Friday, 31 May 2013

Social media should be used more widely by law firms and lawyers

A few days ago Legal Futures published an interesting piece looking at the growth in online marketing by law firms, something engendered, in the PI sector at least, largely by the ban in referral fees.

Spencers was mentioned as a new entrant, coming in at no. 15 in the search marketing leader board. We're up against any number of far bigger law firms, so I am delighted by this achievement. It’s one that also prompts some thoughts about today’s law firms and social media.

In praise of social media

I don't pretend to fully understand how online marketing is done - my colleagues, especially Martyn Gilbert, who heads is our firm's CIO takes the lions share of credit for this - but I do recognise that law is very different today to the profession I joined some 30 years ago. Back then, 'social media' - if it even existed - was an internal memo suggesting that people meet in a pub on a Friday night. Now, law firms have blogs, Twitter accounts and Facebook pages; being linked in is essential.

Social media has its downsides. Too often, it can be a conduit enabling the publication of dubious content, something which, I am pleased to see, is now being looked at by Facebook. But law firms are well placed to utilise social media properly, even though, as this report from The Guardian reveals, many lawyers remain diffident about it. But lawyers do not need to be versed in media law to adopt a sensible, informative and courteous tone in their use of social media – and if they proceed in this way, they can reap the benefits.

Blogs, for example, are cheap and easy to maintain, and provide a great platform for disseminating the right message about a firm. Needless to say I'm a supporter, having published this blog for a year and a half now. An aspect of blogging that I enjoy - and which can be a great benefit to all lawyers who blog - is that it forces me to keep on my toes, to be up to speed with the latest developments in our sector. I also enjoy the feedback and interaction that comes of blogging. In the PI sector, there is much that needs reform; generating a healthy debate strikes me as the best way of trying to ensure that changes happen.

A Variety of Platforms

Today's technology enables the simultaneous publication of blogs on other social media platforms. Sometimes, it's not easy to say all that one wants to say in 140 Twitter characters, but deciding on a Twitter catchphrase for a blog is relatively straightforward. This, with a hyperlink to the blog, makes for another great way of getting your message out. Similarly, blog content can be published on Facebook and Linked In. Beyond this, we're into the sometimes mysterious world of search engine optimisation (SEO).

There remain things to be careful about. Blogs and social media are an easy way to libel someone. It pays to ask yourself what the ordinary person would make of what you’re writing - would they think the worse of whoever you're writing about? If the answer is 'yes', you may be into the territory of defamation, in which case you’ll need to be sure that what you’re alleging is true or protected by another defence.

Blogger Beware (of the need for diligent upkeep)!

But as I say, specialist media law knowledge is not a pre-requisite of a law firm’s use of social media. By nature, lawyers are conservative, and so it is unlikely that a law firm will be on the end of a claim for libel if it starts a blog. But beware of other things, like breaching client confidentiality or infringing third party copyright. If you want to use images to illustrate your blog, either make sure they're yours to publish, or that you pay an appropriate licence for them, or adhere to the terms of usage on sites such as Flickr.

And finally, bear in mind that a successful blog requires a lot of upkeep. It's no good starting one, but then finding you don’t have time to continue  it. Hence, here I am, writing this, even though I’m technically on holiday. So delighted though I am by Spencers' appearance at no. 15 in the search marketing leader board, and supportive as I am of social media's upsides, there is one cautionary note: blogger beware!

Friday, 24 May 2013

Where did all the ethics go?

In September last year the Office of Fair Trading referred the UK's private motor insurance industry to the Competition Commission. The referral followed a study by the OFT in May 2012, which found that there were reasonable grounds to suspect that there are features of the insurance market that prevent, distort or restrict competition.

In other words: there is reason to think the insurance industry is not serving its customers well.

It's a year since the study that, in turn, led to the referral to the Competition Commission. Perhaps, if we look back at the study, we might find that insurers have started to get their house in order, ahead of the report of the Competition Commission in September next year?

Dubious Practices

Sadly, the short answer is 'no, they haven't'. The OFT, in its summary of the referral, put it thus: in focusing on "the provision of replacement vehicles and vehicle repairs", it was thought that "the insurers of drivers responsible for an accident ('at-fault' drivers) appear to have little control over the way repairs and replacement vehicles are provided to the 'not-at-fault' driver." The OFT  added that this "may enable the insurers of not-at-fault drivers, and others such as insurance brokers, credit hire organisations and repairers, to engage in practices which appear to result in the cost of replacement vehicles and vehicle repairs provided to not-at-fault drivers being higher than they might otherwise be."

What is meant by the use of the word "practices"? Let's be clear. This means the payment of referral fees. The Legal Aid, Sentencing  and Punishment of Offenders Act (LASPO) may have banned the flow of these between solicitors, claims management companies (CMCs) and insurers, but they are alive and as insidious as ever when it comes to garages, credit hire companies leasing vehicles to drivers after accidents and recovery companies.

A Conduit for Backhanders

If little, if anything, has really changed, there's worse. An (unintended?) consequence of the Alternative Business Structure (ABS) regime, which came into being in January 2012, is that insurers have a ready-made way of circumventing the referral fee ban: they can now simply buy or merge with law firms. The backhanders keep flowing.

It's not easy to discern in the terms of the OFT referral but there is clearly a huge question mark over the conduct of insurers and their representative body, the Association of British Insurers (ABI). The ABI has proved adept at spinning the yarn that 'compensation culture' fuels hikes in insurance premiums and makes our lives a hostage to unscrupulous bounty hunters who will issue a claim at the drop of a hat - and yet it is the ABI's very members who cause the 'blame and claim' syndrome in the first place.

These thoughts lead inevitably to a consideration of the ethical standards - or absence of them - at play among insurers. Time and again stories of outlandish litigation in the media turn out to be bogus or wildly exaggerated; time and again we encounter insurers blaming the increase in the cost of premiums on everyone but themselves.

In truth, investment income - which is what our premiums are used for - has flattened out because of the global recession and so insurers seek to ramp up their profits through a back door which has become nothing but a conduit for backhanders. It's a vicious cycle: as one insurer ups the ante, passing on costs to another, so does its competitor. And so on, and on - until, hopefully, the Competition Commission will do something about it.

Wishful thinking?

Meantime, as Duncan Minty's excellent blog recounts, insurers continue to fall short when it comes to acting ethically. This post, for example, reveals that a "survey by CSR Europe and KPMG of five European insurers and five European banks found that 80% had no ethical objectives or targets of any kind, while only another 10% had a qualitative target." As Minty notes, while admittedly a small survey it shows "that ethical objectives and targets remain a challenge for insurers."

From a claimant solicitor's perspective, I'm tempted to go further and say that acting ethically seems to resemble a brick wall for insurers. But bricks walls don't stand forever. Even the Berlin Wall came down eventually. Minty has produced a free e-Book on setting ethical objectives and targets for your business. Here's hoping that the CEOs of insurance companies download it, read it and learn from it. Wouldn't it be nice to think that they'll do so, ahead of the Competition Commission's report next year?

Friday, 17 May 2013

Every eight hours someone is told they will never walk again

It's a remarkable and dismaying statistic: every eight hours, somebody is left paralysed by a spinal cord injury and told they will never walk again.

The reality of a spinal cord injury (SCI) is all the more terrifying given the absence of adequate healthcare for those suffering. This is something that I've written about in the past, and it's something that I intend to continue to publicise. Please join me, then, in supporting Spinal Cord Injuries Day, which takes place today, Friday 17 May.

Raising awareness

Every eight hours someone is told they may never walk again
Spinal Cord Injuries Day aims to raise public awareness of the grave difficulties faced by many people affected by spinal injuries. An excellent campaign is presently being managed by to do just this, and I wholeheartedly embrace it.

Specifically, the campaign aims to ensure further and better medical research into more reliable treatments, to develop improved medical care and support for those affected by an SCI, and to provide guidance and support for those affected by spinal injuries so that they can lead independent lives.

My work has brought me into contact with many people with SCI. Often the diagnosis of paraplegia or tetraplegia comes after a sudden, traumatic and wholly unforeseen accident. Managing the injury takes time, money and a colossal amount of care - and has a huge impact not just on the injured person but on their family as well.

Research carried out by Loughborough University, on behalf of spinal injury support charity Aspire, reveals the harsh truth about the state of care for those affected by spinal injuries. Last year, for example, a fifth of those affected were discharged from hospital and transferred to a care home, irrespective of their age. Why? Because local housing cannot suitably accommodate the injured person's changed lifestyle and needs.

Health care is not good enough

Moreover, these care homes are often understaffed and, frankly, horrible places for those adjusting to their new lives. Loughborough University's research incorporated 20 interviews with residents from care homes across the UK, most of which suggested care workers don't have the necessary experience or know-how to look after people who have suffered such traumatic injuries.

From one interview it transpired that staff had attempted to move a person with spinal injuries using a 'slideboard', only to drop the patient on the floor. The result, adding insult to injury, was that the patient sustained a broken arm. On a separate occasion, that same person was provided the wrong medication - a potentially fatal mistake.

Indeed, as I wrote at the end of last year, my colleague Allison O'Reilly reported in the shocking truth of the story of Roger Hearn, who sustained life-changing damage to his spine in a road traffic accident while on a cricket tour in India. Mr Hearn spoke at a hearing held by the All Party Parliamentary Group on Spinal Cord Injury, and also gave an interview to ITV about his experience. He revealed that care home rules mean that his wife is prohibited from sleeping in the same bed as her husband. Her commitment to her husband's care is inspirational - Mrs Hearn sleeps on the floor next to his bed - but nevertheless Mr Hearn echoes the feelings of many with SCI when he says: "Survival is often just the name of the game."

Advances in technology are beginning to make a difference to those affected by spinal injuries, and it is to be hoped that one day science will provide real solutions. But for now, there is no quick fix. Those with SCI need help; their families need help; those working in this sector, to care for them and find solutions, need help too.

Please, therefore, share the website through social media and get in touch with the spinal cord injury charities involved in the campaign.

We must do our best to make a difference.

Friday, 10 May 2013

Thalidomide victims must not be forgotten

Recently I had the pleasure of meeting up with Michael Napier, who is well-known in the legal profession as the former senior partner of Irwin Mitchell. As well as being at the helm of Irwin Mitchell for 30 years, Michael has served the profession with distinction in a number of roles, including a stint as president of The Law Society. Today he continues to play a large part in the litigation sector, not least in his new appointment as Chairman of Harbour Litigation Funding Ltd.

Michael is as well placed as anyone to comment on the huge changes that the profession is undergoing at present. Our conversation ranged around a great deal of things, including the recent advent of the Jackson reforms as law in the form of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO). And in chatting with Michael, another thorny topic was covered: the public image of personal injury lawyers.

Too often, personal injury lawyers are cast as mercenaries who are only interested in their own profit. This stereotype is trotted out by the media on a regular basis. In the same way, the media - and many politicians - would have us believe, as a society, that we are awash with spurious claims; that vast swaths of the population litigate at the drop of a hat, spurred on by avaricious lawyers.

Duty before profit

The truth is very different. My firm's motto is 'duty before profit'. We believe in our ethical and professional duty to serve our clients to the best of our ability. So, too, do the majority of personal injury lawyers. Frequently, indeed, personal injury lawyers help people to obtain redress in circumstances where corporate indifference or resistance might otherwise see them left uncompensated.

Michael reminded me of a good example of this. Thalidomide was manufactured in the 1950s and was sold from 1957 until 1962. Initially used as a sleeping pill, its use morphed into an apparent panacea for pregnant women suffering from the effects of morning sickness. Tragically, though, it caused many different forms of birth defect.

Thalidomide was withdrawn from sale in 1962 after the link between its use and deformities - including shortened limbs, blindness, brain damage, missing sexual organs and missing internal organs - was conclusively proved. But as if its victims had not suffered enough, the past 50 years have been a different kind of battleground.

As Thalidomide victim Guy Tweedy, from Harrogate, said last year: "Thalidomide was not an act of God. It was a man-made disaster. For seven months leading up to the drug being withdrawn, UK government officials had been given compelling evidence that it was responsible for a large number of babies being born with horrific birth defects ... For the last 50 years we have not only had to live with the devastating effects of Thalidomide, but we have had to fight every step of the way for compensation."

Here, personal injury lawyers have played a role. They have helped maintain pressure on the German manufacturer of the drug, Grünenthal - which only last year managed to issue a public apology to Thalidomide victims. Personal injury lawyers have assisted people in obtaining compensation for this tragedy. They've not thought of their profit but of doing their best to ameliorate the terrible misfortune suffered as a consequence of Thalidomide.

Campaigning must continue

Campaigning for Thalidomide victims must continue. Many remain alive today and they need care, consideration and decent provision for their futures. As such, I applaud the work of campaign groups such as Thalidomide UK and ShowYourHand, to which Michael, who is a trustee of The Thalidomide Trust, directed me. And looking back, by way of countering the clichés that abound about modern journalism as much as in the law, the excellent Sunday Times investigation into Thalidomide should be noted. Not only did it reveal that basic testing had not been properly carried out before the drug went on sale, it also helped increase compensation payable by the UK distributor from £3.25m to £32.5m.

Post-Leveson and the phone hacking scandal, journalism's standing is perhaps at its lowest. But rogue and corrupt journalists are the exception, not the norm. Most journalists want to report the facts of an event and serve the public.

So it is in personal injury law. The overwhelming majority of people in this sector work there because they want to help people.

Here's hoping that Thalidomide victims continue to receive all the help they need and deserve - and that the clichés are replaced by the truth.


Friday, 3 May 2013

An ethical ABS is to be applauded - but there remain grave reservations about the regime

I've written previously of my reservations about the Alternative Business Structure (ABS) regime, first proposed by Sir David Clementi in 2006 and a fact of legal life for nearly a year and a half now. Because they enable insurers and claims management companies to own and invest in law firms, ABSs are the Trojan horse in the battle against referral fees. It seems that no sooner were referral fees been banned, than we have been confronted with the means to get round the ban and perpetuate the very problem the Ministry of Justice sought to curtail.

But last week, a story on the excellent Legal Futures website gave me cause for cheer. The Community and Law Service (CALS) in Leicester has become the first not-for-profit organisation to set up an ABS. CALS has been authorised by the Solicitors Regulation Authority (SRA) to launch Castle Park Solicitors Community Interest Company. Its profits will be channelled back into continuing the work of the charity.

CALS gets there first

Ethics book
Image by
CALS has beaten the application by Islington Law Centre to establish a not-for-profit ABS, which was made last November. Castle Park and CALS will not be sharing office space; from its premises, Castle Park will provide legal advice on family, immigration and employment law. Its intention is summed up by Glenda Terry, head of finance and administration: "We set it up because we wanted to have the facility to provide good-quality legal advice and representation mainly in the areas going out of scope of legal aid. We have pitched our fees competitively and hope it will be attractive to those on low to medium incomes."

This is a laudable aim, and one which will help to mitigate the effects of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), which, for me, remains one of the most poorly conceived pieces of legislation to have made it onto the statute books in recent years. Legal aid has been decimated by LASPO, so too the ability of solicitors to bring meritorious claims for impecunious clients. The emphasis is on commodification and wholesaling, rather than considering and caring for an individual's needs.

Helen Grant misses the point

It is no use hearing Justice Minister Helen Grant acknowledge that LASPO's reforms to civil justice will bring "some pain initially and uncertainty for a while." The fact is that LASPO's provisions will have a dire effect on those who need legal advice, making it commercially impossible for many solicitors to represent them.

At least, though, CALS and Castle Park have used the ABS regime to counter LASPO. Here, utilising the ABS model ensures that paid-for services are introduced alongside traditional free services. Castle Park will thus generate income for CALS, which offers free housing and debt advice. In time, it is hoped that CALS will become less reliant on government funding and grants.

The ethical underpinning of both CALS and Castle Park is welcome, not least as insurers continue to push for ABS status so that they can, in effect, become law firms themselves. The SRA has already approved the creation of Admiral Law and BDE Law, joint ventures between insurance giant Admiral and law firms Lyons Davidson and Cordner Lewis. Ageas, which jointly underwrites Tesco's car insurance policies, has set up a venture with New Law, the PI firm based in Cardiff. Direct Line has got an application for an ABS in the pipeline, and the SRA says there are 104 similar applications currently being processed.

Not only do such ABSs allow insurers to refer claims to lawyers, but conflicts of interest are surely inevitable in this changing legal landscape. It is only a matter of time before an ABS law firm represents a client who is insured by the parent insurer.  It will be interesting, when this scenario comes to pass, to see what the Justice Minister and the SRA make of it.