The Smart Divorce Podcast

A week in the life of a barrister

• Tamsin Caine • Season 9 • Episode 1

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Have you ever wondered what a barrister does in their working week when they’re not in a meeting with you? In this episode, Tamsin is joined by leading family barrister Rhys Taylor to find out more about what his work involves.

With his depth of knowledge in courtroom advocacy and client advising, Rhys joins us on the Smart Divorce Podcast to unravel the complexities of family law. His candid insights from the dual perspectives of a barrister and part-time judge illuminate the behind-the-scenes of legal strategy, from the preparation of pivotal written notes for FDR hearings to the subtle art of steering clients toward amicable resolutions.

This episode isn't just about the inner workings of the legal system; it's a masterclass in the human element of law. You'll hear firsthand how a barrister like Rhys balances the roles of advocate, advisor, and sometimes, peacemaker. The detailed anecdotes shared provide a window into the emotionally charged world of divorce cases, where barristers do much more than argue points of law—they foster understanding and cooperation in the face of discord. Our discussion with Rhys also sheds light on how the direct public access scheme empowers individuals by allowing them to seek advice straight from the experts.

We wrap up with practical wisdom you can apply should you ever face the challenges of divorce litigation. Whether it's the strategic importance of managing client expectations or the nuanced dance of compromise and persuasion, Rhys Taylor's expertise is a lighthouse for those navigating these difficult waters. Tune in to gain invaluable insights from a barrister who not only represents his clients but also shapes the legal landscape, ensuring that every voice in a family law dispute is heard and validated.

To learn more about our podcast sponsor Ampla Finance – access their product guide here: https://bit.ly/3Ieqmuc
Or complete enquiry form https://bit.ly/3W4J7pz and one of the team will be in touch.


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Tamsin Caine:

Hello and welcome to the Smart Divorce Podcast. This is series nine and in this series we're going to explore what makes up the working week of various different professionals who work in the divorce world. You'll start to understand what they do, both during the time that you see them, how they prepare for meetings, and what work goes into the work of a divorce professional outside of the time that you spend with them. I'm really looking forward to some amazing clients in this series. We talked to aister Family Solicitor, Financial Planner, Divorce Coach and really hoping that you're going to enjoy it and get a lot from it as well.

Tamsin Caine:

Hello, and I am delighted to be joined today on the podcast by my Twitter friend or maybe I should call him an ex-friend now, but that feels a bit rude the wonderful Rhys Taylor. Hi Rhys, how are you doing? Yeah, good thanks. I don't think I want to call you an ex-friend. I don't think that sounds great. So you're joining me today to talk about your role as a barrister, first and foremost, but can you tell us about the many other hats that you wear in your many different roles?

Rhys Taylor:

Well, hello Tamsin, and thank you for inviting me to speak to you about the role of a barrister today. I do wear many hats. My principal role is as a barrister and in that role I act for people. By going to court, I advise people about keeping out of court and settlements, draft papers We'll talk about all of that in a minute.

Rhys Taylor:

So the principal bit of my professional life is acting for people, but I'm also a part-time judge and that's known as a recorder, and for about 30 days a year I sit in the family court deciding family cases, and so that's another bit of my professional existence.

Rhys Taylor:

A further bit of my professional existence is engaging in dispute resolution, and so I am a mediator, I'm an arbitrator, which is somebody who can make a binding decision for people if he's invited to do so decision for people if he's invited to do so and then I'm also an evaluator, and a lot of family law finance cases get resolved by people doing a deal following what's called a financial dispute resolution hearing, where either a judge in the court or a private evaluator gives an indication, a sort of scratch and sniff, quick view as to how the case looks to them.

Rhys Taylor:

Beyond that activity, I'm a member of something called the Family Procedure Rule Committee comprises senior judges, barristers, moj officials, other people interested in the family justice system, and we look to keep up to date the family procedure rules which govern procedure in the family courts and also to take into account new legislation and developments or tweak the rules if they need amending for any particular reason.

Rhys Taylor:

And then, in my spare time, I'm also a member of the Pension Advisory Group, which I've had the privilege of working with you, tamsin the privilege of working with you, tamsin where we, over the course of the last 18 months or so, have published the second edition of the Guide to Pensions on Divorce. And then I'm also an author, contributing editor, of something called the Family Court Practice. We lawyers call it the Red Book. It's the key text which goes into most family lawyer shelves. And I'm also the editor of something called the Financial Remedies Journal, which is free to access online if you want to have a look at any of the updating articles there as well. So I'm kept fairly busy by family law.

Tamsin Caine:

I mean, I was going to call this series the day in the life of, but the day in your life must be so very different from one day to another. With all those hats that you wear, one needs lots of magic time.

Tamsin Caine:

We thought we'd focus on one role, role um. If anybody is interested in learning more about your roles as um in private FDRs and in arbitration, we did record some podcasts what feels like many moons ago now on those subjects so you can go back to series one and hear Rhys talk about those. But today we're going to focus on the role of the barrister, and I think it would be useful to begin with perhaps even to define what the role of a barrister actually is.

Rhys Taylor:

So what's the role of a barrister? We are largely a referral profession, which means that members of the public don't come to us directly. We are instructed by solicitors, but there's an exception to that and I'll come back to that in a minute. But in our primary role as a referral profession, we are there largely to concern ourselves with advocacy in court. So our job is to pick the papers up, take them to court and try to persuade a court of our client's point of view. So advocacy is a key thing thing, but also advising clients about what their position is likely to be if they go to court and, if they, if their position is likely to be unfavorable, um advising them as to what they might like to try and do to settle a case. So that's another feature to the role of a barrister. And then I would say, in more modern times, lots of barristers are involved in dispute resolution in one way or another. So there'll be very few barristers who haven't attended a private FDR hearing or mediation or something like that. And so primarily advocacy, advice, dispute resolution.

Rhys Taylor:

We don't judge people. We're on what's called the cab rank, and so I'm not there for the husbands and I'm not there for the wives. I'm there for the person who comes along and instructs me and from time to time the people who instruct me have got themselves into a real pickle, for whatever reason, in their personal or their financial lives. It's not my job to judge that. It's my job to do the best I can for them in the circumstances in which they find themselves.

Rhys Taylor:

I said a moment ago that we're primarily a referral profession and for the last few years there has been something called the public access scheme, where barristers who are registered to accept instructions direct from members of the public can do so. Um, but it is um. It's not the bulk of most people's work and of most barristers work and and many of us aren't even registered as public access barristers. I I was um many years, but I haven't been registered to accept those instructions in that style for many years. I'm just too busy with all the other things. I need a solicitor to hold my hand and put all the papers together in the first instance.

Tamsin Caine:

In terms of advocacy, that's an in-court role, from what I gather. So that's you appearing in front of a judge, as we've seen on TV, and talking to, presumably, witnesses or people involved in the case and putting your client's point across. Have I understood that?

Rhys Taylor:

correctly. Yeah, you have, but the bulk of finance advocacy, which I mean I mainly deal with financial disputes. The bulk of that kind of advocacy, in fact, in court tends to be case management and then moving into the financial dispute resolution hearing, where parties sort of pitch their case for half an hour or 40 minutes. Each side gets a say, they put in some written summaries setting out their best points, and then the judge gives that indication I was talking about a minute ago and lots and lots of cases settle at that stage, and so it is a tiny slice of cases that actually go the whole way through to a final hearing where parties are giving evidence and being cross-examined. I mean, it sounds odd, doesn't it? Because one imagines barristers sort of being in court cross-examining every day. But the modern way of conducting this kind of advocacy includes that role, but it's not. It's not. You know the start and end of the role anymore.

Tamsin Caine:

So that that makes sense, I can. I can see how that works in terms of the kind of other parts of your role. At what point would a solicitor or lawyer get you involved in a case? Is there something that kind of triggers? Oh well, we now need to contact a barrister.

Rhys Taylor:

Well, it depends. There used to be quite a big distinction between the bar and solicitors, and solicitors were never advocates in court and all of the advocacy work came to us. That's not been the case for many, many years now, and it may be that a solicitor chooses to do their own advocacy, and that's absolutely fine and many solicitors do it absolutely brilliantly. Um, but um, one of the reasons why I would be brought in is for those solicitors who choose not to do their advocacy and so, um, that is, that is a moment where where they may reach out to chambers, but also sometimes, the untangling of a legal problem and giving advice in a specialist area is something, um, that the bar is um able to help with.

Rhys Taylor:

Um, different barristers have deep pockets of expertise about particular areas of the law. Mine, mine, for what it's worth is probably pensions and disputes about property ownership between unmarried people, or you could have a divorce situation where other family members say they own, they co-own the house or they've got an interest in the family company or something like that, and so sometimes, um the uh, the problem has become very complex and knotty and that you need somebody to have a dispassionate look at the papers to date, draw all the threads together and give some advice as to the shape of things going forwards, and so I always like to think I have the privilege of working with some excellent solicitors who do a really good job, but I always think, well, my job is to add some value. If I't add some value, what's the point of me? Um, as a, as the second lawyer, being brought into the case, and so I'm either bringing my advocacy expertise or I'm bringing some legal expertise, um, and adding some, some, a new perspective, some new insights and a strategy for going forwards.

Tamsin Caine:

OK, so let's use pensions because that's something that's close to both of us and both of us, I'm sure, spend a huge amount of time working in that area, a huge amount of time working in that area. So, let's say there were complexities around pensions that were being looked at. Perhaps there's an expert report that's been received by the single joint expert report. What would be your preparation in order to go in to meet with the client and the solicitor and advise them on that case?

Rhys Taylor:

well, I mean it depends how complicated the papers are. I mean, because of my um deep knowledge of pension problems. There are very few problems I haven't seen before, and so I'd read the. I'd read the pension report, um, and the associated papers that go with it and that may take, I don't know, somewhere between two and four hours, I suppose, to start from a standing start, understand what's going on, read into what it's all about, identify the problems which my solicitor is asking and answers for those, but also spot the answers to the questions they're not asking. That I've seen as well.

Rhys Taylor:

But in a really thorny case, I mean I've had situations where I kind of locked myself away in my study for like three days reading absolutely piles and piles of papers. I say piles of papers, they're not piles anymore, they're all PDFs. But you know, sometimes in order to be able to give a piece of advice, huge amounts of documentation need to be considered before you're able to give a piece of advice. Huge amounts of documentation need to be considered before you're able to give a view. So it really depends on the size and shape of the case.

Tamsin Caine:

Okay, we're not going to talk specifically about that role today, but does your role as a recorder guide your work as a barrister, or does it go the other way?

Rhys Taylor:

around.

Rhys Taylor:

That's quite an interesting question, I think, in advocacy terms, cases are often won on the main road, on the highway, and once you're down alleyways and byways and rabbit holes, sometimes, um, you're, you're losing your tribunal, and so I think, um, there's a big picture to be told in cases and there's an art in conveying that big picture, and sometimes an amount of detail needs to be supplied in order to tell the big picture.

Rhys Taylor:

But I think, um, my, I think my observation would be that quite often, um, your, um, instructions which, of course, is what we're about, we act on, our instructions tend towards obsessing about this and that and the other, um, and and some of those things have been incredibly important to the people.

Rhys Taylor:

Um, you know, perhaps quite painful experiences or or things financially that have really goaded them, um, but might not actually, um, be part of the arc of the big picture, and and so I think there is subject to one's instructions, because if the client says, well, this is what I demand you do, then you've got to have an honest discussion with your clients about what the consequences of that might be. But I would say the difference is that there's a big picture that the court is trying to understand and you mustn't get lost in the detail. So it's almost as if I think a good barrister is kind of there with like a really posh camera and is able to kind of go wide-angled but then focus in when they need to, and there's this constant sort of judgment as to when to do a wide angle picture or when to focus in on some of the detail that makes a lot of sense.

Tamsin Caine:

I was thinking, as you were talking about, about the word that comes up a lot to me by clients and I'm sure that it comes up in your conversations as well and that word is entitled. So what am I entitled to? And that must be because we don't have an exact science, do we, in terms of calculating somebody's entitlement? Is that something that comes up a lot in your work?

Rhys Taylor:

So I will tell people, when I advise them, that if you put this in the hands of a judge, the judge at the top end of the corridor might make a slightly different decision to the judge at the other end of the corridor, slightly different decision to the judge at the the other end of the corridor. Um, you've got to think about things broadly, um, and I, and I suggest that um one uh thinks about a parish, um, in terms of an outcome, are you in the parish? And generally, um, you can sort of say, well, um, you know, judge a might be in the north of the parish, judge b might be in the south of the parish. Neither would necessarily be wrong, yeah, absolutely that.

Tamsin Caine:

That's certainly something. That something that comes up a lot. So we talked about um, fdrs, um being the largely the point at which pivotal hearing, of course, yeah, pivotal hearing, I like that. That's better than what I was just about to say. So how does how does that hearing work from your barrister's perspective? You go I know you said before you will go in advocate for the client and the judge would give an indication what, what's the next stage, because that's not necessarily the well, can I go back a step?

Rhys Taylor:

because what you would do is you would ordinarily meet your client maybe a week or a fortnight beforehand, talk through their case, understand their case, understand their instructions. They may, you know, listen to my advice and consider which battles they want to pick. And then, in the run-up to the hearing, it's very important that there is a note or a case summary which summarises, you know, in five or 10 pages, what the case is all about. Now, then some barristers think that putting a really, really detailed and long note in is the way to sort of win hearts and minds, might impress the client. But actually judges are horrendously busy and what they really like is a relatively short note which can tell that big arc of a story in a pithy and short and persuasive way. And so there will be some discussion about the content and style of that note. I will draft it up, and my solicitor and my lay client will then look at it and decide whether they're content with it. And so we've all got a hymn sheet that we're signed up to by the time the day before the hearing and that goes into the court. And so before I even walk through the door, the court already knows largely what I'm going to say and one of the arts of FDR advocacy is picking those themes that you want to emphasise.

Rhys Taylor:

It's pointless just going through all of the notes all over again. The judges read that, so you've just got to pick your key battles. I think one of my best ever days in an FDR. My notes have been gone in. I just went in and the judge sort of got to work on the other side. So while Mr Taylor says this, what do you say to that? And Mr Taylor says that, and Mr Taylor says this, and mr taylor hadn't opened his mouth if I just sat there, unusually for me, completely mute, um, but my written note had done all of our heavy lifting and that sort of under.

Tamsin Caine:

That sort of underlines how important the note can be so both sides put a note in and could yes, could read very differently, I guess. Well, they do read very differently.

Rhys Taylor:

I guess. Well, they do read very differently and bizarrely, and it's a really mundane and practical thing. One of the really key bits of advocacy is making sure that the judge has got your note, and so it's got to be delivered the day before. If it's not, the judge will not have had time to read it. If you just turn up with it on the morning, the judge might have other things in their list and won't have read it, and so just really sort of mundane point of you. Know, it's not what you do but the way that you do it, just make sure that the note is delivered on time so that the judge has had time to consider your case.

Tamsin Caine:

Yeah, absolutely. Now I can see how that would work, and so I can't imagine a situation where you were quiet in court, reese. But um, so, so we've. The judges has read the notes, got their their um points across head both sides, and and given an indication, and, and then what happens?

Rhys Taylor:

ah right, okay, yes, that was that was your question. Sorry, I so. So then the typically um, an fdr hearing will be listed for an hour or maybe 90 minutes, um, but parties will be at court for the whole day. What they will do is they will take the the judge's indication and they will go back to their respective rooms and teams and discuss the implications of that, because the judge has got no skin in the game, they've just given a neutral indication. This is how it seems to them Now, then sometimes them Now then.

Rhys Taylor:

Sometimes the dispute is very factually contentious and the judge might say well, on the one hand this, I would say this, but if the facts were found in another way, my position would be different. And so usually the lawyers will know more about the case than the judge, and so in some instances you would be saying to your client well, yes, the judge says this, but they perhaps haven't grasped this or that point. But do take into account the overall sweep of what they're saying. On other occasions, the shape of their advice isn't dependent on a factual dispute. There there's an agreed set of assets and they're being asked to say well, how long should maintenance be before? How much should maintenance be? You know what? What capital sum should the wife get in order to buy a house?

Rhys Taylor:

Those kinds of things and and and indications, um, in in those terms, um can be extremely powerful in persuading parties to settle. And then the and then the lawyers will negotiate and um, uh, and then we'll hopefully come to a settlement towards the end of the day. If there's time, an order will be drafted. If there isn't time, something called heads of agreement would be drafted. That would be provided to the judge, and then there's a procedure when the judge can say well, I'm going to treat this heads of agreement as my order, go away and draft the order, and if there's any bickering about the write up, I'll deal with that on a later occasion.

Tamsin Caine:

I've got. There's a couple of things that I want to ask you about from all that. Do you often find that it's about compromise in reaching the resolution, or is it more about persuading the other side of your argument? It's a bit of both.

Rhys Taylor:

Okay, I would say you can see all these books behind me. I've been a barrister for 27 years. I would say if I could condense all of my learning over 27 years is a bird in the hand is worth two in the bush. And actually doing a deal and getting on with your life, um is is pretty important, and so compromise and and and the willingness to step down off your high horse and find something that everybody can work with is an important part of the discussion. But then there are also important points of principle and there can be right and wrong, and there can be red lines and there can be things over which you know a client will not tread, and so, once again, we come back to the wide angle and the the tight focus. You know, sometimes you just need a deal, you need to get it over the line. Other times, um, there are very particular reasons why there will not be a concession on, uh, a key issue in the case yeah, no, that that sounds.

Tamsin Caine:

That sounds fair enough. And when you were talking about the judges indications you mentioned about it might be on a point of maintenance or it might be on a point of how much the one party should get to purchase the property, etc. Do are the indications generally focused just on one point or are they on the whole?

Rhys Taylor:

no, generally, generally, there'll be a sort of a bag of different contentions. So there'll be an argument as to whether or not, you know, this or that asset should be taken into account, um, for particular reasons. There'll be an argument over um whether or not, for instance, he or she could be earning a bit more money, and if he or she could be earning a bit more money, they'd have less of a need for maintenance. Then there'll be an argument over, um, which side of the tracks people should be living on, you know, should they be living, you know, at the posh end of town or at the cheaper end of town? And then there'll be an argument about, well, you know, particularly for older couples, how are we going to divide the pensions? And so there could be sort of five or six sort of different heads of contention that are going on in the case, and some of them will be hotter and more contentious than others. But the judge would work through most of them and would sort of say well, these are my views on these things things okay.

Tamsin Caine:

So if there are areas that are already broadly agreed, they're not necessarily going to be touched on and ripped up and thrown out. No, no, it's just about focusing on the bits, the areas of contention. So try and get the the deal done, as it were, and over the line. Yeah, yeah, that makes sense. Are there any areas of your, of your role as barrister and I'm conscious not to go, not to verge into all the many other roles, because we could be here until next week but are there any other roles that you take on as barrister that we haven't yet talked about?

Rhys Taylor:

Advocates, advisors, and I think sometimes peacemaker, we're more removed from the upset of it all. And good barristers will be trying to do the best for their client and and it is often the case that you know some some common perspective needs bringing into a situation. And so, um, you know there can be peacemaking with the client, asking them whether you know, you know the argument about, you know, the china dolls is is as important as they say it is. And then sometimes there's peacemaking with the other side and going to them and saying, well, look, you know, if you're willing to, you know, if you're willing to do this, you know we might, you know, and so it's finding compromise. So peacemaking, bizarrely, because you know one thinks of barristers as sort of more more interested in gladiatorial combat, um, and peacemaking. But you know, again, going back to the wide and the narrow lens, you know you've got to pick your moment when you go into battle and you pick your moment when you're peacemaking yeah, yeah, absolutely.

Tamsin Caine:

I've had an experience recently with a client and we really felt that the court process was going to go all the way to a final hearing and she held out absolutely no hope for reaching any sort of agreement. And I sent her an email the day after her FDR and she said we've settled, this is the settlement. I'm absolutely delighted. So, yeah, those cases and having the barristers able to reach a compromise are worth their weight in gold.

Rhys Taylor:

It's also the case that sometimes, um, the dispute is not the dispute, and so you get down to you've dealt with um, you know the capital, you've dealt with the maintenance, you've dealt with the pensions, and now we're arguing about the teapot. Um, but we're not arguing about the teapot, are we? We're arguing about who has the last word. We're arguing about the last mile. It's the last lash of the tail, um, and you know people who've done this job for a long time know that um, and and sometimes just need to help people have the perspective of. You know how important is the, is the teapot in the global scheme of things? Maybe we could buy you another teapot, or maybe you could buy another teapot. You know, sometimes, these, you know the last. You know the items in the last mile are more totemic than you know financially, material.

Tamsin Caine:

Yeah, absolutely. It's not always about having the last word, is it? It's it's quite often, as you say, getting over the line and reaching an agreement so that you can move forward with your lives, and I think, as long as you reach something that you can both live with and move forward with it, it's time to it's time to stop, you'd hope. Um, that's brilliant, rhys. Thank you so much for that and thank you for joining me today. Anything you would like to say before we, before we call a close to today.

Rhys Taylor:

I think it's just to say that, um, you know, barristers are there to. I've been talking about the advice that we give and the peacemaking that we might do or the gladiatorial combat that we might engage in. But we do always act on our clients' instructions. And I always say to my clients look, you're the master and I'm the servant and I will act on your instructions. And when we get to the fork in the road, you choose the direction, not me.

Rhys Taylor:

And so it's a funny relationship that goes on between the more experienced barrister who's traveled down this road many, many times before and knows the pitfalls and the humps in the road and the humps in the road, and a client who perhaps it's their first time going down this road, but they need to be empowered by us to be able to make good quality decisions. So I say you know, at the fork in the road you're going to make the choice, but I need to be your guide in helping you to choose. But ultimately it's the client's decision, not my decision. And so sometimes, you know, I might say to people you know, I think you know, going left at this fork is the way forward. And sometimes people say, no, thank you for your advice, but I want to go down the right fork and that's my decision and and barristers must respect that and they must act professionally in implementing those instructions.

Tamsin Caine:

That's useful to know and an interesting point. I appreciate that, rhys, thank you. Thank you so much for joining me. It's been a pleasure, as always, to talk to you, thank you so much for joining me.

Rhys Taylor:

It's been a pleasure, as always, to talk to you, pleasure.

Tamsin Caine:

Hi, and I hope you enjoyed that episode of the Smart Divorce Podcast. If you would like to get in touch, please have a look in the show notes for our details or go on to the website, wwwsmartdivorcecouk. Also, if you are listening on Apple podcasts or on Spotify and you wouldn't mind leaving us a lovely five-star review, that would be fantastic. I know that lots of our listeners are finding this is incredibly helpful in their journey through separation, divorce and dissolving a civil partnership. Also, if you would like some further support, we do have a Facebook group now. It's called Separation, divorce and Dissolution UK. Please do go on to Facebook, search up the group and we'd be delighted to have you join us. The one thing I would say is do please answer their membership questions. Okay, have a great day and take care.

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