Although technically the role of a family lawyer is not to minimise conflict, but to advise a client on the law, and the impact of taking (or not taking) a certain course of action, undoubtedly it is what all family lawyers ought to do, and it is essential when there are children involved and there is a disagreement about the care arrangements for the child.
In that regard, the choice of family lawyer can make all the difference as to whether a case can settle amicably, or whether there will be a fight from the outset. Working collaboratively with the lawyer acting for your spouse in a divorce is much more likely to result in a case which is finished quickly, and at reasonable cost.
One very important element in all of this is the language which is used in solicitor correspondence. Far too often, solicitors will use emotive and inflammatory language in letters, and embark on a war of attrition, telling their client that they are fighting their corner, and they want to show the other side they are tough. Unfortunately, all this does is polarise positions, particularly when solicitors use correspondence or Court documents to make gratuitously offensive attacks either on the other spouse, or even their solicitor.
Although litigation is of course adversarial, it can still be conducted in a manner which is sensible, expeditious and economical. Receiving a rude or aggressive letter is only likely to harden the response of the other side, and that likely ruins the prospect of a quick resolution. It is unconstructive and unnecessary. Equally unhelpful are solicitors who encourage or permit their client to swear Affidavits which contain a tirade of provocative and abusive narrative about their spouse.
As a solicitor, it is our duty to act in our client’s best interests. Provoking the other side is likely to be counter-productive and contrary to that duty, and likely to result in reprimand by the Court and indemnity costs against the solicitor at worst. Although some clients may view their lawyer as their ‘hired gun’, it is important for such clients to be aware that sending aggressive and heavy-handed correspondence is not going to be well-regarded by the Court. Recent Judgments in the Hong Kong Family Court make it clear that Judges will simply not tolerate this, and certain firms have been openly criticised for their litigious approach.
The solicitor is putting forward the client’s case, but it is the client who may eventually have to give evidence in Court and be cross-examined on the contents of the letters. Few clients understand, until it is too late, that what was written by their lawyer in a letter 12 months previously may be the subject of intense questioning by a very capable barrister representing the other side. It is usually not a good excuse to say the letter was written without instructions or approval.
Although the language used by lawyers is important, we must not forget about the Judges, and the language they use in Court. For a couple going through a divorce, entering a Court room can be a very daunting prospect, and what they hear from the Judge can also have a significant impact on the prospects of whether a case will settle.
On this subject, I recently read an article in The Times of India explaining how lawyers and Judges in India need to be educated on how to avoid using discriminatory language towards women in legal pleadings, the Courtroom and Judgments, and they need to be equipped with tools to identify, understand and reject stereotypes.
In an attempt to move away from what are quite frankly unbelievable stereotypes, the Chief Justice of India has launched a 30 page ‘handbook’ with ’alternative language’ to be used by Judges. I set out here just a few sections from the handbook to give a ‘flavour’ of the views expressed by certain Judges:
- Unmarried women are incapable of taking important decisions about their life
- Women should do all the household chores
- Women who are also mothers are less competent in the office because they are distracted by childcare
- Women who dress in non-traditional clothes want to engage in sexual relations with men
- Women should be submissive or subordinate to men
- Women are overly emotional, illogical and cannot take decisions.
Certain words are also identified in the handbook as now being ‘incorrect’. For example ‘bastard, obedient wife, fallen woman, unwed mother, chaste woman, seductress, and woman of loose morals’.
The Times of India article includes many more extracts from the ‘handbook’.
Whether this will actually change what happens in practice in the Courtrooms in India is another matter, particularly in a society where Judges will ask rapists whether they will ‘marry their victim to lessen her dishonour’.
The ground-breaking initiative under the directions of the Chief Justice of India is aimed at fulfilling the Indian Judiciary's goal of eradicating pre-conceived gender stereotypes from judicial discourses, especially those concerning women.