Australia-bound

Some half a year ago I wrote about the reasons for becoming a personal injury lawyer. Among them I cited the ability to right wrongs, the fact that PI law immerses its practitioners in the real world, and the constant challenges of this fast-evolving sector.

Given that I'm writing this blog about to depart for Australia you might think that regular travel is another reason to become a PI lawyer. I admit, as I'm about to board a plane to Australia, that lately I've seen a fair bit of the world. However, it’s not always like this – far from it, in fact. And this trip, to the national conference of the Australian Lawyers Alliance, will be the last for a while.

This time round, I'm travelling to Glenelg, in South Australia. This is a suburb of Adelaide and yes, I reckon that the weather will probably be better there than in Britain. But from tomorrow I’ll be wrapped up in the conference and preparing for my session at 4.45pm on Saturday. I'm speaking then about PI and litigation reform in the UK. This, of course, is a topic close to my heart - not least as LASPO enters its home straight.

The Legal Aid, Sentencing & Punishment of Offenders Act will become law on 1 April 2013. I will be speaking to conference attendees about the deficiencies in LASPO and ancillary changes, which I have often mentioned on this blog.

While in Australia I'm hoping to meet with various lawyers after the conference, by way of gleaning as much information about the legal profession and PI sector there as possible. In particular, I hope to discover more about the way in which outside ownership of law firms - pioneered in Australia - has panned out.

I’ll write about my trip as soon as I can. Please look out for the resumption of this blog in due course.

Postcard from Portugal

I'm just back from an interesting trip to Portugal. It was my first visit to the country, and I found it to be a charming, likeable place – and not just because of the glorious weather.

From our base at The Oitavos Hotel, near Cascais, my wife Susanne and I enjoyed a cycle ride to the beautiful beach of Guincho, some great swimming and a couple of whistle-stop tours of Lisbon and Sintra. Both are quite wonderful places, though our two days of downtime wasn't enough to do them justice. What was clear to me, though, was the remarkable courtesy of the Portuguese people. It's a quality that's ever so slightly tinged with melancholy (witness the tradition of fado music), but the Portuguese sensibility – putting a premium on good manners, warmness, and welcome – is undoubtedly very attractive.

I was in Portugal for a conference hosted by the New York State Bar Association in Lisbon. It focused on various legal issues but my role was to speak about Alternative Business Structures (ABSs) in the UK. This I did at a plenary session last Saturday morning, chaired by Kenneth G. Standard of New York firm Epstein Becker & Green. Ken was an impressive character. Able and charismatic, he managed the session very well and also, via initiatives like a breakfast meeting for attendees, ensured that the session was effective and productive.

It was interesting to encounter the American view on outside ownership of law firms. As with so much of American life, debates take place on a federal level. Often, consensus isn't across the board; it's more a case of each state having its own view. When it comes to law firms being taken over, or invested in, by non-legal businesses, there did, though, seem to be a consensus. With the exception of the District of Columbia, the American view is hostile to outside ownership. There's a great deal of nervousness about the possible compromise of professional standards, independence and ethics. The worry is that the primacy of the clients’ interests will be sacrificed in favour of shareholder value.

As regular readers of this blog will know, I am  open minded but sceptical about ABSs and outside ownership too. However, as one or two participants, speaking from the floor, observed, to try and resist the influx of outside interests is rather like King Canute's attempt to quell the sea. The tide of change is on its way; as one American attorney said, we'd better get used to it.

That said, I think it's salutary to remember what brought about change in the UK. The ABS regime is a direct consequence of the reforms proposed by Sir David Clementi. Those reforms – which include the enactment of the Legal Services Act 2007 and the creation of  the Legal Services Board came about because of the perception that the provision of legal services in Britain was byzantine, fragmented and failing. There was a perception that the legal profession had become protectionist and restrictive. The public was not getting the profession it deserved.

Reform has arrived here in Britain, and although I have sympathy with the nervousness of my American and Portuguese counterparts I believe that their resistance to change can only be justified if what they are seeking to preserve is beyond reproach. Thus, in the same way that here we must insist that strictly ethical behaviour and principles underpin ABSs, so too must overseas lawyers look squarely at their profession and be satisfied that they act, at all times, not just in accordance with the law but ethically and professionally too. Only in this way can they - and we here in Britain, where change is not just in the air but on the ground - ensure that he who pays the piper doesn't call a discordant, morally dubious tune.

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.

Thoughts on whiplash on the eve of the Expert Witness Institute conference

Tomorrow I will be attending the Expert Witness Institute (EWI) Annual Conference at Church House Conference Centre in the heart of Westminster. This year’s Conference is themed around the implementation of Lord Jackson’s reforms in April 2013. The reforms have long been in the offing, and it’s no exaggeration to bill them – as do the EWI event organisers – the ‘Big Bang’. Lord Faulks QC’s ‘view from the House of Lords’ of the reforms should be particularly interesting.

But if April 2013 is set to yield seismic changes to the civil litigation landscape, I hope that the same isn’t true when it comes to our treatment and sympathy for whiplash injuries. As I have noted before, an unruly bandwagon is being piloted by an alliance of insurers, government and certain newspapers to convince us that whiplash is an invented condition. If the bandwagon isn’t stopped, it will career into whiplash victims and ruin their ability to obtain redress.

I hope to raise this issue at the conference, especially when I join EWI director Nick Addyman, EWI fellow Dr Keith Rix and Brian Gardner FRCS in a ‘medical breakout’ session. We’ll be debating topics dear to our hearts; the prejudice against whiplash is certainly one of mine.

However, before reiterating some of my beliefs about whiplash, perhaps I should first make clear that there is common ground here. I and other claimant PI lawyers agree with insurers that there is an opportunity for fraud in the current system. So, too, do we agree that fraud contributes to the rising cost of motor insurance. We also welcome the government’s wider interest in the motor industry and the myriad of factors that could contribute to lowering the cost of motor insurance, including education, training and monitoring for new and young drivers. 

But the myth that whiplash is not a genuine injury has got to be scotched. Whiplash is real and there is a wealth of evidence that demonstrates its potentially debilitating impact and long-term consequences.  The government’s proposal to increase the small claims limit in personal injury cases from £1,000 to £5,000 cannot but have a devastating effect on whiplash victims. It should be remembered that this idea was consulted on at length and rejected by the Ministry of Justice on the grounds that it would stop genuine accident victims from receiving justice.

Moreover, reducing legal fees to an artificially low level – as is also mooted – may have the unintended consequence of lowering the quality and standard of representation in whiplash cases. It could also lead to legitimate claimants having to fight for compensation without legal representation, therefore eroding access to justice.

Finally, imposing an arbitrary accident speed (e.g. 15 miles per hour) below which a claim cannot be made has little medical foundation, as serious injuries can occur even in low speed collisions. In addition, satellite litigation and unnecessary costs may be generated by arguments over evidence of exact speeds. One can well imagine endless and costly debate over whether a claimant was driving at 15mph or at 14mph. Technology such as telematics could have a role in reducing fraud and bringing down the cost of motor insurance in the future, but it is not a panacea. These schemes are currently unproven and cannot be relied upon as an absolute measure when all circumstances and individuals are different.

So much for the laments. Do we, I hear you ask, have any solutions? We do. Take a look at the 10-point plan for eliminating fraud produced by the Association of Personal Injury Lawyers. Some of APIL’s ideas overlap with mine, which appear below:

• There needs to be better co-operation between all affected parties to clean up the sector. We need a holistic approach involving government, insurers, the car industry, accident victims, medical professionals and legal professionals.
• There should be compulsory medical examinations. No whiplash claim should be settled without a medical examination. In other words: no medical, no damages. This would help to reduce fraudulent or exaggerated claims.
• There must be robust regulation of claims management organisations. This would reduce the negative impact they have on the industry.
• Better enforcement of data protection legislation is desperately needed. This would prevent the misuse of customer data, which concerns consumers and brings the industry into disrepute. It would also curtail the use of unsolicited marketing to encourage people to take up fraudulent or exaggerated claims.
• Better regulation of insurance companies is needed to stop sharp practices such as third party capture (pressuring claimants to settle before the case has been fully considered).
• The sector needs to work with medical organisations to develop better knowledge and understanding of what soft tissue injuries can be caused by motor accidents and to ensure that medical examinations and reports are substantive and objective.
• There must be continued improvement in vehicle safety to reduce and prevent head and neck injuries.

I’d be delighted to discuss any of this at tomorrow’s conference, or via comments to this blog.