UK Law Articles
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The Value of Solicitors
Lawyers complicate things and draw them out, claims an academic.
Not so, says David McIntosh. We provide good value.
The Times. December 02, 1997
Professor Adrian Zuckerman's persistence in claiming ("No win, no fee, no solution", The Times, October 28) that civil litigation is expensive not because of court procedures but because lawyers have incentives to protract and complicate matters is sweepingly simplistic, and appealing to the uninformed. But it is also insulting to the vast majority of litigation lawyers whose livelihoods depend on their continually providing a value-for-money service.
He asks the Government to challenge head-on what he calls the "entrenched interests of lawyers", to ensure that legal fees are reasonable, predictable and proportional to the value of the issues at stake. But he fails to appreciate that day in, day out, experienced litigation lawyers advise their clients not to pursue or defend cases that are not worth the costs of doing so and that we know well the importance of the "costs equation".
Solicitors must, under their own professional rules, provide estimates alongside assessments of the merits of suing or defending from the onset, and regularly throughout litigation cases. We are not interested in selling unnecessary services. There is no long-term future in that.
Professor Zuckerman also makes play of the fact that defendants, unlike plaintiffs, will not be aided by the "no win, no fee" partial solution to the problems of funding litigation and to the threatened withdrawal of access to legal aid which may prevent many from asserting their legal rights. But those lawyers who specialise in civil litigation are already subject to marketplace value-for-money pressures.
Does he really believe the regular buyers of litigation services, particularly in the personal injury field, do not insist on value for money from the lawyers they regularly instruct? The trade unions, motor organisations, medical and other defence associations; professional indemnity clubs, insurers, pharmaceutical companies, banks and other regular defendants invariably maintain carefully chosen panels of solicitors used to working to strict pricing and service protocols (sometimes involving fixed fees and capping arrangements) and who would be quickly found out and replaced if they attempted to elongate and overbill.
No doubt, the Legal Aid Board from time to time has suffered from the fact that historically the lawyer it pays has been chosen less discriminatingly by the person seeking legal aid. These lay person choices have not always been wise. But from the perspective of a specialist personal injury practitioner with more than 30 years' experience, I can say that when too much hourly paid time has been invested, it is nearly always because of inexperience; not, as Professor Zuckerman suggests, because of self-servingness on the part of a time-recording lawyer.
This shortcoming is being addressed by the Legal Aid Board's moves towards supporting only "qualifying" firms so that the board will enjoy the same buying power as the other regular payers. Tightening the merits test for legal aid will, just as effectively as "no win, no fee", stop unmeritorious cases being run at public expense.
The clocking-up of too many hours, albeit less often than Professor Zuckerman contends, will be reduced once the vital element of judicial supervision in all civil litigation cases comes in as part of Lord Woolf's master plan improving civil justice procedure.
The innuendo of Professor Zuckerman's writings is that lawyers are resisting new practices and any method of remuneration other than hourly rates which, this Fellow of University College, Oxford, says, they manipulate.
Come off it, Professor Zuckerman. Stop pretending your academic investigations have established that lawyers are regularly cheating their clients. Why not give Lord Woolf's proposals - to which you have contributed, including that for fixed costs in low-value/fast-track cases, "no win, no fee" arrangements and a tighter legal-aid merits test - the chance to prove themselves.
And give the legal profession credit for its contributions in welcoming these changes, which will go a long way towards dismantling your hobbyhorse.
- The author is senior partner of Davies Arnold Cooper
