Despite barristers and solicitors up and down this country posting blogs about the importance of getting legal advice before touching litigation with a barge-pole, I am routinely approached by litigants in person – after their cases have hit the buffers in court.
Just the other day, I was telephoned by a landlord about the possibility of my help regarding several set aside applications where judgment in default had been granted.
The prospective client had just been to court the day before – and the judge sent him away, telling him to come back (better prepared) in two weeks’ time.
I said that I would need to see all of the papers in respect of each set aside application he wanted to make, and then I could give him advice. I gave him a reasonable fixed fee quote for that advice and said that on getting advice, he’d be in the position to make those set aside applications (if so advised!).
The prospective client said, “That’s easy”.
“What’s easy?”, I asked.
“Writing the application. I don’t need advice, I just need you to look over what I write and make sure it’s ok”.
If it’s so “easy”, why did the judge send him away for a re-think?
The conversation reminds me of someone trying to save money on a dental bill by drilling a hole in his own tooth and asking a dentist to “look over” his handiwork.
It also reminds me of three great blogs. The first comes from Eric Mayer’s, “Unwashed Advocate” and is titled: “Free Advice Du Jour: If The Call Starts With This, Hang Up Immediately”
“I was hoping you could just tell me how to (specific legal action*).”
*The specific legal function may be as simple as drafting a basic will, but it could be as involved as defending against multiple felony charges.
This person has no plan to hire an attorney. They will not spend $20 for legal representation any more than they would spend $20,000. The key word is “just.” Go back and look at the context of this weasel word. It, in essence, mandates “Give me the information I want, and I promise to end this conversation and never call again.”
What they don’t realize is that, if you were to fully explain how to do a particular legal action, you’d be on the phone with them for many, many hours as you explain the various permutations, contingencies, and possible/probable courses-of-action. There’s a reason that lawyers are part of a profession.
If they truly intended to hire a lawyer to shepherd their case, a potential client would never ask this question. After all, they would realize the answer to the “…tell me just how to…” question is “Hire an attorney to take charge of the case and guide it to completion.” The original statement is the functional opposite of “I need an attorney, are you available?” or “Will you take my case?”
Therefore, this statement tells you something very important within the opening seconds of the call. You are merely the extension of a Google search to this individual. In fact, they probably don’t even know who they are calling. If you allow the conversation to reach a polite and natural ending, I guarantee they will ask “Now, who am I speaking to, again?”
But was this potential client saying the “weasel word” and looking for a freebie?
Not really. He did want to hire me, but he didn’t want to buy what I was selling. Perhaps more importantly, I didn’t want to take the risk of doing only what he wanted (and I’ll return to the matter of risk below).
This made me think hard about Richard W Smith’s blog, “Good enough advice and the billion dollar opportunity mid-tier law firms are wasting”. Richard starts his analysis of his premise with three key questions:
- What are the points of disconnect between the client and the law firm?
- Why does the disconnect occur?
- What can law firms and their clients do to reduce the disconnect?
Among the report’s many interesting findings, the one that really stands out for me was the view of most in-house lawyers that, for the most part, solutions need only be “good enough”; provided they are delivered timely, and in a format that enables the in-house lawyer to make decisions quickly. But that, for the most part, in-house lawyers were not getting this service with most saying they received good legal diagnoses but very little by way of commercial solutions.
The findings here are reflective of what I heard Ann Klee, VP of Global Operations — Environment, Health & Safety, at General Electric Company say at a Big Law Business Summit in August 2015 – in describing how (in part) GE managed to reduce its outside legal spend by $60 million in a year – when she mentioned that the bottom line is that the role of a lawyer today is about managing more risk, it’s not about just being asked to do more for less, it’s being asked to do less with less.
So we are being told – by the clients themselves, from both sides of the Atlantic, that they do not need “gold standard” legal advisory services, but rather are not only happy to receive “good enough” advice, but would prefer it that way if the advice that was given was commercially applicable to them and provided in a timely manner (on this issue, see my recent post on ‘responsiveness‘).
And yet I have never seen any marketing or tender material produced by a law firm outside of the top tier in any country that says anything along the lines of “we are the good enough lawyers“. Conversely, I have seen more marketing material than any sane person should by mid-tier firms to the effect that “we provide top-tier gold standard legal advisory services at mid-tier [cheap] prices” – a service clients are repeatedly saying loud and clear that they don’t want.
To my mind, all of this adds up to be a massive billion dollar opportunity going to waste by any mid-tier law firm who would be happy saying to their clients (and, importantly, the clients of top-tier firms) “we’re the ‘good enough’ firm that will get you across the line at a fraction of the fee!“.
And I genuinely believe that the first firm that gets this – be it by unbundling, clause light reviews, collaborative teams, innovation, technology, knowledge sharing platforms, or a cross section of all and every, will make a motza!
Listen. I’m just as keen to “make a motza” as the next girl, but does “good enough” work for legal services?
Is the provision of legal services like doing a plumbing job – and am I selling gold-plated waste pipes?
I don’t think so. Unlike a plumber, I cannot guarantee that your waste will be flushed away.
Presenting cases to magistrates, juries or trying to achieve a settlement of a county court case is an art as well as a science. This is because my dealings are with human beings – and not infrastructure or machinery.
I can help you improve your chances, or advise you about your prospects of success, but no litigation / dispute resolution or criminal lawyer can guarantee an outcome.
At the risk of sounding like Donald Rumsfeld, here’s why …
How will I know what, “good enough” to get by is unless I do a deep analysis of the facts and law?
The risks of unbundling when there are a bunch of “unknown unknowns”
There are two major disincentives for marking a litigant in person’s legal work as proposed by this prospective client:
The first is Tinkler v Elliott  EWCA Civ 1289. The issue in that case was whether the requirement for a set aside application to be made “promptly” could be assessed in light of Mr Elliott’s “disadvantage” as a litigant in person and other personal challenges.
The answer there was, “no”.
I suspect that Tinkler also stands as authority for the proposition that a Litigant in Person isn’t going to get an easier ride, just because he doesn’t know and / or understand the law.
And when it all goes wrong and there’s been a lawyer involved, don’t be surprised if the client has buyer’s remorse. With that, I give you the cases of Mesdames Padden and Minkin…
Padden v Bevan Ashford  EWCA Civ 1616 is always at the forefront of my mind when dealing with potential direct access clients. Would it be a breach of my duty to a client not to give full advice, particularly where a client runs the risk of an adverse costs decision? In Padden, the court held that the solicitor, who thought she was doing what the client wanted, should have done more to protect the client’s interests.
While there is the Minkin v Lesley Landsbury  EWCA Civ 1152 case, where the Court of Appeal held that a solicitor on a limited retainer (very specific instructions to draft a consent order where legal advice on the deal had previously been obtained by another firm of solicitors) was not on the hook when the Ms Minkin later thought the deal she agreed wasn’t as good as it could have been and tried to blame the solicitor – the key point is that, unlike Ms Padden, Ms Minkin did have the benefit of a previous solicitor’s advice.
But some lawyers do agree limited retainers!
Yes, they do. And they are done to avoid a duplication of work. A classic example is Ms Minkin’s case where she had previously been given advice on and agreed a financial settlement – and it was clear to everybody that all she required was a lawyer to draft a consent order for the court’s approval.
Thus, in my opinion, the scope for limited retainers, especially for direct access barristers, is narrow.
Listen. I’d love to “make a motza”, but the risk of taking on limited retainers in all but exceptional circumstances is too high.
How do I propose to align what I’m selling to what legal services consumers are buying?
I wish I had the answer, because what I need to overcome is the University of Google, a Govian distrust of experts and the Solicitors Regulation Authority’s push to compel solicitors to publish their prices online.
Seth Godin might call this the “sort by price” model. Nothing else matters but, “how low can I go?”
All I’ve got is, “sort by delight” – the very thing Richard W Smith says “everyone’s doing” and that nobody really wants.
The final blog post is Seth Godin’s, “Sort by price is lazy”.
Sort by price is the dominant way that shopping online now happens. The cheapest airline ticket or widget or freelancer comes up first, and most people click.
It’s a great shortcut for a programmer, of course, because the price is a number, and it’s easy to sort.
Alphabetical could work even more easily, but it seems less relevant (especially if you’re a fan of Zappos or Zima).
The problem: Just because it’s easy, it doesn’t mean it’s as useful as it appears.
It’s lazy for the consumer. If you can’t take the time to learn about your options, about quality, about side effects, then it seems like buying the cheapest is the way to go–they’re all the same anyway, we think.
And it’s easy for the producer. Nothing is easier to improve than price. It takes no nuance, no long-term thinking, no concern about externalities. Just become more brutal with your suppliers and customers, and cut every corner you can. And then blame the system.
The merchandisers and buyers at Wal-Mart were lazy. They didn’t have to spend much time figuring out if something was better, they were merely focused on price, regardless of what it cost their community in the long run.
We’re part of that system, and if we’re not happy with the way we’re treated, we ought to think about the system we’ve permitted to drive those changes.
What would happen if we insisted on ‘sort by delight’ instead?
What if the airline search engines returned results sorted by a (certainly difficult) score that combined travel time, aircraft quality, reliability, customer service, price and a few other factors? How would that change the experience of flying?
This extends far beyond air travel. We understand that it makes no sense to hire someone merely because they charge the cheapest wage. That we shouldn’t pick a book or a movie or a restaurant simply because it costs the least.
There are differences, and sometimes, those differences are worth what they cost.
‘Worth it’ is a fine goal.
What if, before we rushed to sort at all, we decided what was worth sorting for?
Low price is the last refuge of the marketer who doesn’t care enough to build something worth paying for.
In your experience, how often is the cheapest choice the best choice?
How do barristers and solicitors enable prospective clients to, “sort by delight”?
Rather than the SRA defaulting to the know-nothing “sort by price” model, maybe solicitors and barristers should be take better care in the way we market ourselves.
Maybe, just maybe, the regulators, the professional bodies and the courts themselves should stop trying to sell DIY Law and explain that litigation and going to court is high stakes poker. Telling people about cases like Tinkler isn’t “scaremongering”. It’s fact.
Or maybe, because discourse is important, they should stop referring to prospective clients as “consumers”. I’m not a “consumer” of medical or dental care, I’m a patient.
You’re not purchasing my installation of your toilet’s u-bend. You’re asking me to, “fully explain how to do a particular legal action…as [I] explain the various permutations, contingencies, and possible/probable courses-of-action. (If you’re not now, you’ll be wondering why I haven’t if it all goes wrong and you need somebody with insurance to blame).
Maybe, somebody in a position or authority can explain that an experienced and qualified barrister or solicitor is, “worth it” – with some of the reasons why.
Why should the regulatory bodies and the courts do this?
I give you the contents of an email General “Mad Dog” Mattis wrote to a colleague regarding the importance of reading. Consider the following in light of “legal advice”:
We have been fighting on this planet for 5000 years and we should take advantage of their experience. “Winging it” and filling body bags as we sort out what works reminds us of the moral dictates and the cost of incompetence in our profession.
Embracing “good enough” and “buyer beware” legal services is tantamount, in my opinion, to “winging it” – with the real risk of costs consequences and ruined reputations to all involved.
But back to this phone call …
Before this phone call had finished, I’d already drawn a conclusion: He saw little/no value in legal advice. All he wanted was form-filling advice.
As marking someone’s drafting without the benefit of reading all of the papers is not something upon which I’m prepared to offer a quote, I wasn’t the right lawyer for him.
Which does make me wonder…
Is this why people turn to unregulated McKenzie Friends? And how should I market my practice to show that legal advice from an experienced practitioner is, “worth it”?