Wednesday, 9 June 2010

A lawyer who acts for himself (herself) has a fool for a client

The reality about family law is that, unfortunately, not everyone can afford to have a lawyer, or falls through the gaps- can't afford legal representation and is not eligible for legal aid. Some people who can afford to have representation choose not to. This old proverb, which I thought was spoken by Dr Samuel Johnson, is still apt.

Apparently, it has now made its way into caselaw, at least in the US.

Family law cases occur ordinarily when the emotions are running high. It's generally a good idea to have someone who knows what they're doing and can advocate calm, rather than to do it yourself when your emotions are running out the door.

One of the most effective roles of a family lawyer is to be that objective element and to, as one of my colleagues once put it (and not always observed, unfortunately): " represent a client's interests, not their anger".

Yesterday I blogged about Wilson v Wilson, in which the husband sought unsuccessfully to be divorced. This case is the classic one of someone who should have known better. The husband was a solicitor. As a lawyer, he is an officer of the court. Although less than complimentary of the wife, Federal Magistrate Lapthorn showed the clear difficulties for the husband, as a solicitor, and someone who should have known better, in acting for himself on the divorce:

After having observed the parties give their evidence I was left with the impression that neither of them had an accurate recollection of the events surrounding the deterioration and collapse of their relationship. Both parties were adamant in maintaining their view of when separation occurred although the husband gave a number of different dates. The husband presented his evidence in a forthright way but was at times argumentative and angry. I warned the husband on at least one occasion to not argue and to answer the questions appropriately. The need to warn a solicitor of this requirement was disappointing. Whilst I accept that family law disputes are emotional for parties even if they are officers of the court it remains unfortunate the husband was unable to remain respectful in the delivery of his evidence at times. The wife was also forthright in the way she gave her evidence at times but at other times appeared unable to recall precise dates and events. Whilst this may not be all that unusual I was left with the impression her memory was selective and her answers may have been given to reflect her perception of what would assist her case. Overall I was left with the impression that the parties had either become so entrenched in their view of events that they could not possibly see that the facts were any way other than as they recall them or that each of them was less than truthful. Either way I was not assisted to determine the truth on their evidence alone. (emphasis added)

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