End of Term - Flexible Terms and Fixed Fees
Well, it's the 30 July 2021, the traditional 'end of term' for the Trinity Legal Term. We don't talk much about those terms any more, and the business of the law seems to be very much a business much like any other these days. Only the High Court really goes off on holiday for 2 months, and not many of them!
As loyal readers will know, I've made changes to the way I practise this year, to concentrate on sole practice as a leader in the injury fields. That change was made on St David's Day, appropriately enough perhaps. 🏴 After 5 months I can report that I'm enjoying it, though the challenges for those instructing me have become all the more apparent as I have been able to discuss with solicitors how they use counsel, particularly senior counsel, and the difficulties they have in running their businesses in these days when, somewhat bizarrely, claimant lawyers are supposed to take massive risks in running cases on CFAs without being able to recover anything substantial by way of 'premium for self insurance' (success fees) from the losing defendant, and without being able to raise base costs to cover bad-debt risks fully. I don't know about you, but I haven't really met anyone who understands how this is a viable business model.
Without wishing to engage in special pleading, the bar is of course particularly caught in this dilemma, given that you can settle off the 'easy cases', at least on liability, but it's the really difficult ones in which you need counsel's full input, and for the senior bar (including both senior juniors and leaders) practice is usually low volume, high complexity = high risk. Moreover, when counsel is fully involved, especially for hearings, s/he has to be fully committed to your potentially losing case rather than being able to 'send along a junior to sit behind counsel', while it has certainly become rarer to see solicitors and especially partners come to court in all but the most serious/complex cases. It's not surprising, therefore, to be told by solicitors that they find it increasingly difficult to get the barristers they want for difficult cases. Maybe the real point of the undemocratic Jackson plan was we're not supposed to run the difficult cases, even for the most severely injured and most vulnerable. Great. That's access to justice for you, right here, eh Rupert? Ignoring the real trend of decreasing numbers of claims and trotting out data about the numbers of easier 'processable' cases that firms have been forced to concentrate on in RTA (now under threat in different ways) and holiday sickness claims etc. doesn't begin to meet this criticism. I suppose if you look at everything from an insurance point of view, the individual doesn't matter that much. Unfortunately for us, though fortunately for our clients, claimant lawyers don't tend to think like that.
Another aspect of this is that claimant lawyers are placed in intolerable conflict of interest when their direct financial interests are so in play alongside those of their clients. The public have been 'sold a real pup' on this IMHO. The idea that 'professionals' would not be affected by those pressures in the advice they give is ridiculous. Anyway, the principles of conflict require you not to put yourself in a position of apparent conflict, irrespective of whether or not you may or do succumb. I'm afraid the stories I hear suggest that lawyers do under-settle cases, and I'm not sure why that should be a surprise. The cynic in me thinks that that was very much also part of the Jackson plan to have lawyers 'have an interest in the outcome'. Why else? Perhaps it's only a question of time before claimant counsel giving a commercially sophisticated witness a hard time is attacked in court on precisely this basis. I'm not sure why they should be stopped from doing so. There is an ever decreasing band of leading claimant counsel who are prepared to run serious cases for injured people who need help but against what a hard-nosed assessment of the prospects would really demand in strict business terms. Even we are finding it increasingly difficult to justify taking cases where the prospects are at or not far over 50%, still less the cases which even on a less than 50% assessment merited Legal Aid because of their importance. Those were happier days for this type of case.
Anyway, bitter rambling about our system of civil justice aside, the positive – and always take the positive! - is that I believe Covid has driven us all to take stock of the way we do things and services we offer, and I am very glad to have had the opportunity to do this over the last few months. I have done some direct access work which, although it involves more 'hand holding' than as counsel I am used to, also enables me to feel a real sense of engagement as 'advisor and guide' including, but more holistically than as to, the pure legal issues in a case, and at an earlier stage post injury/death than usual which gives a greater sense of ability to shape the making of a case.
I have worked with solicitors to find flexible funding arrangements, including crowd-funding and discounted CFAs, which enable me to do the job I was trained to and have learned over many years, without the acute and, frankly, wearing pressures of the cliff edge of 'straightforward' CFA funding (whatever that might actually be!).
I am generally quite open to new and flexible terms for my engagement to advise or represent clients, and I always seek to understand and assist the business models of my instructing solicitors, provided of course that they seek to understand and assist mine. This is surely all part of forming cohesive teams, with mutual respect and trust for fellow professionals, each trying to do their best in business in frankly challenging times, and each wanting to help and “watch the back' of the other.
One particular aspect of all of this is my recent realisation that offering fixed fees for initial advice (based on agreed limited hours) is something that many solicitors can work with much better than the traditional open-ended 'could be a day, could be 3' type of 'letting loose' of very expensive (albeit highly skilled) advisors. Direct access clients certainly appreciate this approach, and I am happy to agree fixed fees, of course, as those instructing (as well as their clients) are entitled to know in advance what their exposure is to costs, and limit it appropriately, and with a client paying privately must, if acting properly, surely do so.
You don't usually go to leading counsel – or perhaps an experienced senior junior – unless the case is complex and difficult and will require a number of hours to consider and advise, but there need to be limits which are agreed and understood from the outset. That is the way for everyone to do the business of law co-operatively, professionally, efficiently, and (dare I say it!) profitably.
So here's to the new Legal Year, and of course all the work we – and most courts - will have already done before that begins in October – have a great summer everyone and I hope we get the sun back soon! 🌞