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Mis-practice direction – how not to write a letter of instruction

It has been plain to me for a number of years that alongside the official Practice Direction on Instructing Experts

there must also be a secret set of rules to follow when constructing a letter of instruction that goes to at least half of the parties, in order to produce the monstrosities that we end up with,  but which is not otherwise available.

[Just like the secret special snooker words to Lady in Red…  “a cut as thin as a thong”]

After exhaustive digging and research, and aided by Indiana Jones, Batman the world’s greatest detective,  the Famous Five, Nicholas Cage’s character in that National Treasure film, and Chunk out of the Goonies, I have found it, and here it is.  Unselfishly, I am prepared to share it, so that we all understand how those masterful LOIs really come into being.

Now we all know…

Constructing a Letter of Instruction in Family Proceedings –

a Mis-Practice Direction

1. Make it long. If you’ve asked less than twelve questions, you are doing it wrong. If less than fifteen, you’re still a bit of a lightweight, frankly. Heck, I could do seven questions in a Letter of Instruction just asking for a DNA test, what’s wrong with you? Are you even trying?

2. Ensure that you have at least two nested questions, ideally with six or seven sub-clauses in each. Then you can confidently say that ‘well, we only added two questions’ and get fourteen different things asked

3. If there is a bush, make sure to beat around it.

4. On no account ask a straight question. If you ask a straight question (like, for example “can the parent provide this child with good enough care, now or in the next six months?” ) the expert might give a straight answer, and then where would we all be? Think of the poor mug who has to cross-examine the expert if there’s a straight question and a straight answer. The purpose of the Letter of Instruction is to obfuscate, not illuminate, and to ensure that you get a report which has something for everyone, rather than one clear conclusion.  Your role model here should be Sir Humphrey Appleby.

5. Don’t be afraid to ask the same question again, by subtly changing the words and having it two or three questions further down. If the expert answers them both the same, then you shrug and say “oh well”, but if there are two different items, well, then you have inconsistency, and have topics for cross-examination.

6. If you do encounter a bush, it is essential that you beat around it.

7. Make sure you put at least one question in that is outside the expert’s area. For example, when dealing with a psychiatrist ask them about the mother’s parenting ability or the quality of contact. If an independent social worker, ask them about post traumatic stress disorder. If they give you an answer you like, hooray – if they don’t, you can cross-examine about how they’ve strayed outside their expertise.     [A particular favourite was a draft LOI to a psychologist which contained only questions for a psychiatrist and none on topic. I actually did see this draft]

8. Ensure that the cost section is written at such length and in such impenetrable detail that even a forensic accountant married to a director of the LSC would only have a vague grasp on what is intended. On no account tell the expert the truth, that you don’t know how much they will get paid, or when, and that no amount of chasing or complaining will make the LSC stump up any cash. The cash will simply fall from a branch on the LSC money tree when it is ripe and ready to fall, and not before. You cannot shake that tree.

9. Always try to fundamentally misunderstand attachment theory – a particularly good way is to ask whether the child’s primary attachment is to an adult they don’t live with and haven’t done for over a year, or whether the parent is attached to the child.  In fact, just assume that attachment is in any way relevant to the decision the Court has to take, and you’re half way there.

10. If you have a question for the expert which is really just a rambling theory that you might potentially stick in submissions, but you can put a question mark on the end of it, put it in anyway.  Anything with a ? at the end of it must be a question, by definition. We don’t put ? at the end of long rambling assertions, do we?

11. Feel free to set out in mindbendingly tedious detail, everything that the expert is inevitably going to cover in their assessment, but spell it out for them as if they had never done an assessment before. This couples ideally with the requirement for a nested question.

12. Feel free to ignore the standard of proof that we work towards, and pepper the questions with “is it possible?” “can it be excluded that” or “can we be certain that?” .    In particular, don’t worry that something like Ehler Danloss syndrome affects only one in a hundred thousand people, if it potentially explains the injuries, then the child is bound to have it, and you must insist on the expert testing for it or ruling it out as a possibility. No matter how expensive, time-consuming or intrusive the testing, it has to be done, so that the remote possibility can be excluded.

13. Always end with “and any other matters you consider relevant and important”  because the expert would never, ever, ever tell you something earth-shatteringly important if it didn’t absolutely fall within your already sprawling list of questions.

[If anyone can lay their hands on the fake practice direction, I’m sure written by a judge, which sets out the unwritten laws that people must be following in order to produce  the court bundles that he was seeing – with stuff like “ensure that any individual document is stapled to another document unrelated to it, with a staple that will pierce the fingers of anyone who tries to remove it” , I’d be very grateful and I’ll stick a link to it here, as that was what inspired this]

Thank you to Chunk for his detective work. [Yes, that is just a gratuitous attempt to crowbar in a Goonies picture. You guys! Hey, you guys!]