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Archive for March, 2007
So that’s that, then. The Law Society takes advice on a last minute injunction to halt the process, but is advised against it. Partners’ arms are twisted. Deadline passes, contracts are signed or not.
So we’ll stagger, somewhat shellshocked, into next week with three questions awaiting answers.
1. What is actually going to happen around residual matters?
2. Is the scale of non-signing low enough to allow the LSC to claim business as usual? What level of loss would be fatal to the project? It is hard to say but my gut feeling is that anything over 30% would be not only disastrous but beyond the capacity of the remaining firms to absorb, thereby finishing off the LSC’s insistence that provision to clients would not be affected. And what happens if, as seems likely, there is significant regional variation? A national headline figure could well be a smokescreen for virtual collapse in some regions. Can the LSC assert sufficient capacity in those circumstances? It would probably try.
Given the valid points made by the Law Society and others about the level of commercial uncertainty affecting firms ability to get financing, it will be difficult for remaining firms to obtain capital to expand into any voids. This was always the problem with the LSC’s preferred ‘large firm’ vision, but even more so now.
3. What will be the outcome of the Law Society’s application for Judicial Review? It doesn’t touch on some of the real problems of the proposed reforms, of course, but should the contract be found unlawful, would it mean a fresh round of signings? Or merely the amendment of the existing contract for those who have signed?
There is another question, but not one that will be answered in the next fortnight. Will the relationship between the LSC and providers ever recover to something approaching workability? There is no short term anwer here, but at this point, the answer would look like no. Even the signers have done it with great reluctance/with gritted teeth/under protest (pick the cliché of your choice), knowing that they are going to be screwed over gain in short order. For some firms this is simply buying time in order to work out their exit strategy.
The LSC has come out of this appearing to:
- fail to listen to valid commercial and practical concerns,
- steamroller dissent,
- be incapable of producing a finished contract in time,
- utterly mismanage the contract signing process and misrepresent the situation.
- place itself in an utterly antagonistic relationship to suppliers,
- lose some key leading firms to legal aid, including ‘preferred supplier’ pilots.
This will take some living down, to say the least, whatever happens in the next fortnight or so.
It isn’t even as if the LSC can claim to be administratively competent in its day to day operations, which might have given it a faint moral edge in the insistence on efficient practice by suppliers. What’s the administrative budget of the LSC? In the region of £92 million?
Tomorrow, 30 March, is the deadline for signing the Unified Contract, even though the contract itself is actually unfinished.
Yesterday, the LSC attempted to turn the screws by sending a letter (PDF) to suppliers which effectively accused the Law Society of scaremongering and claimed, astonishingly, that some contentious clauses in the new contract are the same as the old contract. The Law Society responded angrily and, judging by the emails I have seen, firms are more than a little incredulous. The Law Society Council tonight topped this off with a unanimous vote of no confidence in the LSC’s decision to implement the contract.
There have been firms and Not-for-Profits meeting with Vera Baird, letters to the DCA and LSC aplenty.
The signing situation seems to vary by area both in London and nationwide. Julian Beard of Osbornes speaks for many when he talks about waiting until the last minute and seeing what the others do. But given the crapness of the LSC’s fax machines, I’ll bet there will be some accidental non-signers…
However, the lists of non-signers are growing, and amongst them are many firms and even some not-for-profits in my geographic and legal area.
In those particular London boroughs, both right at the top of the deprivation scale, I would estimate that a minimum of 60% of legal aid housing capacity will be gone on Monday 2 April unless something happens tomorrow or Monday. That estimate is probably on the low side - I am figuring in last minute switchers and the “probably won’t” as signers.
I am less sure about family etc. in the same boroughs, but it looks like roughly the same percentage.
It is also worth noting the irony that the large firms are the nay-sayers. The LSC wanted to get rid of small firms, whether by them shutting up shop or merging. There is a strong likelihood that it will only be small firms left doing legal aid in my area.
Given that every firm in the area currently runs at full capacity and is turning away matters, that will be at least 60% of cases that won’t happen, at least in the short term. This is where it gets genuinely serious. We need to be clear that it means the collapse of civil legal aid in those boroughs. Unless people are astonishingly fortunate, they simply won’t be able to find a legal aid solicitor. The remaining firms will be swamped.
Just pause to think about what that means for the many, many people in dire need, with, for example, issues about homelessness, possession, eviction, disrepair, domestic violence, care proceedings, divorce, child care and visitation rights, etc. etc. etc..
This unprecendented protest is partly coming from firms who have been doing legal aid for decades, have been at the forefront of the law in their fields and been utterly committed to the sector. Now, finally, will the LSC and the DCA recognise that this is a bit more than a winge from some featherbedded fat cats?
(And by Monday, I may well be working for a non-legal aid firm. This was not in the plan. As a number of nervous associates are also noting, it is also a moot point how long our jobs will continue as well.)
I knew I was tempting fate. I made a comment yesterday on Pupilblogger’s post on litigants-in-person. Today came the swift nemesis to my hubris. A day full of new enquries fom what turned out to be l-i-ps. Not that they tell you that at first. Oh no. First comes the account of the problem, overflowing with history, personal upset and so on. Through this one might discern the outlines of a possible claim and it is while you are in pursuit of relevant detail (and wading through the digressions) that the first inkling that all is not well appears, usually as they blithely announce that they have already issued a claim. Questioned further, it turns out that the claim has been struck out (for ‘procedural reasons’ of course)/found against them/lost at appeal, but they are sure that this is simply a trifling set back and won’t be a problem for us. Oh and the counter-claim is still going ahead, but they can’t see why because there is no basis to it/it’s all lies, so it will surely be struck out soon.
Pardon me. I needed to vent. 5 or 6 of those in a day is a punishment of a classical, Sisyphean form.
But underlying all this is an issue that Pupilblogger raised and which I think deserves serious consideration - the gulf between the clients’ and the lawyers’ understanding of the purpose, substance and process of a case. If I was to be pretentious (and I do seize every opportunity so to be) I’d say their differing Weltanschaungen. I should be clear I am only talking about individual civil litigation clients here, because that is what I know. I have no idea if corporate clients seem like this.
The suggestion that clients tend to approach or discuss their issues in relational and historical terms strikes me as true. The client narrative is not so much of events and dates as ‘and then the council officer said to me’ and ‘they never came when they said they would’ and ’she was rude to me when I went to the office, but she has been ever since…’. Or alternatively, ‘they said I did this, but I didn’t, all I was doing was…(something substantially the same)’. This, quite rightly, is what matters to them. Lawyers do think in analytic and structural terms, fitting pattern onto facts and slotting response into categories. This is also quite right in terms of the law - this is how the client’s concerns will be dealt with by the Courts and how they are squeezed into statute and case law. This is our job.
Lawyers, by the nature of the beast, tend to look down on the client’s narrative version, seeing it as frequently irrelevant - which in their terms it is, but doesn’t help in getting the client’s confidence. At the same time, clients often see the lawyers as arrogantly ignoring their concern and upset, and refusing to take their case fully seriously - which while not unjustified, is not wholly accurate. When it comes to a court case, the lawyers take it very seriously, just not in ways that the clients can necessarily appreciate.
Perhaps what it boils down to is that for most people, the model of how the world works or should work is a conversation, with all the social and emotional weight of attention, respect, response and mutual recognition that this implies. Their complaint, for all that it might concern repairs, or failure in process, is based in a grievance about how they have been treated - without respect, without recognition as a fellow human, without response - a failure of conversation.
For most lawyers, at least when on duty, the model of how the world works or should work is a contract, with all the attention to terms, dates, specified duties and defined responsibilities that this implies. Any possible complaint must be framed in terms of a breach of the contract.
It is primarily the solicitor’s job to manage the translation between these modes, or at least explain to the client’s satisfaction what the translation involves. I suspect that, on the whole, we collectively make a bad job of it - leaving clients frustrated, or mystified and feeling like the case is no longer theirs, or wholly dependent on the solicitor’s judgement. Hence, perhaps, the quite frequent client demand for ‘their day in court’ in the face of a reasonable settlement offer, which drives solicitors up the wall. What the client wants is vindication for the hurt they have undergone in the failure of conversation - the way they have been treated. They are, of course, right to feel that way. The tricky part of the solicitor’s job is to explain that they aren’t ever going to get that in a court.
I have always tried to undertake translation and explanation as best I can, but I am aware that time pressure and the demands of a case do erode the necessary care. I’m now working up something of an adaptable set piece to take the client through at the beginning of the case, answering their questions, explaining what the claim will address and what it won’t, framing what will likely happen (and gently letting them down) at that point. Clients will be disappointed that their greivance will not receive justice, but they will be sooner or later anyway and it is worse if it flares up as an issue later on as a demand for the day in court that is doomed to disappointment.
Le LSC a la Lanterne (or DCA, or both) continued.
Item 1. Fiona Woolf talks sense. Let the heavens shake. It is almost enough to make me apologise for this.
Item 2. Other civil firms going public on not signing include: Fisher Meredith and David Grey Solicitors as well as Bindmans. There are many others in my (geographic and legal) area apparently going the same way.
Item 3. According to a Law Society ‘click here’ style survey:
- 11% of firms are leaving legal aid, so not signing the contract.
- 47% of firms are considering not signing and so leaving legal aid work.
- 41% are reluctantly signing the contract.
- 1% of firms are happy to sign the contract.
Hmm. A 41% take up is not good for the united front (although the pressures are pretty extreme for a lot of firms), but over 50% possibly, maybe, not signing is dramatic.
[Edit. A good post addressed to Joe Public is here on Ye Yo. It puts the case for public concern very well, although her firm is signing.]
On the boo hiss side is the Law Society’s weasley ‘explanation‘ (PDF) of why the Pre-Action Protocol letter of claim was sent on the date it was, despite the fact that no JR will be issued before the due contract signing date, even on an abridged timetable.
“there is no ground to expedite the challenge to take place before 30 March 2007 because the court can make a declaration on it after practitioners have signed the contract. Therefore, this point will be valid for practitioners who have signed the contract as well as those who have not.”
Well, equally, there is no ground to do it so late that firms have to do the ‘will they? won’t they?’ hot coal dance, is there? Unless The Law Society somehow thought it would play a brinksmanship game with the LSC and lost, which seems plausible.
Ah well, ça ira. Par justice la nation l’aura
Ken Adams of adamsdrafting.com emailed me the other day. I’ve enjoyed dipping into his site, even though my area has nothing to do with contract drafting and a relatively small amount of contractual interpretation. I like the overlaying of semantics, rhetoric and practical issues.
Ken pointed me to a piece on an English judgment on ‘best endeavours and reasonable endeavours’. Having read it, I agree that the terms of the distinction drawn by the Judge don’t hold water, but I also disagree with Ken’s view that there is no distinction.
‘Best’ is a superlative. ‘Reasonable’ isn’t. One’s best endeavours would be the best that one could do, whereas reasonable endeavours could well involve a weighing of other factors, e.g. cost, benefit, time, etc., in deciding on what course of action to take.
(Granted, ‘to the best of my knowledge’ is slightly more rhetorical, but the phrase implies that one has examined one’s memory and given active thought to what is being asked, whereas ‘to my knowledge’ carries a lesser sense of examination. However, such being the way of language, ‘to the best of my knowledge’ now carries a sense of evasion and cavilling.)
A parallel could be between a duty imposed by statute and a duty where the statute permits a decision to made having regard to factors x, y and z.
Ken’s suggestion that ‘best’ should be avoided would make absolute sense if one takes ‘best’ as a superlative seriously, precisely because it would imply that considerations of effort against reward or relative likelihood of success should not play a part in a decision on a course of action. Of course, he is also quite right that the Courts are unlikely to adopt such a formulation, but why take the chance?
Ken Adams also asked if I would mention that he will be in London on 17 April, giving a seminar called “Contract Drafting—Language and Layout.” It’s being sponsored by ACC Europe and the International Association for Contract and Commercial Management. Details of the seminar are here.
I did suggest that this might not be the ideal blog to attract contract drafters, but I’m happy to mention it. For a session on drafting, it should be entertaining (in a relative, not absolute sense).
[Edit. As Corporate Blawg comments, he has also just posted on best v reasonable. I am delighted to find that a) we pretty much agree and b) Corporate has given a clear, precise, practical formulation of that which I was dimly groping towards. And he manages to work in a contrast between Jane Austen and Thermopylae. I'd add Thermopylae as being a clear case of 'best endeavours', whereas my endeavours to watch Northanger Abbey while blogging were only reasonable, at best.]
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