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Wednesday, 28 November 2012

The End of One World - welcome to the new!

I am always interested to know what influences clients in their choice of lawyer.

I was brought up in the days when solicitors were banned from advertising and all work was introduced by word of mouth, previous clients or just having a ‘shop front’ office on the High Street. That has of course now changed beyond all recognition since the advertising ban was lifted and the introduction of referral fees, which saw some firms buying in cases at an industrial level.

All of this is likely to change again with the proposed ban on referral fees and the arrival of the ABS which brings well known brands into the market. So what will influence peoples’ choice?

According to a report on the legal futures web site a significant majority will look online. The figure is 68% overall but rises to 75% in the 18 – 44 age range –

Interestingly a similar number of clients in the younger group, would look to supermarkets for legal advice.

This is certainly a challenge to those of us working in traditional law firms. But it should be seen as a challenge rather than a threat. Firms need to seriously examine where they need to change rather than simply bury their heads and wait for the worst to happen.

The main concerns about lawyers relate to cost and communication.

There is no doubt that there will be a reduction in the fees that can be charged. The expectations of business clients combined with impending changes to personal injury claims, make this inevitable. The days of the hourly rate are numbered. Fixed fees are the future, whether we like it or not.

So there will be a need to have that part of the work which involves process – more than you think – done by non lawyers and by using effective technology. The lawyers then focus on the work which requires their expertise. So a greater number of cases will be done; at a lower overall cost.

Social media is the key to better communication. I recently heard of a survey where only 5% of clients wanted their lawyers to communicate by letter. Facebook, Twitter and emails are how people speak to each other in the real world.

Those new providers of legal services will embrace this – most have been doing it for years. Those lawyers who embrace this change can hope to compete. Good luck to the rest!

Tuesday, 27 November 2012

Double worry for flood victims

Once again the news is all about floods. Most of the country has been affected including the North Wales City of St. Asaph which is not far from Liverpool –

These unfortunate residents have had to evacuate their homes and lost thousands in damaged or ruined possessions. Never have they been more in need of good insurance cover. The last news they need to hear is that they could have difficulties getting insurance in the future just because of where they happen to live.

Following floods in 2008 the insurance industry agreed with the government to renew cover albeit at a high cost. That agreement is coming to an end and today we hear that talks between the Association of British Insurers (ABI) and the Government have stalled –

This means that the flood victims could find that future insurance premiums will be too steep to afford or simply unavailable. There cannot be anything worse than losing your home and possessions and then having to face the extra worry about whether you will have any protection if the same thing happens again.

This breakdown in talks comes as a bit of a surprise.

When it comes to slashing the rights of ordinary people to bring claims for compensation, the Government and the ABI seem to work in perfect harmony –

But when it comes to protecting the rights of ordinary people to insurance following a disaster the whole thing grinds to a halt.

Of course, there will be those who will say that it is the victims fault for living there, and that they should move. That is much easier said than done. It has never been harder to sell properties and these houses will be virtually unsellable. In the meantime these residents are stuck where they are. The government and the industry should do all they can to sort out this mess.

The insurers will be saving a fortune as a result of the massive cuts in the right to bring motor claims. How about some of that going to flood victims rather than shareholders?

Thursday, 22 November 2012

Concerning Judges and Claret over lunch...

In the 1980s it was not unusual to go for a business lunch, down a few beers and be back at the office for a full afternoon’s work. Whether it is age or cultural changes but that would never happen now. If I go out for lunch it is a glass of sparking water and if I’m in the office it is a nice cup of tea! If I went near a glass of wine I would be found snoring at my desk by 2.30.

According to members of a Parliamentary Committee our judges have a far stronger constitution. New Minister of Justice, Chris Grayling, recently appeared before them for the first time. Concerns were expressed that Old Bailey Judges would happily down a few glasses of claret over lunch and then return to the bench –

You would think the committee had more pressing issues, such as the attacks on Access to Justice that I mentioned yesterday. So who cares if the judges have a tipple over lunch so long as they do their jobs? But there is one serious issue behind this. That is the ongoing difficulty of ensuring that our judiciary is representative of society as a whole. The claret over lunch might give a misleading image.

The most recent addition to the Supreme Court, Lord Sumption reckons that it will take 50 years before we see a fully diverse bench –

We must all hope that he is wrong. We are approaching the position where women make up about 50% of the legal profession. There are probably more women qualifying than men. This has been the developing picture throughout my thirty years as a solicitor.

I cannot believe that there are not more women with the skills to reach the higher courts. I recently had the privilege of meeting Baroness Hale of the Supreme Court. She clearly has a great intellect but was also in touch with the real world and had a sense of humour. Surely she is not the only woman with those skills. In fact she isn’t. I know many judges who are perfectly in touch with the real world. 

But it is the perception that is the problem.

There are many women lawyers out there who would be well suited to bench. The same goes for ethnic minority groups. We must increase that representation sooner rather than later. Should that mean positive discrimination? Possibly. But there certainly needs to be a positive effort to recruit judges from all social groups. Otherwise I will be 107 before we have a broad judiciary and I’d rather not wait that long.

Tuesday, 20 November 2012

Justice for ordinary people - another brick out of the wall

One of my regular themes has been the relentless attacks by the present Government on Access to Justice for Ordinary people. Their approach seems to swing between indifference and outright hostility in favour of its friends in the insurance industry –

So we have seen the removal of Civil Legal Aid for almost all clients. Interestingly this was said to be needed to save the treasury £350m when the same politicians have squandered £100m on a Police Commissioner election that nobody wanted. We have also seen attacks on lawyers who try to promote access to justice by running cases on no win no fee agreements. Those lawyers are vilified by the media and ministers for promoting a ‘compensation culture’ which most commentators accept, is a myth.

But this week has seen one of the most devastating attacks of all. This is the Ministry of Justice's announcement yesterday of a ‘consultation’ to slash huge amounts off the amounts which lawyers can be paid for pursuing cases for victims of motor accidents, accidents at work and most other personal injury claims. It says that it is a consultation but it requires responses by 4th January 2013. So once we knock Christmas out of the equation it is just we few weeks for changes which will have massive consequences for victims. So it seems that the decision is made –

In many cases this will see a reduction of up to 60%.

The problem we have is that any lawyers who complain will be accused of acting out of self interest to maintain their incomes. But this goes far beyond that. Some lawyers will find other work to do. Others will go out of business. But why should the most vulnerable have to suffer. The fixed fees are rightly described by the Law Society as ‘woefully inadequate’. This will have a double effect. Many firms will decide that they can no longer do this work and stay in business. So they will do other work. All will decide that to do the work at such derisory rates will mean a reduction in quality. If work has to be done on the cheap then that is bound to be the result. On the other hand insurers will ensure that they have the best that money can buy.

One ironic outcome predicted by Liverpool Solicitor Mike Sexton is that we could see a no fault compensation outcome. Insurers will have a huge incentive to settle claims following first notification of a claim. They can pay out with no questions asked and have to pay legal fees of a few hundred pounds. So the economic result could override any concerns about the merits of a claim. Is this outcome really good for society?

What is certain is that this will make it massively more difficult for ordinary people to pursue justice. Insurers will save millions in the process. We are always being told that their agenda is to reduce insurance premiums for motorists. But I have never heard any give a guarantee that any savings will result in a rebate. I doubt if any motorist really expects that to happen.

Saturday, 17 November 2012

I will defend to the death your right to tweet

Rose Heilbron QC is one of Liverpool’s most famous lawyers. In a famous speech on Human Rights in 1950 she said –

‘We in this country have not achieved freedom of speech or freedom of conscience or liberty without having fought long and bitter battles for them over the centuries…Liberty does not happen overnight.’ *

Freedom of speech is a right of which we are rightly proud and, often, take for granted. But two recent cases raise the question about how it applies in the modern world of Social Media.

Adrian Smith is a Christian who is against same sex marriage. He expressed his views on his Facebook page calling it – ‘An equality too far.’ His Employers, Trafford Housing Trust, took disciplinary action against him and demoted him.

This is clearly an emotive subject. There are hugely differing opinions even among Christians. For what it’s worth I do not agree with him. But he has every right to express that opinion. Thankfully, the High Court took a similar view yesterday and found the employers to be in breach of contract. What type of society are we becoming when it becomes a disciplinary matter to say something we disagree with?

A similar situation arose earlier in the week. A teenager was arrested and detained for allegedly burning a poppy and posting a picture on Facebook.

Now most of us will find what did distasteful. But if we are to be a society which proudly protects free speech we cannot criminalise his actions. We can ignore his views, we can deplore them and present strong arguments against them. But he doesn’t become a criminal because he says something we don’t like.

I have commented on numerous occasions about the growing influence of both Facebook and Twitter and how they are transforming modern communication. But they still work against the background of free speech. We must avoid excessive policing of opinions. It is the first step towards Orwell’s terrifying ‘thought police.’

A French philosopher, possibly Voltaire, once said ‘I do not agree with what you said but I will defend to the death your right to say it.’

This is a right we should treasure and protect. We cannot limit it to things of which we approve.

*Rose Heilbron by Hilary Heilbron HART Press 2012

Thursday, 15 November 2012

Lawyers - The Next Generation?

I was at a fascinating meeting this week,  with a group of post-graduate Law Students at Liverpool University. These were studying for Masters Degrees or PhD’s in Law and so they were a particularly talented bunch. Some were local but others were from as far afield as South America and Asia.

What was noticeable was that hardly any of them had any interest in traditional legal practice. They were drawn to high end commercial work or international human rights. Sadly I didn’t speak to one who was planning a career as a High Street Solicitor! When I was a student it was a very different world with most if not all of planning such a career.

I know that this was just one, particularly talented, group. But it did get me thinking about where the best young lawyers will come from in the future. 

The pathway to a traditional career in the law is not easy. Students have to pay massive fees and run up staggering debts before they qualify. Then they have to find a training contract and then a job as a solicitor/barrister when they finish. And if they find training contract they can find themselves paid no more than the statutory minimum wage –

This is hardly an attractive to any but the most determined. When you add to that the added difficulties of working for ordinary people the landscape looks bleak. Having negotiated the daunting hurdles of qualification they find themselves working in a system where Legal Aid has virtually disappeared and working on a no win no fee basis makes them a target for politicians and the media!

So it is hardly surprising that International Commercial Law is a more attractive option to the best students. Who can blame them?

But this is shoring up problems for the future. Where will we find a new generation of lawyers to look after those who are not wealthy or major corporations? There will always be the dedicated few who will see the law as a vocation. But why should they have to?

We have a legal system which is the envy of the world. But if people do not have access to that system, and to the best legal representation then we will all be the worse off for it.

Friday, 9 November 2012

Sorry doesn't have to be the hardest word..

I have handled many Clinical Negligence cases over the last 20 years. These have covered all areas of medicine from simple missed fractures to major brain injuries at birth.

There is one thing which has been common to almost all claimants. Despite all of the rhetoric from politicians and the media – they are not primarily interested in money. They are actually more concerned about getting an explanation about what happened, an acknowledgement that there has been a mistake and, where appropriate, an apology.

Compensation is hugely important in helping victims; especially those needing care for life. But it is not normally the main concern. In fact much litigation and much distress could be avoided by open communication and an acknowledgment that mistakes have been made.

Unfortunately that is not the case according to statistics published by the Health Service Ombudsman. In the last year there has been a 50% increase in the number of complaints about the NHS. There was a similar increase in the number who complained about poor explanations –

This is a major concern. Victims of medical blunders can often feel that they are responsible for the NHS finances. There are constant assertions made that claims against hospitals are a drain on the NHS budget and that payments made to patients are preventing others from having life saving treatment.

That could not be further from the truth. It is not the victims’ fault that their lives are devastated by a medical mistake. The cost of litigation can be avoided if open admissions and apologies are made right away. If there is an open admission that there has been negligence then both sides can work together to deliver a compensation package which provides for the victims needs. It is often a long and drawn out war of attrition to get to that position with thousands of pound spent along the way.

Life will become even more difficult for victims next year when the government’s devastating attacks on legal aid will remove help for all claimants except babies injured at birth. So injured patients and their lawyers will revert to no win no fee agreements which are again attacked by the media for feeding the so called compensation culture.

It would be better all round if the NHS took on board the observation of the Ombudsman - "The NHS needs to get better at listening to patients and their families and responding to their concerns."

Tuesday, 6 November 2012

Decision Day - Choose Wisely!!

So today is the day that the USA goes to the polls. 

This time tomorrow we should know who will be in charge of the biggest hoard of nuclear weapons in the world, for the next four years.

The changeover on the other side of the pond is a bit more civilised that in the UK. If Barack Obama wins then he carries on in the White House as before and will be sworn in early in 2013 for another term. If he loses then he will not have to bring the removal people in overnight! He will carry on in a transition period until Mitt Romney, please no (!), takes the reins in January.

This promises to be one of the closest elections in recent years. The result in many states is predictable. Obama will be expected to win in New York and California and Romney in Texas and many of the southern states. The result will ultimately come down to a few marginal states.

Opinion in the UK overwhelmingly favours Obama. According to the Mail Online the margin is 85% to 15% in the UK. The pattern is similar across the world –

Obama remains hugely popular because of his historic win in 2008 and because the world was so relieved to see the back of GW Bush. In fairness we do not have the same insight into domestic issues and this partly explains why it is so close in the USA itself. And Romney has hardly endeared himself over here with his insulting statement that London was not fit to host the Olympics!

Whatever the result I hope that the decision is made by voters and not by the Supreme Court as happened in 2000 when Bush won a finely balanced election despite losing the popular vote –

I still remember the confusion and uncertainty that followed that election. It was bad for the USA and bad for the rest of the world due to the massive influence of American Foreign Policy.

I would prefer a resounding Obama victory. But I would prefer to see Romney win than have the lawyers decide who the people voted for!

So to all our friends over there - have a good day and choose wisely.

It promises to be a late night.

Monday, 5 November 2012

Twitter - a media lawyer on every street?

Twitter and Facebook are changing the way the world receives and shares information.

It wasn’t so long ago that all we had were newspapers and TV/Radio news. Now we can get almost immediate, on the spot tweets straight to our phones. In many ways this is making the news far more democratic.

But it also carries legal risks for all of us. We may publish something and be blissfully unaware that we are breaking the law.

This is what happened in the recent rape trial of footballer Ched Evans who was convicted earlier this year. Nine defendants have been fined for revealing the name of the victim on both Twitter and Facebook. They have also been ordered to pay her compensation –

Their Defence was that they did not know it was against the law. Unfortunately that does not amount to a legal defence. If you publish unlawful material then you pay the consequences. Ignorance of the law is not an excuse.

This is where the development of social media causes problems. We are all becoming reporters. But not everyone is trained. Not everyone has access to media lawyers who can proof read what we write and warn us of any problems that might arise. As we know 140 characters can cause much pain!

So what do we do? We are hardly going to have access to lawyers to vet everything we say! So the only advice is ‘don’t do it’. If there is any potential for causing offence, or upset or other negative reaction then ask yourself ‘is it worth it?’ There is plenty going on in the world to keep us occupied without causing unnecessary heartache to ourselves and others.

Think first tweet later!!

Thursday, 1 November 2012

What Justice for Savile Victims?

The Jimmy Savile story continues to develop with more victims and increasingly disturbing details coming forward by the day.

As we all know it is too late for any criminal action to be taken against him. We may see others prosecuted for their involvement in his crimes and this process began with a high profile arrest last week 

But there are remedies available to his victims and we could see a deluge of claims for compensation. Such claims are often not viable after the wrongdoer has died. But here we have a person who has left an estate valued at more than £4m and which has already been frozen by his executors –

The sheer volume of claims could wipe out the estate.

What other remedies do victims have?

Well they can submit a claim to the Criminal Injuries Compensation Authority (CICA) which is funded by the taxpayer and compensates victims of crimes of violence. These will not be entirely straightforward because it is normally necessary to submit a claim within two years of the incident. In these many of these cases we are going back over 20 or even 30 years. Whilst the CICA can waive the time-limits, but the tests are quite strict and it is by no means guaranteed. But I would anticipate public pressure for flexibility here.

There is also a potential claim against any organization that employed Savile if assaults were committed during the course of his employment. This is what we call vicarious liability and could certainly apply if the incidents were linked to the employment. In most cases it seems that that was the case.

And there can also be claims against organizations who were themselves negligent for not protecting victims or even facilitating the assaults by allowing him unlimited access to the vulnerable.

These civil claims are again subject to time limits which could well be a major obstacle across the board. But again the courts will hopefully be sympathetic to claimants as they have been in the recent case of Kenyan torture victims in the 1950s –

The whole area is a bit of a minefield and expert legal advice is going to be essential.

I suspect that this whole unfortunate story could see the civil and criminal courts busy for some time.

We all keep asking ourselves how this could have happened. We certainly owe it to the victims to do all that we can to secure justice for what they have suffered.