the same – in the way we look, in our views, our approach and our beliefs. 

Some would say that’s what having a ‘strong brand’ is all about. But it runs the risk of stifling juniors’ ability to contribute to debates, because they think that the ‘right’ answer is always the one their boss has come up with. 

We all have blind spots and diversity of thought in teams is crucial, particularly in a profession that needs to move away from fixed ideas and become more flexible and inclusive. Experience is to be respected but sometimes those newer to the job have fresher perspectives and can fill in the gaps that other, more seasoned professionals might not see.  

Get your snuggle on

So it’s possible that there may be more profound reasons for getting your cardie out of the closet. Get snuggly and use the ease of wearing your woolies to help you get comfortable expressing your views, no matter how stupid you might think you’ll look. You probably won’t look stupid. You’ll probably just look well cosy.  

*Outliers – The Story of Success – Malcolm Gladwell, Penguin (24 June 2009)

What makes a ‘good’ (and ‘bad’) relationship?

Me and ‘him indoors’ celebrated our wedding anniversary last week. This gave me a chance to share photos on social media of our wedding day; me looking pretty, him looking young; both of us looking considerably less knackered than we do now. 

On a slightly less shallow note, it also got me thinking about relationships; what makes a ‘good’ one and what makes a ‘bad’ one. 

Because I spend most of my life talking with clients in therapy about relationships. And in my former life as a family lawyer I spent a lot of time talking with people about those relationships that had gone sour, the ‘bad’ ones. 

Black and white 

But is the distinction between good and bad really that clear cut? 

I think not. As a society, we seem much too quick to assume that it is, to categorise, to pass judgment and to label. Who is the ‘good guy’ and who is the ‘bad guy’? Who is the ‘cheater’ and who is the ‘cheated’? Who is the ‘addict’ and who is the ‘victim’? 

And we’re supported in that attitude by the system. It is changing but, at the moment, divorce in this country still generally requires proof of fault. So, in most divorce petitions one spouse gets to list the other person’s most significant imperfections and use them as evidence of ‘unreasonable behaviour’ in the marriage. 

I used to tell clients all the time that this was just a (slightly meaningless) hurdle to jump over and that it wouldn’t have any practical impact on the outcome of the divorce. But all of that means little to someone who’s having to fill in an official form which has a very clear message: unreasonable behaviour by one person = bad relationship = divorce. 

Adding to the absurdity of it all was the fact that I knew I could probably think of 4 or 5 examples of my husband’s ‘unreasonable behaviour’ off the top of my head. And I had no doubt he could do the same for me. Yet I considered us to have a ‘good’ relationship.

Because actually we know that everyone behaves unreasonably in relationships. Particularly when you add in life stuff to the mix; money worries, stresses with children, cramped living spaces, problems with building work, losing your job, bereavement etc.

Add a pandemic and living together in lockdown and it becomes ridiculous to expect people to behave reasonably at all times. Our (understandable) anxiety at the state of the world is inevitably going to come out sideways, whether it’s at our spouse, our kids or the person on the end of the call centre phoneline (I speak from experience).

Mirror, Mirror on the Wall

But how do we know when a relationship is ‘bad’ enough to justify ending it? There often comes a tipping point; a moment where a person starts to wonder whether the negative characteristics or behaviour of the other person have started to outweigh the good. 

The tricky thing is that, once we start to turn the spotlight on the negative, it’s very hard to turn that spotlight off again. It reminds me of a two-sided mirror I have on my dressing table. On the one side, you see yourself as you are, your reflection the size it is. On the other side, everything is magnified; those eye bags, open pores and other imperfections are suddenly revealed and staring back at you in their full glory. 

When our relationships hit bumps in the road we flip over that mirror to extra magnification. All the imperfections that have been there all the time are now seen in high resolution and they become all we can think about. And as our attention fixates on the wrongdoing of the other person, our own shortcomings start to fade into the background of our minds. 

What do we expect?

Our view of our own relationships is inevitably affected by our expectations of relationships in general. Without realising it, we all go through life with some sort of template in mind for how a relationship should be. And some of us have higher expectations than others. That can make us more likely to be reactive when arguments arise, because the relationship is not fitting the ideal we had in mind. Whereas someone with lower expectations and standards might think that that same relationship is relatively OK, just with the usual ups and downs.   

So it’s fairly common to see two people in the same relationship where one sees their problems as insurmountable and the other as mere challenges to overcome. 

Words are weapons

The agony aunt and broadcaster Mariella Frostrup published a response recently to a letter from a husband who was shocked at discovering that his wife was planning to divorce him. He was devastated that she had referred to him in an email to her solicitor as ‘abusing’ her during the relationship. He said that there had not been any abuse, although there had of course been disagreements. 

Clearly, abuse goes on in many relationships; it is horrific and the victims should be protected and the perpetrators punished. 

But the exchange that Frostrup had with this man reminded me of another group of relationships. These are ones which are tempestuous and argumentative (on both sides). When they break down and lawyers become involved, terms like ‘abuse’ may start to get used. This can happen partly because when one becomes embroiled in a formal legal process, there can be a desire to formalise and put a name or label to behaviour. But in some cases terms like ‘abuse’ are used cynically (sometimes by both sides) to try to denigrate the other person and thereby gain an advantage in proceedings.

Words are weapons in the legal process. Using terms like ‘abuse’ or other labels that sometimes get bandied about such as ‘bipolar’ or ‘narcissistic’ helps no one, if it’s done without sufficient justification or evidence. When stresses arise we can all be argumentative or withdrawn or withholding. It doesn’t mean we are abusive, or narcissistic or bipolar; it means we are human. 

So what is a ‘good’ relationship?

One family lawyer I know has a standard question he put to clients who were on the fence about whether to divorce or not. The simple question was ‘are you happy in the relationship or not?’. 

That’s a nice and simple approach but unfortunately, I don’t think people and relationships are simple and they’re often not nice. Personally, my answer to that particular question on any given day could vary wildly, depending on how much sleep I’ve had, what else might be going on in my life and the general state of things between me and my fella at that time. 

The question also presupposes that we are consistently happy in our relationships. I don’t think that’s realistic. Every relationship has its phases, some of contentment, others where it’s difficult and you feel disconnected from or irked by each other. How could it be otherwise? I don’t think that’s necessarily the marker of a ‘bad’ relationship.  

Increasingly my definition of a ‘good’ relationship is whether you have two people who are both willing to look at their ‘stuff’. 

Are you both willing to keep turning that mirror over, shining it on the relationship, not only looking at the other person’s shortcomings but also looking at yourself, how you relate to the other person, your character traits and your flaws? And are you willing to keep working on them? 

It’s a process that’s definitely not quite as pretty and shiny as the photos from our wedding day but it is a bit more real.