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Friday, 28 June 2019

Medical Negligence - let's talk about victims not winners

The first time I secured a settlement in a brain injury case was in the late 1990s.  It was a claim for a child who suffered from cerebral palsy following medical negligence in the first few days of his life. He was left with catastrophic injuries. He has no speech and no independent movement but is otherwise as intelligent as anybody. We secured a settlement of just over £2m. As is often the case, I kept in touch with the family for many years. I was so proud when he got his University degree. He is now an adult who lives independently, with lots of support. This was secured as a result of the compensation that he received. It enabled him to live in suitable accommodation, to have the 24/7 care that he needs and to make use of high-quality communication technology. He was appropriately compensated for the avoidable injury that he suffered. Both he and his family would have traded every penny for a healthy life.

High awards of damages sometimes look like lottery wins. They are often treated as such by the media. Reports of settlements like this regularly use words like ‘win’ and ‘payout’. Earlier this year, The S*n reported that a group of patients had won £46.9m over cancer blunders –

In a very recent report, we were told of a boy who was severely disabled after medical negligence. The headline reads –

‘Boy left severely disabled by medical blunder wins £2.1 million pay-out from NHS’

None of these victims have won anything. They and their families are left with a lifetime of struggle through no fault of their own. If they can establish that the injuries were caused by the negligence of medical practitioners, then they are entitled to damages. A small proportion is for the injury itself. The vast majority is to cover their needs for life.

Hasn’t the time come to stop calling them ‘winners’? This creates a hostility towards claimants who are perceived as draining money from the NHS. There is an even greater hostility towards the lawyers who fight for justice on their behalf. Since the removal of legal aid for most cases, the only way that cases can be brought is where those lawyers agree not to be paid if a case fails. The media still insists on calling them 'no win no fee lawyers'  as a form of insult.

Let’s start referring to claimants as victims of negligence. Then we might see a move away from talk of reducing damages and legal costs, towards talk of avoiding such incidents in the first place.

Monday, 24 June 2019

Why does this keep happening?

Why does this keep happening?

We read today about yet another fee earner whose career in in tatters because they have tried to cover up mistakes –

In this case there were three cases where deadlines had been missed by a few days. Rather than admit the mistake the non-qualified case handler dishonestly back dated documents to mislead the court and the other side. In each of these cases the problem was probably capable of resolution with a bit of experienced help. If he had admitted the first error the others might well have been avoided.

Last year a young solicitor was struck off after backdating 23 letters and misleading a client about the progress of a claim –

And then there was the experienced solicitor wo actually gave a false letter to an SRA investigator –

One common factor is that the attempts to cover up have been discovered without great difficulty. They have usually been followed by an eventual admission of wrongdoing.

I cannot accept that we have suddenly become a profession of the dishonest. The lawyers in these cases are not cynical fraudsters. They are almost always acting at a time of stress and panic. They are almost always acting alone as a situation rolls out of control. This does not justify dishonesty. But it does raise a serious question for all managers of law firms. Why do lawyers think it is better to risk their career than admit a mistake? What is the ethos in firms that creates such a sense of fear? What support are we giving to our staff? Are we reminding staff that it is not usually the end of the world if we miss a deadline? But it might be the end of a career if they try to lie their way out of it?
In March 2018 I set out my 5 point plan to help lawyers to sleep at night –

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.

      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!

Monday, 3 June 2019

Legal Aid, Red Shirts and why I would rather walk alone!!

Back in 1999, I wrote the Letter of the Week in the New Statesman magazine. This was what you did in the days before Twitter! I was responding to the Labour Lord Chancellor, Lord Irvine’s proposed cuts to Legal Aid. The attacks on legal aid lawyers were relentless.

That was the start of the falling dominos that has led us to the legal aid waste land that we have today. Who would have thought back then, that we would end up with some areas having little or no legal aid lawyers in certain key areas of work such as housing?

Lord Falconer, a close friend and ally of Tony Blair was a key player at that time. He has recently expressed regret for creating the belief that legal aid lawyers ‘had their noses in the trough’.

This is a welcome change of heart. But it is a little bit like Henry VIII saying he wished he had tried conciliation with Anne Boleyn!

At first many of us here hostile to the idea of lawyers working for nothing or supporting legal charities. What we really needed was a properly funded legal aid scheme. But we faced a dilemma. How could we leave people who were threated with losing their homes or livelihoods, to fend for themselves? Lawyers had to support agencies providing free advice whilst also campaigning for legal aid.

All of which leads me to the Liverpool Legal Walk on 11th June. This will the 8th walk when a couple of hundred lawyers and others who work in the legal sector will take to the streets of Liverpool. We do this to make a statement about access to justice and to raise funds for providers of free advice.

Desperate times call for desperate measures. This is why I have pledged to do the whole 5k walk in a Liverpool FC shirt just days after their much-publicised Champions League win. As a lifelong Everton fan, this is a big deal and something that I swore that I would never do. But I recklessly said that if my sponsorship went over £500 I would face the ultimate humiliation in the name of access to justice. We crossed that line today and I am now doomed! But it will be worth it if one person gets access to legal help that would otherwise be out of their reach.

You can still donate to the cause at –