Acting to stop harm: the FCA and Appointed Representatives
Author Nassim Nicholas Taleb wrote “Skin In The Game: Hidden Asymmetries in Daily Life", which is centred around the idea that people should only be listened to or trusted if they have a personal stake in the outcome.
For many people, their divorce or marital agreement is the most significant negotiation or contest they ever enter into and they put their trust, usually, in someone who is remunerated according to how long they spend on the task. Win or lose, their divorce lawyer earns exactly the same.
There is a regulatory reason for this in the UK as the concern is that if a lawyer is rewarded according to outcome in divorce, he or she might be conflicted and will manage the outcome according to his or her own interests and not the client’s.
Years ago and before the days of White v White (a case which saw birth to the idea of 50/50 division of capital on divorce), a client offered me a vintage Jaguar MkII if I got the settlement in under a million. I took it as a joke and failed, but the idea appealed to me.
Recently, a client asked me about the self-interest lawyers have in the prolongation of the divorce process, about “Trust and The Chargeable Hour”, the quality of each hour and how the client might and should be involved in managing it, how accountable I would be and how a fixed fee would be their preference.
I explained that fixing a fee involved risk (predominantly mine) as I am involved in divorces that cost in the tens to hundreds of thousand £s - some settle early and others not until the appeal process has worn out. But “why not expose yourself to risk when you expect us to?” they ask. Well, firstly it’s not my divorce and then the judges in England & Wales are given a wide discretion on how they make their minds up. On any given day, judges across the country will come to a different conclusion based on almost identical facts and figures and none of them may be wrong although some may be found to be wrong after an appeal. This explanation often leads the client to the conclusion “so you really have no idea and you charge x“ (a bigger figure than we like to acknowledge because clients are smart enough to work out that £400 per hour (+VAT) is almost £500. Well of course I do, I say, holding my hands apart (unmeasured) - but you see it’s that discretion thing and the judge may not like you, or have forgotten that they don’t like your spouse by the time they come to put their decision into print, at times many months later.
It comes down to choosing the right one, managing them effectively, building rapport and treating your divorce like a job. Here are some of my tips to making it work.
These can provide a helpful guide and validation, but take what you read it with a pinch of salt and be aware that the testimonials you read are often written by “friends” and those who might have a close financial relationship with the person or the organisation.
Time equals money. The best thing that you pay a lawyer for is advice not administration. If you can do the administration for them, they can focus on the advice. If you have a team working for you, it will consist of partner(s), lawyer(s) and paralegal(s). Ask for monthly bills which should come with a breakdown and then ask your lawyer for regular client relationship calls (non-chargeable) to discuss how the team may be better optimised for you so that each member is working according to his/her pay grade and how to best manage any potential duplication of roles, including yours and the fee-earners’.
If you are paying for experience, it should be possible, from day 1 to ask for a broad prediction of the outcome and identification of areas of difficulty as well as a strategy to achieve a positive outcome. The strategy should tackle who will do what and how it will be charged (think of the building project involving an architect, bricklayer, plumber, electrician and their assistants).
Divorce consultants can play a key role as part of your divorce team. Among a number of services, they can assist you with preparing budgeting estimates properly for instance. There are a number of seriously good divorce intermediaries who will support and help manage everything but at a significantly lower cost. Your divorce lawyer should recommend options for you to consider. Laura Rosefield assists a number of our clients and she is considered one of the best.
I rarely, if ever, come across a divorce lawyer who intentionally runs a case to make more fees. Clients believe this to be the case, but they are wrong as it is more often than not the egos that rack up fees. So don’t let your lawyer’s status or personality run your case - the client is the boss and if you think they need to cool it and adopt a different attitude, tell them to do so or sack them as although I cannot remember if Godzilla beat King Kong, I do know that the Empire State building was the collateral damage.
The best advice I ever heard from a divorce lawyer about getting divorced themselves was to “provide my husband’s lawyer with the biggest, best organised and complete bundle of everything they might ever want, together with a proposal and give them absolutely nothing to do but negotiate”.
If you can talk to your spouse, then do it. Don’t exert pressure but doing all the other things on this list demonstrates that you mean business; that you’re attempting to make everything as transparent and simple as possible; and that despite everything that has happened between you, the two of you should be more invested in a smart divorce than your lawyers ever will be.
Ask your divorce lawyer to involve you in the negotiation of the experts’ fees and who is chosen to be part of your divorce team, e.g. barristers, valuers and accountants.
Meet your prospective divorce lawyer before they turn on the meter and bring a friend or family member to that initial meeting. Ask yourself whether they will tick all the boxes on this list and trust your instincts.
With a clock ticking at hundreds of £s per hour, you could be forgiven for thinking that you had bought your lawyer, body and soul. But if you employ a good divorce lawyer, expect them to be busy. Develop a relationship with their PA and fix times to speak with them. Don’t be afraid to try something unconventional to get them on side, perhaps even take them out to lunch (off the clock- if they have any manners or sense they will probably offer to pay), treat them like any other business relationship and do listen to what they have to say as there is no point paying for advice if you don’t take it.
If you have any questions about the issues raised in this blog, please contact a member of our family team.
For further tips on how to effectively manage your divorce case, you may also be interested in reading our recent blog on how to save money on divorce and build your best case.
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