Channel 5’s idea for a PI lawyer 'Dragon's Den-type programme' belongs in the bin

Last week, Litigation Futures ran a piece that a number of lawyers wanted to believe was a premature April Fool’s story. Sadly, I know from my own personal experience that the story is not a hoax.

Step forward, Channel 5, which is considering what legal journalist Neil Rose described as "a Dragon's Den-style TV programme in which potential claimants try to persuade a panel of lawyers of the strength of their claim."

Yes, that's right. The channel's in-house development team has come up with the idea of a reality TV show for the personal injury sector. Its letter, circulated to a number of PI firms (including mine), set out the nuts and bolts of the idea:

"Members of the public (potential claimants) would attend a clinic like setting and then discuss their cases with four of the UK's leading personal injury/negligence lawyers. These cases would range from personal injury to medical negligence to consumer complaints and small claims.

"The contributor presents their case individually to the each of the lawyers, along with any evidence - photographs, home video, medical reports etc. It is here that the lawyers have the chance to question the claimant and establish the true evidence of the case.

"The lawyers must be ruthless in their pursuit of the truth if they're going to weed out the genuine, watertight cases of real affected claimants from those who are unreasonable, mislead or simply chancers trying their luck."

Touching faith?

In some ways, it's tempting to thank Channel 5 for the faith they evidently have in PI lawyers' televisual appeal. It seems they imagine that out here in the real world of toil for injured clients, there is a Duncan Bannatyne among us, or, perhaps, a Karren Brady (panellist from The Apprentice), a lawyer of such charisma (Perry Mason, perhaps! Or Rumpole!) that he or she will hold viewers' attention and help turn the show into a must-see hit.

Channel 5's understanding of the legal process is also almost touchingly naïve. What do its creative minds think will happen to claimants, whose claims have been aired on television, but rejected? Have the words 'conflict of interest' ever been uttered in a Channel 5 commissioning meeting? What of defamation, as claimants lay the blame elsewhere?

But although such thoughts might prompt a wry smile, we should resist too light a response to this idea. The reason is simple. It flies in the face of the notion of justice.

The law is not a game. It's not light entertainment. People who have been hurt in accidents aren't fodder for a television show. They're real people who are often fragile and vulnerable. They need help. They need to instruct a solicitor knowing that he or she will do his or her utmost to investigate their claim and obtain the right compensation. The process of instructing a solicitor should not be turned into a sideshow, one of needless extra pressure accompanied by the whir of television cameras, shouts of 'cut' and requests for 'another take, please'.

Into the bin

Some time ago I wrote a blog about why I became a PI lawyer. There were a number of reasons; perhaps the key ones were wanting to help people and having a passion for justice. Nowhere on my list did the phrase 'opportunity to appear on TV' appear.

As if civil justice isn't under enough threat at present, along comes Channel 5 with its bone-headed idea. The channel's letter went straight into the bin at Spencers. I hope my colleagues in other PI firms up and down the country, large and small, will have the same response.

Shine's interest shines a light on a UK market that is ready to talk

I was intrigued by a recent piece in The Lawyer about Australian interest in the UK legal marketplace. You can read the piece here. It explains that newly listed firm Shine Lawyers is looking at moving into the UK market. If it does, it would follow in the footsteps of Slater & Gordon, another heavyweight, and listed, Australian firm.

Shine has an alliance with environmental
advocate Erin Brockovich

Shine is valued at A$155m, after joining the Australian Securities Exchange in May this year. The very well regarded firm - which has a 10-year alliance with high-profile environmental advocate Erin Brockovich (yes, she of the Julia Roberts film) - made clear its ambitions for the UK in its IPO, signalling that its aim to expand globally would meet its first targets on these shores.

Antipodean enthusiasm

The firm's managing director, Simon Morrison, told The Lawyer that Shine was looking at acquiring "damages-based plaintiff litigation firms" here. "We have been looking at the market for the past few years and has done due diligence on a number of firms. But at the moment we don't have a time frame for the entry and haven’t decided on a target yet," Morrison said.

At first blush, it's tempting to wonder if Antipodean enthusiasm for the UK legal market is sensible. Certainly, there must be those who might suggest that Morrison has got it wrong, given the massive changes to civil litigation that have occurred in the wake of the Legal Aid, Sentencing and Punishment of Offenders Act (which became law last April). Moreover, as I wrote earlier this week, legislative change is not confined to LASPO: the Enterprise and Regulatory Reform Act, which recently received royal assent, is also set to introduce seismic eruptions to our legal landscape.

But actually, Morrison is onto something - and not just because of commonalities between Australian and Britain's developed legal systems. These are a great help, so too is something we can all take for granted: English as a common language. But there's another reason for Morrison, and, presumably, well-placed competitor firms in Australia, to be eyeing up the UK.

The UK market is ripe and ready

Post-LASPO, our law firms are facing a considerable challenge. The Act was introduced with the aim of curtailing what were perceived to be out-of-control litigation costs, but whatever its intent the reality has not been properly thought through. Put simply, LASPO's many changes will make it harder and harder for law firms to run cases professionally and commercially. At one end of the scale, high street firms existence may be challenged; at the other, national firms will see plummeting net profit margins, at least in the short term. The extraordinary and ongoing erosion of legal costs seems to pay no regard to the fact that maintenance of professional standards comes at a price.

In the middle, there are a great many firms who conduct and rely on claimant personal injury work, who when it boils down to it face one of two choices, or some combination of the two: to become niche, or to consolidate. The former will have to become lean and efficient if they are to survive (the real risk is that some will not maintain high professional standards) . The latter may conclude that only merging will see them still in business by the end of the present decade.


Morrison and his colleagues at Shine are wise to look to the UK. UK litigation firms, save for the already niche or the already huge, will be in the mood to talk.

Lisbon-bound for the NYSBA seasonal meeting

Today, I’m Lisbon-bound for a conference hosted by the New York State Bar Association at the Pestana Palace hotel. By all accounts this is a fine, city centre hotel, though I’ve opted to stay away from the hustle and bustle at The Oitavos Hotel, some 40 minutes drive from Lisbon.

This is my first trip to Lisbon, and next week I’ll post a snapshot of my impressions of this venerable and historic city. As I write, however, the task in hand is preparing a short speech I’ll give on Saturday morning, as well as a panel discussion. Between 9.00 and 11.00am, debate will centre on Alternative Law Firm Structures around the world, in a plenary session chaired by Kenneth G. Standard of New York firm Epstein Becker & Green. Other panellists include Vasco Marques Correia, the president of the Lisbon District Council of the Portuguese Bar Association; Junlu Jiang, of King & Wood Mallesons, Beijing; and Steven Younger, from Patterson Belknap Webb & Tyler LLP, New York.

I will be talking about Alternative Business Structures (ABSs), first proposed in Britain six years ago by Sir David Clementi, then given statutory footing in 2007 by the Legal Services Act and finally ushered in by the Solicitors Regulation Authority earlier this year. ABSs were much touted prior to their arrival as heralding a brave new world that would be of great benefit to consumers. They would allow non-lawyers to own and invest in law firms, thus revolutionising the legal profession because clients would have a cheaper, one-stop option for their legal needs.

Among those who sounded cautionary notes about ABSs were sole practitioners and small firms, who were wary of the notion of ‘Tesco law’ and ‘one size fits all’ for legal problems. I was also dubious about ABSs given the way in which they could be deployed to circumvent the Ministry of Justice’s  ban on referral fees in personal injury cases to be implemented in April 2013.  Because ABSs enable insurers and claims management companies to own and invest in law firms they can sidestep the MoJ’s efforts. It cannot be good for the consumer for a culture to arise which sees insurers start handling PI claims from start to finish.

In Britain, the take-up for ABS licences has been relatively slow, but the bandwagon is moving. More and more law firms are set to form alliances with other businesses, creating more ABSs. I do not object per se to the idea of ABSs, provided not only that a watchful eye is maintained on their ability to sidestep the ban on referral fees but also that the profession as a whole abides by its age-old principles. By this I mean that professionalism and ethical conduct must not be allowed to play second fiddle to the commercial dictates of outside ownership or too obsessive a focus on shareholder value.

The danger, with ABSs, is that he who pays the piper calls the tune. As lawyers, our tune must sing to the client’s good, first and foremost. ABSs are acceptable, so long as this is not forgotten. This is the most serious issue for debate.

Postcard from Berlin

Towards the end of last week I found myself rushing to catch a plane to Berlin. I duly checked in to The Westin Grand Hotel on Thursday evening, the reason for my visit being the 15th anniversary annual conference of PEOPIL.

PEOPIL is the Pan-European Organisation of Personal Injury Lawyers. The conference began at the Westin Grand on Thursday morning, which meant that I missed its first day, but there remained two days in which a number of topics dear to those who work in the PI sector were covered. They ranged from talks about the recovery of punitive damages in European courts and the use of medical experts to an excellent presentation on establishing jurisdiction by Philip Mead of Old Square Chambers.

However, rather than remark on the technical matters discussed at the conference, I hope regular readers will allow me to make a few general observations.

First, the power of Twitter was harnessed to great effect at the conference by no less a figure than Gerard McDermott QC. In between tweets wishing the Cambridges luck in their privacy action and commending the Times’ coverage of the UBS trial McDermott QC – a leading barrister at Nine St John Street and Outer  chambers – urged more PI barristers to attend conferences like PEOPIL (he observed that only himself and Philip Mead had made the trip) and noted a number of interesting points, for example concerning “conflicts between Hague Convention and Rome II regulation and opportunity for forum shopping”.

As well as updating followers on what was happening at PEOPIL, McDermott, who specialises in medical malpractice, product defects as well as catastrophic road traffic accident litigation, added a few snapshots of Berlin. We saw the Brandenburg Gate and also learnt that “The Westin Grand in Germany is a truly Grand hotel. Built by East Germans before unification. I think to show what they could achieve.”

Twitter-speak doesn’t allow for fulsome descriptions, but I can endorse what Gerard McDermott said about the Westin Grand. It’s a truly remarkable place, located in Berlin’s historic centre. It oozes atmosphere and has possibly the most efficient and friendly staff I’ve ever met. The Brandenburg Gate is nearby, so too many other historic locations – the Reichstag building, the Potsdamer Platz, the Gendarmenmarkt and Museum Island. Berlin’s transformation following reunification in 1990 means that the area is also full of elegant boutiques and designer shops.

I visited another nearby famous place – Checkpoint Charlie, the best-known Berlin Wall crossing point between East Berlin and West Berlin during the Cold War. While once a symbol of repression, Checkpoint Charlie is now a major tourist attraction, surrounded by souvenir stands selling all manner of tat (especially fake military items). I have to say that I wasn’t hugely impressed by this aspect – it reminded me a little of the anti-climax of visiting Land’s End – but it is nevertheless impossible not to be moved by even a fleeting visit to Berlin, replete as it is with so many landmarks of European history.

Towards the end of Saturday my visit came to an end. At Tegel Airport I experienced something unusual – German inefficiency. I managed to board my plane, which departed at 5pm, but I had cause to wish that the staff of the Westin Grand were working at the airport. The atmosphere verged on mayhem and I seriously doubted I’d get through security and make my flight, but back in Britain I was hardly consoled  by Chelsea’s 0-0 draw at QPR. By all accounts it was an even game, with my team playing effectively to secure a point. Here’s hoping that effectiveness makes for three points in the next game – and here’s to widening Gerard McDermott’s plea: it’s not just more barristers who should attend conferences like PEOPIL, it’s solicitors and everyone who cares about the future of PI law.

Post-Chicago Musings

Last week my first overseas blog appeared. It came all the way from Chicago, Illinois, where I was attending the American Association for Justice annual convention. This week’s blog again has an American flavour, as I reflect on lessons learnt during my stay at the Chicago Hilton, where the conference was held.

I’d like to add to the two general points I made last week (that wherever one finds oneself in the world, claimant lawyers are engaged in an adversarial battle with insurers, and that claimant lawyers here and in America seem to be up against a legislative drive to reduce or cap the costs they can recover). In a sense, what I am going to say is also a general observation, but nevertheless I think it’s an important one.

Put simply, I think that rather than knocking the American litigation landscape we should look at it objectively and ask if it has a thing or two to teach us. I think it does, for reasons I will explain.

The British tendency is to categorise American lawyers as ambulance chasers (or worse). Our press regularly skews coverage of American legal proceedings to paint a picture of a system in which pre-trial jury selection is bizarre, and where US lawyers habitually exaggerate or even invent claims. But while there is rarely ever smoke without fire – some claims about the excesses of American lawyers are undoubtedly true – if you scratch a little deeper there is much to be said in favour of the American way.

The main reason I say this is because the American system is underpinned by a belief that the client comes first. An American claimant who secures recompense for an injury is not condemned as being part of a ‘compensation culture’. Instead, it is accepted and understood that a claimant’s lawyer will do everything in his or her power to gain as much as is properly due for a client. The client’s needs come first, which means that no stone is left unturned in the preparation of a case. Yes, this dovetails with a financial incentive for the lawyer involved, but in America there is recognition that lawyers have businesses to run. That they might make a profit is not viewed as something wrong and unpalatable.

Contrast the way in which civil litigation has developed in Britain – and the way it is heading. Recent years have seen successive reforms which, put together, make it harder and harder for British solicitors to represent clients to the best of their ability. There is a sense, here, that lawyers who make a decent living are somehow ‘evil’, that they fuel the ‘compensation culture’ which is so hated by the government.  This also leads to a very worrying knock-on effect for clients potentially, in creating an environment in which early settlement, at a fraction of what a client could have obtained in damages, will be become difficult to resist. There is some statistical  evidence of this which has recently been presented to the Ministry of Justice by Professor Fenn.

The emphasis, here, is on getting rid of claims quickly, at low cost. In America, the focus is on getting the right result. Here, the beneficiaries of the system can be insurers; in the States, the client’s case is the main thing, and is never or at least rarely sacrificed..

Doubtless there are issues with the American personal injury system. As I say, the point I am making is a general one. Likewise, the way we do things here is not all bad. But my trip to America reminded me of the real role of the personal injury lawyer: to serve injured people. I think we would all do well to remember this rather than uncritically accept governmental  soundings off about the ‘compensation culture’.

Or, put another way, if you were the victim of a serious accident, through no fault of your own, would you rather obtain the maximum compensation to which you were entitled – or settle the case early so that the insurers didn’t have to make a hefty payout?

Looking back on the ideology of the law

I was pleased to see a number of comments to my post last week, in which I argued that being a PI lawyer is a rewarding and fulfilling occupation rather than the selfish, profit-driven role of media cliché. Since writing that piece, I’ve been thinking about what draws people to the law as a career. Are there lessons to be learnt if we cast our minds back to what propelled us into the legal profession in the first place?

My story is perhaps typical, in that I wasn’t motivated by ideology pure and simple. But it’s also typical, I think, given that when I look back on it, I realise that an ideological commitment was present, if ill-defined, by dint of the very nature of the law.

I qualified as a solicitor in 1985. My entry into the law came via a mixed social sciences degree at Hatfield Polytechnic. My first love was economics, which was part of the degree, but as time went by I found the maths involved more difficult. Law, though – which was also part of the degree – came more easily. I gravitated increasingly to law and then discovered that if I majored in it I was deemed to have completed what was then known as the ‘Part 1’. (Qualifying as a solicitor entailed Parts 1 and 2; compared with today, passing Part 1 was the equivalent of completing a law degree or the Common Professional Examination.)

I went on to complete Part 2 (the equivalent of today’s Legal Practice Course) at Leeds Polytechnic. For a time, I flirted with the idea of becoming a barrister, but ultimately settled to the solicitor’s calling. The reasons, when I look back on it, dovetail with the points I made in last week’s post. Early on in my articles, I realised that being a solicitor meant helping people. They would come into the office with all manner of problems, and the solicitor’s job was to help them find solutions. The work was meaningful and interesting, and it meant being intimately involved in people’s lives.

Many years have since passed. I have worked primarily as a litigator throughout my career, with two abiding specialisms: child care and PI law. I also enjoy the business side of the law, a factor which has been instrumental in a previous role in one firm as managing partner and which now provides a large slice of my day’s work at the helm of Spencer’s.

But if ideology was not a core driver when I joined the law, it was nevertheless key to every lawyer’s practice when I entered the profession. Lord Benson’s principles of ethical behaviour were second nature. They were inculcated at degree level, throughout articles, and by one’s peers as one’s career developed. What happened, then, was that ideology was absorbed as if by osmosis. Solicitors were trained to put the client’s needs first, and think of their own profit second. Of course, some solicitors bucked this trend, but I strongly believe that the majority epitomised Benson’s ideal that ‘ethical rules and professional standards ... should be higher than those established by the general law’ .

Things are different today. All manner of incursions have been made into the law as it was 30 years ago. The ABS regime is the most obvious, but it is part of an overall commodification of legal services – the ‘Tesco law’ blueprint which threatens to alter the legal landscape beyond recognition. I strongly support greater efficiency, eradicating all waste and moving with the times, but this should never be at the expense of professional standards.

When I look back on my decision to join the law, I realise that one of its prompts was pragmatism – the sense that here was a good career, which would provide me with a living. But why was the law so obviously a ‘good career’? I think it had this flavour because of the way in which solicitors conducted themselves, because of the sense of duty and service that went with the territory.

Ideology, then, was there all along, and as we look at the many changes to today’s legal landscape it strikes me that it would be no bad thing if it were foregrounded for today’s young lawyers. Lord Benson’s principles should become second nature to them as much as they were for those of us who entered the law two decades or so ago. 

Why become a personal injury lawyer?

In America, the ambulance chasing personal injury lawyer is a staple of press vilification and TV caricature. Here the portrayal isn’t quite as negative and all-pervasive, but we personal injury lawyers are sometimes tarred with the same brush as our transatlantic brethren. The media likes to depict us as ruthless and aggressive, a breed of lawyer who, if at the scene of an accident, only sees pound signs flashing. Why, then, become a PI lawyer?

There are plenty of reasons. The first is that the stereotype is wrong. Granted, some PI lawyers are unscrupulous and money-minded, just as the same can be said about some doctors, or accountants, or architects, or anyone in any of the professional services. But most of us enter this sector of the law because we’re motivated by a number of things that have nothing to do with money. Here are a few:

• PI lawyers are passionate about justice. We see people who have suffered injuries through no fault of their own, and we want to help them obtain redress. No wonder that PI law is a branch of tort law, and that the word ‘tort’ is French for ‘wrong’: we’re in the business of trying to right wrongs.

• People are what PI lawyers are about. We’re naturally curious, gregarious types. We like meeting people. We care for them. That’s why we like acting for the individual rather than corporate entities. For us, there is a huge amount of satisfaction to be had from seeing a client’s case through either to victory in court or a satisfactory settlement.

• A motivation for a great many PI lawyers is that they will spend their working lives immersed in the fabric of life, not buried in documents – as is the case for lawyers in other areas of the law. If you work as a PI law you won’t spend all your time swamped by paperwork.

• But so too is PI law challenging. If you enter this area of legal work, you will never be bored. There are cutting edge developments all the time and you won’t lack for intellectual stimuli. 

• Because PI law is so enmeshed in daily life, you learn something new every day. What you learn can be applied to your own life. It will make you more aware of your rights and responsibilities, and better able to make informed choices and decisions. 

• Perhaps more than any other sector of law, PI law is about communication. It’s about argument, too – for example, your client’s claim will be opposed by insurers. Working in PI law therefore means that you’re always on your toes as a communicator and an advocate. These are transferable skills that you can apply across the board in your life. 

• Above all else, PI law is about passion – passion for justice, for helping people, for doing the right thing; passion for its unique mix of law and practicality and for the chance to make a difference.

If the above resonates, you might be just right for PI law. And if so, ignore the ambulance chasing tag. It’s a tired old cliché. The truth is that duty comes before profit. This should be the motivation for every lawyer, not just those of us working in PI.