THE ROLE OF THE SOLICITOR IN PERSONAL INJURY LITIGATION: IDEAS TAKEN FROM THE SECRET BARRISTER
There was a tweet yesterday from someone (a non-lawyer) asserting that personal injury lawyers did not need to know the law. His purpose, I suspect, was to lead on to an argument that the work could be done by someone like him. (Kerry Underwood’s phrase “people who want to be lawyers but can’t be bothered to pass the exams”). I am currently collecting contributions from lawyers on Twitter as to the vast deal of substantive legal knowledge personal injury solicitors (and Legal Executives) need to know to do the job properly.
There is no one in the civil system doing the same job that the Secret Barrister does in criminal. However I think it is important that we look at what the Secret Barrister had to say about solicitors who practice in criminal litigation. The “perverse incentives” SB describes are, unless real care is taken, likely to become a commonplace of the personal injury litigation system.
THE SECRET BARRISTER ON SOLICITORS
Most of the media focus on criminal law is on the advocates. However SB points out the reality is vastly different:
“… the vast bulk of the work in most criminal cases will not be done by the advocate creaming the credit at the end of the trial, but but the litigator. The solicitor.”
SB is writing about criminal litigators, however we could just as easily insert most (if not all) areas of litigious practice. Writing about the solicitor SB continues:
“Their existence is critical to ensuring that the adversarial system functions as it should. And they are often underappreciated as much by the Bar as the public.”
AND READ ON
“When defence solicitors are able to do their often grim and thankless job properly, it makes us all safer. The chances of the innocent being convicted, perhaps while the real culprit remains at large, are decreased. Good defence solicitors keep the prosecution honest. And they keep the system honest.”
SB describes the pressures put on solicitors to persuade clients to plead guilty at the earliest opportunity
“… good solicitors have stood firm and made plain, in person and through their professional bodies, that they will not collaborate in this parody of justice. They have been relentless in resisting the state’s efforts to save costs by diminishing the core principles of our justice system. They defy the prevailing judicial orthodoxy that more convictions and more guilty pleas, rather than the quality of justice, are the benchmarks by which our system should be appraised.”
THERE IS AN ICEBERG AHEAD
The ability of publicly funded solicitors to do their job is increasingly under peril from costs and unregulated “pirate” firms. They are subject to unsustainable pressures.
One of these is the “fixed fee”. This “often does not reflect work actually done”. The hourly rate, properly calculated for the work done, is about £16 an hour. A barrister appearing in the Crown Court may end up working at £3 an hour. SB states:
“… consider the perverse incentives deliberately engineered by the system…”
Criminal defence representation rates are about one-tenth of those of an electrician.
“And, of course, in the fixed fee model, each phone call made to the CPS chasing evidence, each fax repeating a disclosure request, each letter containing polite reminders to comply with court directions, each case management hearing and each futile adjournment represents an added expense for which the solicitor is not reimbursed.”
WORKING FOR LESS THAN THE MINIMUM WAGE
“If you were wrongly accused of an offence, how confident would you be of the quality of your representation if you know that their hourly rate was below minimum wage”.
THE IMPORTANCE OF THE LITIGATION SOLICITOR (AND THE DANGERS OF FIXED FEES)
I don’t want to dwell on the dangers of fixed fees (because there are dangers which reformers blithely ignore). The central point of this part of the review is the central role of the litigation solicitor. SB says he couldn’t do their job. I actually have been a litigation solicitor and SB is right to emphasise how hard a job it is.
THE LAW OF UNINTENDED CONSEQUENCES (AND THE UNINTENDED CONSEQUENCES OF LAW REFORM)
“Most firms are staffed by dedicated professionals who fight unyieldingly to safe-guard the interests of their clients in the face of appalling systemic conditions. But the very real risk is that in increasing their workloads and decreasing their derisory fees, the good defence solicitors are going to fall by the wayside.”
This, in turn, will lead to the public being at the mercy of a category of firms, now in a tiny minority, that are “amoral charlatans practising at law… Every aspect of their existence – their modus operandi, the people they employ, the values they embody was unyieldingly foul.”
On re-reading the book, it is clear that there are dangers ahead. Unless the profession – and more significantly those responsible for the reform of costs – are very careful this type of firm (now extremely rare) could well the lasting legacy of the Jackson reforms and the introduction of fixed fees in the county court.