Tag Archives: lawyers

A friend in need

Everything changes. Mountains erode, coastlines crumble and even Bruce Forsyth eventually retires. But if you think the pace of change is a little too quick there is still one place that remains constant – head on over to the comments section of the Law Gazette. You can be sure, whatever is going on elsewhere, there you will find lawyers unhappy about something, and normally it’s something said by the Legal Services Consumer Panel.

Predictably, the Panel’s latest report calling for a ‘culture change’ in attitudes towards McKenzie friends went down like a lead balloon with lawyers. McKenzie friends, it said, are a ‘legitimate feature of the modern legal market’ and increase access to justice. Much of the legal profession, it seems, does not agree.

Once upon a time McKenzie Friends were just selfless volunteers who, out of the goodness of their hearts, gave up their own time to help litigants in person who can’t, or don’t want to, use a lawyer, by providing moral support, taking notes, offering advice and helping prepare for court. Now, shockingly, they are increasingly starting to charge.

Lawyer outrage is understandable. They spend quite a lot of time and money qualifying and it must be pretty galling to have studied for years and struggled to get a training contract only to see a lot of unqualified so-and-sos come along and undercut you. And because they aren’t regulated they could be doing heaven knows what.

Except in most cases they aren’t. What they are doing is providing valuable support for people who quite conceivably would otherwise have no access to justice. With legal aid withdrawn from all but the most acute cases, the number of litigants in person, those attending court without a lawyer, is increasingly dramatically.

On the face of it, I’m a fairly knowledgeable, confident and determined person, but I wouldn’t want to represent myself. If someone who’d been through the process before offered me a helping hand for a reasonably modest fee, I’d probably take it. And let’s be honest, the fact s/he isn’t a lawyer is probably a bonus.

It is perfectly reasonable to expect that justice can still be served without legal representation. Indeed it is vital this is the case, particularly when the government seems to be determined to remove lawyers as much as possible from the process of law. This may seem a bit bonkers, but it’s what we’ve got to work with.

Obviously there are risks in unqualified, unregulated and uninsured people supporting litigants in person, but arguably these are outweighed by the alternative, which is people deciding not to go to court at all, or turning up without the slightest clue of what they are doing.

Amazingly, most consumers, even those unable to afford a lawyer, are not stupid and are quite capable of understanding the limits of support that can be offered by a McKenzie friend. And of course, advice is not confined to the unregulated – lawyers are quite capable of not living up to their own professional standards. What consumers need is not a closed shop, but clear, reliable and easily accessible information about their options.

McKenzie friends themselves have acted on the Panel’s recommendation and plan to set up their own trade association to represent those non-lawyer advisers who charge fees.  I would suggest they get on with it, because the vast array of McKenzie friend websites already out there risk confusing consumers.  I would also like to suggest they stop using hourly rates and come up with some sort of fixed-fee system, otherwise they are in danger of creating the same cost uncertainty that has annoyed consumers of legal services for years.

I do wish lawyers would stop being so afraid of change and innovation. Granted, a lot of the change in the legal market at the moment is not of a particularly positive variety, but getting hot under the collar about something that might mitigate at least some of its worst effects is counterproductive. And it will happen anyway.

“The only way to make sense out of change is to plunge into it, move with it, and join the dance” Alan Watts

The secret of happiness

Want to know the secret of happiness? Want to know how to solve your financial problems, ensure the sun is always shining and have neighbours who smile all the time?  It’s surprisingly easy.  Just get yourself an injury in an accident that isn’t your fault.  Any sort will do, although obviously the less serious the better because you wouldn’t want to be in any real pain or anything.

Maybe get knocked off a ladder (not a high one mind) or have a bit of a bash with another car that wasn’t looking at a junction (not a fast or busy one).  It happens a lot apparently, and it not only makes you very happy, you get free money.  I saw it in an advert, so it must be true.

Or not.  A few years ago, when I was working for a national law firm that, naturally, earned a lot of its income from personal injury work, there wasn’t a week went by without somebody on TV or radio mocking claimant firm adverts.

They were right to do so, although legal marketing experts told me that making ads trying to appeal to notions of justice and fairness didn’t have the same conversion rates as constantly ramming cash inducements or ‘no win no fee’ messages down our throats.  More fool us.

There’s been less of it about lately, but then last week Liverpool-based firm Hampson Hughes launched its new ad campaign, and it was just begging to be ridiculed.  On Thursday, Charlie Brooker’s Weekly Wipe on BBC1 duly obliged.  You can see why for yourself: lots of absurdly happy people singing and dancing about with some indeterminate blue and yellow creatures seemingly unconcerned that they had not long ago suffered some sort of debilitating injury.

Have these people learned nothing from the ‘compensation culture’ scandal?  As reported on Legal Futures, the firm argues that up-front payments are often needed because claims take time to settle, leaving people at a financial disadvantage.  They insist only those with genuine injuries can benefit and not all qualify, but it’s no good refining the message on a website, the damage is done by the advert:  ‘Two thousand pounds up front?  Cool!’

This nauseating commercial comes hot on the heels of a similarly jaunty affair from First4lawyers in which tennis player Andrew Castle (an expert in personal injury claims, who knew?) and another crowd of terribly happy people claim ‘this is what justice feels like’ while jollying along to ‘I can’t fight this feeling’.  Getting an injury must be a lot of fun.

If it were only my sensibilities being harmed by these ads I wouldn’t be complaining.  I am quite happy to be upset, offended, wrong or whatever whenever.  And I don’t want to deprive comedians of a rich seam of mickey-taking possibilities, but surely this sort of ‘money for nothing’ promotion is just how claimant lawyers got themselves into trouble in the first place?

Unfortunately, it’s not just the reputation of lawyers that is damaged by the trashing of the claimant industry by insurers, politicians and the press. Changes to the system may end up making it harder for those genuinely injured to make a claim, and those with anything less than arms and legs hanging off after an accident may be put off being tarred with the ‘money for nothing’ brush.

Believe it or not, personal injury lawyers do an important job and deserve to be held in slightly higher regard than they are.  Quite a few of them don’t just process simple, uncomplicated, claims like whiplash suffered in a rear-end shunt (although apparently this never actually happens or at least isn’t at all painful).  Often they are securing vital compensation for people who have suffered painful and debilitating or catastrophic injuries caused by accidents or by clinical negligence.  Not so happy and jolly now.

It’s quite possible that First4lawyers and Hampson Hughes don’t give two figs about the reputation of personal injury lawyers as a whole, as long as they keep the work coming in.  More worryingly, in times of austerity, it will be difficult to encourage consumers, even the most sophisticated, to choose the best lawyer for them, and not let their decision be skewed by the offer of a cash incentive.

Any suggestion of a reinvigorated ‘have a go’ culture won’t do any of us any favours, except the tabloid papers missing their daily outrage about £300,000 for slipping on a grape or £10,000 for falling off a broken chair.  The injuries sustained are not important, someone nearly became a half millionaire after slipping on a grape!!!  Two grand up front?  Cool, I’ll have some of that. 

Valuable research, or statement of the bleeding obvious?

Last week I read about lots of ‘new’ research that has discovered consumers are mystified by the legal world and are still put off lawyers by jargon, hidden costs, antiquated opening hours and poor customer service.  Well knock me down with a feather.

The world is full of useless research.  I am constantly amazed and slightly depressed at how some of our, apparently, best brains are preoccupied by why woodpeckers don’t get headaches or what makes a cookie crumble.  Research has also revealed that teenagers who play computer games read less and do less homework, we all feel better at the weekend and, amazingly, performance-enhancing drugs enhance performance.  Not so much research, more statement of the bleeding obvious.

Still, it is the job of academics to conduct research and I guess not all of them can cure cancer or explain how we can improve social mobility.  There is also always the chance that in doing something seemingly pointless some bright spark will make an important discovery.  On the other hand, market research is quite often written off as worthless, and it quite often is, not least because it is rarely about listening to the customer but as a justification for doing something an organisation was going to do anyway.   And you don’t have to be a master of the dark arts of PR to know most statistics, if not ‘damn lies’, are certainly selective truths.

I say this as one who has, and sometimes still does, throw research statistics around with gay abandon.  There is nothing more comforting than being able to validate your opinion with a few choice, carefully presented and meticulously gathered figures; no self-discerning press release should be without them.  But let’s not get carried away with their significance.  As the saying goes, statistics are used much like a drunk uses a lamppost: for support, not illumination.

None of this is to suggest that robust research, properly analysed and used genuinely to inform policy, isn’t valuable.  In an area like the law, where some people will inevitably have to use a lawyer even if they don’t want to, it has been an important tool in attempting to persuade the profession that things have to change.  Some, thank goodness, have even taken notice, recognising its in their own interest now other, more customer-focused businesses, can also deliver legal services.

But honestly, did the Solicitors Regulation Authority (SRA) really need 18 months to find out what people want from their lawyer?  It doesn’t take a genius, or even a market-research professional, to work out that ‘often this amounts to getting the right information, in the right format, at the right time’.

I am sure, at least I hope I am sure, that the SRA found out some slightly more nuanced information, particularly from disadvantaged or hard-to-reach groups of consumers.  All the same, 18 months spent talking to people is 18 months not actually doing very much and the SRA’s had about five years to find out what customers want, although it could have just asked the Legal Services Consumer Panel.

And what is the outcome of all this ‘research’?  A website to help consumers know what they need to know and when they need to know it.  I am sure it will be a very good website, I am particularly looking forward to the ‘surveys, polls and quizzes’ it promises, but websites only go so far, and it won’t solve consumers’ confusion about legal services unless the root cause is tackled more robustly, ie the propensity of lawyers to confuse their clients in the first place.

A further indication of how far the SRA may still have to go were concerns expressed by board members that the website should not become a comparison site, a sort of TripAdvisor for legal services.  This is exactly what it should be so that consumers cannot only get the information they need about lawyers but find a suitable one.  Rather than preventing user comments and feedback on its own site, the SRA should be worried about the simplistic comparison sites that are inevitably springing up all over the web.  Social media and the Internet are fundamentally changing consumer behaviour and expectations and it simply isn’t an option to carry on as you were.

As well as changing the way consumers research and purchase products and services, social media is having a radical impact on traditional market research.  As consumers find there are easier, more immediate and more responsive ways to talk to organisations they will be less willing to take part in structured surveys.

Arguably, the sort of feedback and data gleaned this way will also be more valuable as it will be ‘in real time’ rather than ‘after the event’ when individuals may rationalise previous actions.  In any case, behavioural experts now suggest there is no reliable link between attitudes and behaviours, which somewhat invalidates most traditional market research.  If the SRA really wants to know what consumers think it will have to embrace genuine interaction.

To be fair, the regulator wasn’t the only organisation trumpeting research of dubious value last week.  QualitySolicitors’ own research found that while lawyers ‘tend to be excellent’ at the technical bits of their job they often put people off because of their expense, jargon and lengthy response times.  Strangely their response is to launch a new advertising campaign persuading the public to ‘love their lawyer’.  Well, you can try anything once.

The Partnership Problem

I thought I would re-post this after reading “The Last Days of Big Law” in New Republic

It has long been apparent to anyone with an ounce of business sense that, by and large, partnerships are not the best way to run a company.  There are, naturally, exceptions and I am not going to take issue with the profitability of the ‘magic circle’ firms that would be eligible for inclusion in the FTSE100 were they to have publicly traded shares.  They have all said, however, they would not seek to float.  There are probably many reasons for this, most of which I couldn’t hope to understand.  But I bet one of them is because the partners of those firms rather like being partners in those firms.

The disappointing level of social mobility in the legal sector, particularly acute I would imagine in the largest firms, isn’t entirely down to the bias towards recruiting trainees who attended private schools and who could get work experience via their parents.  No, I am quite sure that the partnership model itself is the source for many of the legal sector’s woes.

When you think about it, it’s a pretty crazy idea really.  For a start, partnerships hardly encourage decisiveness.  Having worked in a law firm, I can attest that getting anything done was a bit like herding cats (and I make no apologies for linking to this YouTube video again because it makes me laugh).  Trying to get everyone to agree is a slow and painful process for which you don’t get much in the way of thanks.  Not really the environment for making cutting edge, dynamic business decisions.

Equally as problematic is the route to becoming a partner.  To reach these hallowed heights, young lawyers have to toil away, often for long hours, somehow meeting very high standards while doing mostly mundane tasks for however long it takes until they are given the nod.  It’s hardly surprising then that the average age of an equity partner (the ‘owners’ of a law firm) is now 60.  With one eye on securing their safe passage to retirement, these people are, naturally risk averse, and, if my experience is anything to go by, some of the most conservative and change-resistant people on the planet.

By promising jam tomorrow, law firms attempt to elicit unwavering devotion from their junior lawyers.  Aside from being, in many cases, an empty promise (as the Red Queens says: ‘The rule is, jam tomorrow and jam yesterday, but never jam today’) this is no way to promote the innovation and entrepreneurship that enables a company to leapfrog its competitors.  The short termism partnership encourages also gives rise to the ever-present danger, as Labour politician Tony Benn put it, that ‘some of the jam we thought was for tomorrow, we’ve already eaten’.

While I am yet to work in any organisation, legal or otherwise, that doesn’t struggle with a silo mentality at least some of the time, I am quite convinced that partnership exacerbates these tendencies.  Lawyers feel compelled to protect their territories and keep their contacts to themselves; knowledge is, after all, power.  And so you can end up with the absurd situation of grown, mostly men, bickering over issues like children.

The model is just as useless when it comes to ensuring an equal gender balance at the top of the profession.  While women make up 60% of the trainee intake at the big city law firms only about 18% of their partners are female.  Given the track record of the city more generally in getting women into the boardroom, it may be unfair to lay this charge entirely at the partnership door.  However, the collegiate nature of running a business is a rather effective way of excluding women.

Social events geared towards traditionally male pastimes, like golf, are a very subtle, even unconscious, way of demoralising any woman who might harbour ambitions of partnership.  The firm I worked for did not, of course, exclude women deliberately, but every corporate jolly, sorry networking opportunity, that came up, bar awards dinners, involved football, cricket or golf.  I know plenty of women who might enjoy these activities, but not necessarily if they have to go along with a lot of testosterone-charged males.

The problem is that firms can, and do, talk the talk when it comes to promoting diversity but many at the top still secretly believe, even if they won’t admit it, that to get the rewards you have to put the hours in and play the game.  Not to do so amounts to ‘career suicide’.  Which probably explains why efforts to grow the numbers of female equity partners at the UK’s largest firms are failing.

Just as damning, as I have written before, venerating partnership above all else also consigns many in the firm to a ‘citizenship’ that is distinctly second class.  Whatever the rights and wrongs of such a system in the past, it is patently a stupid way to run a modern company.  I can’t see any circumstance in which effectively disenfranchising whole swathes of your staff makes business sense.

And law firms need those other people.  While there are clearly some lawyers who have the skills to become business leaders, it is a fallacy of the partnership model that just because you’re a good lawyer you can lead a law firm.  Those that think they can prove me wrong, well you’ve been doing it in the good times, that was easy.  Surviving in a harsh economic climate is going to require real management and leadership talent.

So thank god the legal profession, and with it the partnership model, is being well and truly shaken up.  Already law firms at the high street end of the market are beginning the feel the effects.  What is extraordinary, given the overwhelming unsuitability of the partnership model for anything other than self-preservation, is that the top city firms still seem to think the shake up has nothing to do with them.  They should remember no firm is too big to fail.

Originally posted on the Quality Solicitors blog in February 2012

Stop playing roulette with legal aid!

Unless you are sitting at the roulette wheel, leaving things to chance is a risky strategy.  It can be risky even then, but there isn’t much in the way of an alternative.  Even people who think of themselves as impulsive or go-with-the-flow types probably don’t leave everything to chance and have a pension, a career plan, or home contents insurance.  And yet, leaving it to chance does seem to have become the government’s policy of choice when it comes to legal aid.

You could, with some reason, argue this is its policy of choice when it comes to quite a few other areas as well, but at least media and public scrutiny has forced ministers to attempt to defend their stance on, for example, benefit cuts.  Little attention, however, has focused on the chaos about to be unleashed in legal aid when funding cuts kick in on 1 April.

Astonishingly, given the significant areas of the law that will no longer be eligible for legal aid, there has been barely a whimper outside of the rarefied debates in the House of Lords or the noble yet niche efforts of various commentators in the legal press.

The Law Society’s Sound off for Justice campaign fell silent once the proposed cuts were signed into law.  There’s been no Panorama investigating whether our already stretched courts will be able to cope with thousands more people having to represent themselves, no Dispatches about what happens when people struggling with benefit problems or houses in intolerable states of disrepair can’t get legal help, and no Daily Mail campaign to force a government u turn.

The last one, I admit, is fairly unlikely.  But it appears it is not just the government prepared to leave the outcome of this policy to chance.  The chance, that is, that the legal profession itself will pick up the slack because, after all, lawyers earn a fortune and should be forced to give some of it back, for example by paying a levy on their practising certificate to fund law centres.

It is true that while there is no direct equivalent for lawyers of the Hippocratic Oath there is a commitment to uphold the rule of law, part of which must surely be ensuring everyone is able to have access to the law as and when they need it.  It is, nonetheless, quite a leap from this to requiring the legal profession to pay what would effectively be a lawyer tax.

Lawyers aren’t terribly popular, but this seems a bit harsh.  Fat cat surgeons aren’t expected to pay for hip replacements the NHS can’t afford; rich, greedy bankers aren’t expected to fund credit unions; expenses-laden MPs aren’t expected to pay for the upkeep of Parliament.  You get my drift.

Equally unfeasible is trying to transform pro bono, free legal advice given by lawyers, into a compulsory add-on to the day job.  There are all sorts of reasons why this is a bad idea, not least that it is unreasonable to expect a mergers and acquisitions lawyer by day to turn seamlessly into a social welfare lawyer by night.

That’s not to say city lawyers and law students don’t have a valuable contribution to make or that current arrangements couldn’t be more strategic.  I’d go so far as to say they probably should have to get down and dirty with the real people at some point in their career, so I like the requirement recently introduced in New York for all law students to perform 50 hours of unpaid work of a condition of practicing in the state.

But making sure all lawyers understand the sharp end of their profession is a far cry from adopting it as your policy for maintaining the rule of law, which is what the government seems to be doing with its ‘community legal companions’, law students to advise people preparing to appear in court without a lawyer.

What is most shocking about this, if not unfortunately at all surprising, is that we are quite happy to fob off those with some of the most fundamental and complicated legal needs on to the well meaning but unqualified.

We may not have a national legal service to parallel the national health service (and we may not have that for much longer either) but we will all be the poorer if justice is dependant on ability to pay.  What’s just as depressing is that the government seems effectively to have abdicated all responsibility for developing an alternative.

And there must be alternatives.  It cannot be that we are happy to consign tens of thousands of people to a justice black hole where they have no means of enforcing their rights.  Equally, a piecemeal approach, propping up one law centre here, throwing recurrent lifelines to another one there, is neither desirable nor sustainable.

Some time ago the justice minister Lord McNally told a Legal Aid Practitioners Group conference that ‘it is time to move on from LASPO’ (the Legal Aid, Sentencing and Punishment of Offenders Act 2012).  In one respect he’s right, it is certainly time to move on from arguing that the cuts are unjust and will be terribly damaging to many of the poorest and most disadvantaged.

In another sense, we can’t possibly move on from LASPO until we have found a coherent policy alternative to legal aid, one that government, society and the legal profession will accept.  This means rethinking what we mean by access to justice and building a system that works for individuals rather than just the lawyers that staff it.

Just hoping the ball lands on black is not the answer.

To infinity and beyond: Google law prepares for blast off

Several years ago, when I was campaigning to bring about the Legal Services Act, some bright spark at Which? suggested to me that it wasn’t Tesco law that would bring about a revolution in legal services, but Google Law.  I wouldn’t say I dismissed his prediction out of hand, but at the time it was quite a big leap to see how you could buy legal services in Tesco, never mind from Google.  Well, last week this colleague’s prediction turned out to be right as the Google-backed Rocket Lawyer announced its intention to launch in the UK in 2012.  It’s a measure of how far we’ve come that the news caused merely a ripple, rather than the tsunami we would have surely had in the past.

It is a strange coincidence that this was the same week in which the Law Society launched its annual ‘solicitors are great’ campaign.  As you can imagine, I’m a bit of a sceptic when it comes to this sort of thing, but to be fair, the Society’s efforts have improved immeasurably since the toe-curling ‘my hero, my solicitor’ of a few year’s back.  This year’s effort, a slightly more modest call to ‘choose quality advice’, will be seen, the Society says, more than 450 million times, which is about eight times for every man, woman and child in the country (although as lots are too young to read that’s even more times for the rest of us).  I have no idea how they work this out, but it sounds pretty impressive.

I also have no idea if these annual forays into mainstream advertising are beneficial to high-street law firms.  The Society claims that last year’s campaign generated 85,000 click-throughs to their website and a 40% increase in searches on its ‘Find a Solicitor’ database.  On the face of it, this is quite a result, but I’ve had a look at Find a Solicitor and it’s little better than the Yellow Pages (if you’re old enough to know what that is..).  Without customer feedback or complaints information, getting a long list of solicitors is next to useless (for more on my views about this, see my blog about the Solicitors from Hell website here).

Which is where Rocket Lawyer comes in. I’ve had a look at their website and even registered on it (I pretended to live in Arizona so I could imagine I was sitting by the pool in the sun rather than snuggled up in my loft room as the rain beats down on the skylights).  Generally I don’t like making such an overt plug, but I love it.

It’s exactly what an online legal service should be – it’s clear and easy to navigate, it has bucket-loads of information and, on the whole, seems to be written in comprehensible English (which is quite a feat given, at the moment, it’s just an American site).  There’s even a nifty little section with tips on working with a lawyer (I would make this available as a checklist to take to the solicitor’s office – that would put the wind up them).

I am particularly excited (yes, genuinely) by the ‘legal health check’ as this taps into what, à la Richard Susskind, I have been banging on about for ages:  the latent demand for legal services.  As reported on Legal Futures last week, founder Charley Moore argued that services such as Rocket Lawyer expand the market for legal services, rather than compete with lawyers, by making them more accessible, citing as an example that, as in the UK, less than half Americans have a will.

This latent demand is something traditional lawyers, on the whole, have failed to address.  This is partly because individuals might not think they have a legal problem:   research published last year by the Legal Services Research Centre found such issues included faulty goods and services, noisy neighbours, benefits, children’s education and homelessness.   But it is also because your average high-street solicitor doesn’t take a ‘holistic’ approach to the law.

This is where Rocket Lawyer really comes into its own.  When you register, it asks about your lifestyle – work, home and family – and makes recommendations for legal services based on your answers.  Alternative business structures, and the multi-disciplinary partnerships they will enable, are all about this ‘lifestyle’ approach, enabling consumers to purchase packages of legal services at certain points in their life – getting married, buying a house, having children, retiring etc.  This not only makes more sense for the consumer but taps into that lucrative ‘latent demand’. This is surely how legal services should be delivered in future, whether online or by more traditional means

So back to that advertising campaign.  The problem is that it fails to acknowledge any of these developments.  It may well encourage someone already looking for a solicitor to go to the Society’s website and use Find a Solicitor.  But it is still harping back to the ‘good old days’, when solicitors were learned men in stripy suits and bowler hats sitting behind mounds of dusty books.  What we are approaching now is beyond Tesco law and buying legal services like a tin of beans.  Whether the Law Society and the firms it represents like it or not, we are approaching the age of Google Law and nothing will ever be the same again.