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Thursday, 12 April 2018

The Secret Barrister - Get it, read it, share it...NOW

It is certainly not unheard of for a book written by a lawyer to make headlines. John Grisham comes to mind and Rumpole of the Bailey gave me many a happy hour as a student.  But is a rare thing for a book about the practice of law to rise up to Number 3 in The Times charts – especially one written by an anonymous barrister. Stories of the Law – and How It’s Broken by The Secret Barrister has managed to do just that.

For the purpose of this review I will call the author SB whom, I will also assume is a she for no particular reason!

What she has written is a devastating critique of our criminal justice system. It is based on her experience as a working criminal barrister over many years. This is certainly the voice of someone who deserves to be heard. It is also very readable. The book is interesting, funny and terrifying at the same time.

Time and space don’t permit an analysis of every detail. I intend to focus on three key issues that caused me particular alarm as I read it.

The first of these took me back many years to my early days as a young and terrified criminal advocate who was destined to be a civil litigator! This is the wonderful and fascinating world of the Magistrates Court, where the majority of criminal cases start and end. It is clear from SB that little has changed over those years. Bail applications are routinely refused. Defendants are routinely convicted. All of this is done by willing volunteers recruited via a system which ‘prizes whether you ran a tombola over your capacity for legal analysis.’ There are many examples of the eccentricity of the courts including one enthusiastic magistrate criticising cross examining counsel for asking a leading question – which is of course the whole point of cross examination. SB finds no justification for this – ‘sausage factory paradigm of justice’, other than that it is ‘cheap,  is the way we’ve always done it and no one who votes knows or cares.’ There are those who support the idea of local lay justices. But no one reading this section of the book can avoid a sense of alarm that the liberty of citizens is left in the hands of these courts. That sense of alarm is unrelenting.

The next issue that shocked me was the appalling treatment of victims. Politicians like to talk about victims of crime. The tabloids love it. There is a Victims’ code, a Victims’ minister, a Victims’ Commissioner, a Victims’ Task Force. But ultimately, no one really gives a shit. They are routinely excluded from the entire process. Cases are listed for floating trials with no hope of actually starting. But the victim is led to believe that this will be their day in court. Many months can go by before a case is relisted. Two thirds of Crown Court Trials do not go ahead. Who knew? The victims certainly didn’t. In one shocking case a victim of serious domestic abuse sees the prosecution of her former partner collapse because a seriously under-resourced CPS failed to get its act together. According to one survey, only 55% of victims would be willing to go through the process again. All of this is done under the tagline – Putting the Victims First.

Thirdly SB explains the iniquitous ‘Innocence Tax’.  ‘You can be refused legal aid and forced to pay privately. You can be found not guilty of any criminal offence. And the life savings you have exhausted in the process of defending yourself will not be refunded.’ In what civilised society is this acceptable?

There is far more in the book as she takes us through a nightmarish procession of wrongful convictions, wrongly abandoned prosecutions, disillusioned victims, a desperately underfunded CPS and woefully underpaid legal aid lawyers.

I would encourage all lawyers to read the book. Unless you are doing this work day in day out you do not really have any idea. I knew there was a big problem but did not fully appreciate just how bad it was. All MPs have been sent a copy. They should read it. They will not be the same again if they do. Anyone with a concern about how our country treats those accused of and the victims of crime (in other words all of us!) should read this book now! Not everyone will agree with it all. But no one can disagree that the law is broken and urgent action is needed.

Thursday, 22 March 2018

Another career lost - seeing the wood for the trees

I have lost count of the number of posts that I have written which concern solicitors who have seen their careers brought to an end through misguided efforts to cover up a mistake. Today’s case is unusual because it involves an experienced solicitor who might have been expected to know better. Michael Maoileoin had simply recorded the wrong date for a court hearing. He had diarised the 14th and not the 4th August. Who hasn’t done that? Rather than admit what had happened he filed a statement with the court asserting that a document had been filed in error. The truth eventually came out – it always does. The unfortunate Mr Maoileoin has been struck off at just 50.

His explanation to the Solicitors’ Disciplinary Tribunal was that he had been under stress at the time. The SRA told the Tribunal that stress and pressure were occupational hazards.

Harsh as it sounds, that must be right. Lying to the court is only ever going to end badly. I have said this over and over again – an early acknowledgment of a mistake can save a lot of worry and in some cases can save a career. It is so sad that a professional person can get into such a state that rational thinking goes out of the window.

So how do we manage the pressure?

Here are five tips from a blog that I posted a long time ago on how to practice law and sleep at night. 
It is not a comprehensive list but might be helpful –

1.     In the famous words of Michael Jackson - You are not alone. Find someone that you can talk to – it is so easy to be isolated in your little cell. Surrounded by files, emails, deadlines, telephone messages, meetings. To get into that mindset that says ‘I have no time to speak to anyone’. You have. And if you haven’t then make it. 20 mins speaking to someone will get you hours of payback in avoiding sleepless nights. It is a truth universally acknowledged that a problem is never anywhere near as bad when you talk to someone about it. Especially someone who has been there, which if we are honest is all of us! Speak to someone. Right away. Turn your computer off and go and do it now.
2.     Be generous in giving files away. That file that you are scared to look at. The one that has been festering by the side of your desk so long that even the spiders won’t go near it. Give it to someone. It won’t go away on its own. If you can’t look at it, find someone who can. Many solicitors have a file swapping arrangement. I’ll give you mine; you give me yours. Don’t hog matters to protect your bills. You can be far more productive by liberating yourself. Don’t be scared of being criticised. You won’t be. You are more likely to be told – ‘Leave it with me and while you’re there can you look at this one of mine.’  
3.     See the wood for the trees. It is never as bad as you think it is at 3.00am. The world will not end. I’ve been a lawyer since 1st April 1980. I have had more 3.00am moments than I like to admit – especially in the early days. Guess what? I’m still here. I’m still alive. I have got to an age where I can say. ‘Phew oblivion never happened.’ It was never going to and never will.
4.     If you need to – confess. If you think the worst has happened – you've missed a deadline and can’t think of a way out. Then tell someone. Today’s is just the next in line of those nightmare cases where lawyers have tried to cover up and been struck off because they were scared to own up. No one was ever struck off for admitting a mistake. Partners, supervisors, insurers will never bite your head off for coming clean. And if they do they shouldn’t be in the job. It also means that it is no longer just your problem. Get it out there and do it as soon as possible. The consequences are less scary than you think and much less stressful than waking up at night or even jeopardising your hard earned career.
5.     Get a life. Don’t get sucked into that bubble where your legal world becomes all consuming. Being a lawyer is what you do. It is not who you are. See your work as part of your life but not everything. Develop interests and friends outside the pressure cooker. I support Everton. That can very stressful and cause sleepless nights. But it is something different. I love music and photography. I also waste far too much time on social media!

Don’t ever be silent or isolated. Speak to me if you have no-one else!

Monday, 12 March 2018

LASPO Review and other lessons in missing the point

In April 2013 the Government introduced the legislation which we all know as LASPO. So dramatic were the changes, that two phrases in common usage are now Pre-LASPO and Post-LASPO. As far as Access to Justice is concerned the world was never the same again.

There was fierce opposition to the ‘reforms’ almost all of which fell on stony ground. The Government promised a review after 5 years. So we have all been on the edge of seats waiting for April 2018 to arrive. Sadly, the review is not happening any time soon. We were told that it could be  done by the summer but this is now described as ambitious –

The Beatles once sang – ‘I’ve got no car and its breaking my heart, but I’ve found a driver and that’s a start’. Similarly, we have no review and its breaking our hearts. But we do have Post Implementation Review Evidence Gathering Exercise Terms of Reference – and that’s a start!

This is the first of a series of posts looking at this document and how those of us who are concerned about justice can most effectively respond.

The Terms of Reference remind us of the objectives for the ‘reforms’ published in 2010, the first of which was –

To discourage unnecessary and adversarial litigation at public expense

Looking at that statement eight years on it is remarkable that it managed to miss the point by such a huge margin. The most effective role played by Legal Aid was not the funding of litigation, but avoiding litigation in the first place. Let’s look at Housing Advice. Most people believe that all Legal Aid has been abolished. It is available for those who are at risk of losing their home, although this is not widely publicised. Even where legal aid is available there has been a relentless pressure on providers leading to legal aid deserts, according to The Law Society –

Many housing problems can be sorted if addressed early. Experienced lawyers, and other advice agencies, can contact landlords and local authorities, provide debt advice and in many cases resolve the problem before it gets out of hand. This is particularly important where cuts to legal aid have been imposed alongside changes to benefit entitlement. The right to legal aid is now so convoluted that you cannot get legal advice for help over rent or mortgage arrears. But you can get legal aid once there are possession proceedings.

Effective early advice is less expensive than representation at court. Is there a more effective way to - To discourage unnecessary and adversarial litigation at public expense?

If the government remains serious about this objective then it needs acknowledge that it is better for all if problems are headed off at the pass before litigation become inevitable.

A former justice minister and QC, Lord Faulks, once observed that litigation was – ‘very much an optional activity’. Sadly, fighting for your home is not the same as collecting stamps or birdwatching. But stressful and expensive litigation can often be avoided if people can get access to prompt professional advice.

This should be a primary objective of the review whenever it happens….

Tuesday, 6 March 2018

Personal injury Work - there is another world out there

A leading player in the world of Personal Injury finance has predicted that within a few years there be only be about a dozen firms specialising in this work.  The rest will, presumably, ride into the sunset or retrain in corporate finance...

This is the prediction of Steve Dinn of Doorway Capital which has recently hit the news with their investment in Simpson Millar. I do see his point. The introduction of the so called ‘reforms' to the PI sector in 2019 will present a major challenge to many. I would certainly agree that the market will look very different in a few years time. There will be a reduction in the number of major providers many of whom have found themselves in difficulties. But there is more to the world of PI then these monoliths. It would easy to believe that these firms are the only providers of PI work.

Back in December I predicted that there was likely to be a re-grouping in the sector driven by a growth in the number of smaller, niche providers –

I have worked with a number of firms – more than 12 (!),  which are realistic about the challenges ahead but have no intention of leaving the marketplace. Big might be beautiful but it also expensive and often cumbersome. I predicted in December that we will see smaller, trimmed down units with lower overheads which will adapt to the changes and grow. This will happen alongside the continuing development of social Media Marketing and remote working. We might even see a return to the old idea  local solicitors.

There will be those who do not adapt and could well fall by the way. But to talk of wholesale failures and exits is unrealistic. There is a whole world of small, tightly managed firms which will continue, albeit with tighter belts and lower expectations!

I have no doubt that companies such as Doorway are very much the experts in the high end world of legal services. But there is another world out there. With a lot of planning and willingness to change, these smaller providers will still be around for years to come.

Friday, 2 February 2018

Medical Negligence - the latest attack on victims' rights

It seems that, every few months, the NHS and other medical bodies launch an attack on the rights of victims of medical negligence. Today, we hear that the NHS Federation has written to the latest Justice Secretary, David Gauke in order to try and reduce the levels of compensation to which victims are entitled.

The letter contains the remarkable statement –

"We fully accept that there must be reasonable compensation for patients harmed through clinical negligence, but this needs to be balanced against society's ability to pay.

So on the one hand, there is an acknowledgment that compensation must be reasonable and on the other hand a call for such payments to be reduced in line with government spending priorities. Once again we see the fingers pointed at victims, as if it is somehow their fault that payments for negligence continue to rise. This has been a developing pattern over the last few months.

In June 2017 the Medical Protection Society which represents many GPs called for a limit on the amount of loss of earnings that a victim can recover. They argued that such awards should not be calculated on the basis of real losses but a national average. This, of course, completely undermines the purpose of compensation., which is to put the victim back in the position they would have been in, but for the negligence. The victim’s liabilities will not be reduced in the same way. So a teacher with a mortgage who never works again recovers less than they were earning. Their mortgage payments will not be dropped. So they are at risk of losing their house through no fault of their own.

The same goes for damages for care. These can lead to an awards that looks like a lottery win. I make no excuse for re-posting a blog that I did in 2015 which demonstrated how one victim, on the basis of the support that he had received following a successful claim, had published his first book of poetry –

That is the heart of the matter. Victims who are injured through medical blunders are entitled, in any rational and caring society, to be compensated in full. I am not the first to say that the best way to reduce claims is to have an NHS free from the pressures that go with massive under-funding.

Focussing on reducing incidents will not only save public money, it will also mean that victims will not have to resort to stressful litigation to secure justice. It is still the case that many cases are fought by the medical profession to the very last minute before liability is admitted. Such a war of attrition damages everybody. I would certainly support any moves to reduce the cost of pursuing claims, but this must never be at the cost of undermining justice.

Wednesday, 10 January 2018

More Legal Careers on the line - who is really to blame?

We are less than two weeks into a new year, and we have already had reports of young lawyers getting into major difficulties. Both are reported in Legal Futures  . The first follows a familiar pattern. The solicitor in question had failed to obtain adequate After the Event Insurance. This meant that, when a matter was discontinued, the client or the firm would have been responsible for the other side’s costs. She tried to cover up the error by created forged insurance schedules in the hope that the insurers would not ask any questions. She then fabricated attendance notes to try and support the cover up.

It is no great surprise then that she has been struck off the roll for dishonesty.

This is becoming alarmingly repetitive. Yet again, a career is brought to a tragic end because concealment seems preferable to honesty. I am beginning to sound like a broken record but the message for solicitors is clear – not only is honesty the better option, it is the only option. The discomfort of a confession is far less painful than the end of your career.

But the sheer number of such cases does raise an equally disturbing issue. Why are these lawyers so afraid to admit a mistake? Is there such a culture of fear across the legal profession?

This is partly demonstrated in the second report.

Another young lawyer was found to have lied to a client and her employer about the progress of a matter. The Solicitors Disciplinary Tribunal found that one cause of her conduct was her firm’s attitude towards billing targets. She was a clinical negligence lawyer who acted for victims.  Those cases can be complex, drawn out and heavily dependent on expert evidence. The solicitor was under heavy pressure from the firm to meet a billing target. She had received a letter from the firm requiring her to record 137 hours in 19 days to make a supposed deficit. The letter went on –

“Please therefore by return of email let me know your plans on how you are going to resolve that deficit before the deadline. I am assuming that you will be working each and every weekend and long hours during the week to ensure that the required target is reached.’

The lawyer in question was suffering from mental health issues. She later misled her employers, a client and backdated letters. The tribunal criticised the firm for placing her undue pressure. Her health issues made her more vulnerable to a negative reaction to the letter. The firm should have been alerted to the warning signs of her illness. The firm carried a significant portion of the blame and had not supported its employee. She was suspended for two years – but such suspension was itself suspended for three years.

Anyone who has managed a law firm is aware of the need to ensure that cases are turned over quickly and efficiently. Managers are likely to be under similar pressures – from partners, banks, creditors… There are many ways in which this can be addressed. Supervision and support are crucial. If a solicitor is falling behind a target there might be any number of reasons – too many cases, an unrealistic target, illness (as in this case), lack of support. There can never be any excuse for managers to bully their lawyers in order to improve performance. Members of a team need to know that there is someone that they can speak to if they are struggling. That someone is not there to judge but to guide and support.

Many of these cases that we are seeing involve a young lawyers desperately trying, and failing, to sort out a crisis on their own. Why are they working in such isolation in the first place?

I think that the agenda is shifting here. I used to emphasise the importance of lawyers not being afraid to speak up if there is an issue. The message is now well and truly one for managers. Can my lawyers speak to me without being ‘terrified’ of the reaction? What support do I offer?

Aggressive treatment of staff is always counterproductive.

We are likely to see more cases where firms find themselves under scrutiny. Most firms do care for their staff. Clearly others do not. And this has to change.


Steve Cornforth is a solicitor who owns the Steve Cornforth Consultancy providing Management Support, Compliance Advice and Training for Lawyers and Law Firms.


Tuesday, 9 January 2018

Welcome to Hogwarts - our new Justice Secretary

One thing which can always be predicted in any Cabinet Reshuffle is that we will have a new Justice Secretary/Lord Chancellor. It is like the first day of every year at Hogwarts when Dumbledore introduces the new Defence Against Dark Arts Teacher. The belief is that the job was jinxed by Lord Voldemort. Could there be a link??

But, for better for worse, we now have details of the latest bearer of the chalice. It is David Gauke, MP for South West Hertfordshire. The most sensational feature of his appointment is that he is a Lawyer, the first since Ken Clarke in 2012. This should at least mean that he will have an understanding of the role of the Lord Chancellor in defending the independence of the judiciary – particularly in the face of attacks from the Daily Mail –

He might even have some insight into the practice of law, albeit from a limited perspective.

Mr Gauke trained at City firm, Richards Butler and qualified in 1997. He then moved the Macfarlanes and was there from 1999 until he entered Parliament in 2005.  He first stood for election in 2001. So working in the law has never been a major part of his career path. But at least he has some knowledge of the legal world.

His voting record is not encouraging when we come to Access to Justice. According to They Work for You - 'David Gauke generally voted for restricting the scope of legal aid' -

He has generally voted against laws to promote equality and human rights, supported the bedroom tax, reductions in welfare spending and mass surveillance. In 2014 he defended the growth in the number of food banks, saying that they did a valuable job and that he was proud that the government signposted people to them –

So, we cannot expect a champion of the rights or ordinary people.

Will he last until a new Hogwarts year? Will the government last that long?

As things stand we should probably assume both. I foresee many battles ahead and do not hold out any great hope for huge changes in broadening access to justice this side of a General Election. 

But let us at least hope that he will take his constitutional role more seriously than some of his predecessors.