So bright..so beautiful..ah, Precious

In October 2011 a line was drawn.  The world officially parted into two groups: lawyers and non-lawyers.  The Legal Services Act 2007 decreed that it should be so and the SRA created the rules to make it happen. 

In reality that date did no more than recognise a line that had been drawn long ago but it wasn’t so much a line as a great big ring that encircled lawyers.  It was a magic ring, with magic so powerful that it had the ability to influence the behaviour of those who stood within it.  It was a ring of preciousness because it marked those within it as special and different from all of the rest.

A story worthy of a trilogy?  Possibly not but I can’t help ask the question: are lawyers simply too precious to adapt, learn and overcome?  Is there something innate in our lawyerly DNA that causes us to resist change at all cost, to entrench and to defend? 

The issue of our preciousness and our desire to be treated differently from ‘the rules of the rest’ can be seen in so many subjects present in the legal press at the moment from comments on trainees pay to the concept of open plan working, the demise of big US giants and to new entrants to the legal market (the ones that talk about the customer experience and a ‘customer centric service’).  Whatever the subject  I can pretty much guarantee that somewhere along the line the word ‘profession’ will be used as an argument against the change or to mark the sound of the death bells tolling. 

No more keenly is this seen than in the customer v client debate.  The distinction between the two is that one definition involves the word ‘profession’.  It may indeed be horses for courses and different businesses may fly their flag against one or the other but I wonder just how much the debate centres on what we, the lawyers, believe.  After all if we can have ‘clients’ not only are we different but we are also marking out those who use our services as different.  It might be semantics but it may also be about our special mindset.  There may be groups of people who use our services who define themselves as clients not customers or consumers but equally there will be groups who don’t realise that there is a difference in the definition.  So, in essence, we’re staking our flags against a definition which is not necessarily understood by the users of our services.  How very lawyerly.

I know a lot of lawyers and work with a lot of law firms.  I know some immense lawyers with brains the size of planets, talented, exceptional individuals.  It isn’t a given that they understand or are even interested in my needs, they simply do what they do.  Traditionally I may have forgiven them their social inadequacies and the fact that I can’t get through to them on the phone or get their bloody ‘out of office’ messages when I damn well know that they are in the office.  I despair of receptionists who don’t ask my name just demand a reference number or ask “will Mr Jones know what you’re calling about?” I rage about their PA’s who clearly are being used as some kind of shit filter and it is only if I pass their test that I move onto hallowed ground when the “Mr Jones is currently in a meeting” moves to “Mr Jones appears to have just become available”.  Through all of this I can’t help but have the feeling that they think I’m stupid, that I really am falling for those little white (professional) lies.  I say traditionally because nowadays I have started asking “tell me why I should recommend/use your law firm” or I send an email that says “hi, I wanted to talk about business but I couldn’t get through..your assistant told me that you were in court/in a meeting/on the toilet and didn’t know when you were likely to be available to talk”.  I have also started to search around and found providers of legal services who perform the amazing brain work but also provide the other things that I am looking for: knowledge, content and method of delivery rolled up in the way that I want to receive it. I’m not looking for a one-way street.

As a legal services customer I may be (slightly) forgiving because I do understand the pressures but lay clients, if you accept the outcome of surveys, fear lawyers and the idea of the ‘profession’.  All you have to do is walk the path that they do just for a moment to understand why that may simply be true and ask yourself whether it is acceptable.  Are they wrong or do we, the provider of the service, need to change? Ask yourself whether your profession means that you should be treated differently, whether it’s a viable excuse and whether the mere fact of your being is enough.  I suggest that it is not.

Don’t be precious and bemoan the past and the changes that will bring the sky down.  It could happen but maybe it won’t.  Others within the profession may understand where you’re coming from and maybe some outside but the overwhelming majority won’t actually care.   Let the person who uses your service define what they want to be called. The definition is only as relevant as the values your business and the people who work for you hold. 

Yes, I get that there are challenges, that there is much to fear on the horizon but apply some of your analytical skills to your own business. Ask yourself what demands you make of others when you are a customer.  What are your service expectations and how do you define good and bad service?  Then ask simply why should the demands you make differ from the demands made of you?  Don’t be precious.  If you hate it when your bank routes your call to an offshore call centre because nobody understands your needs, don’t assume that calls to your business here in the UK don’t suffer from the same problem.  It doesn’t take a different continent or a language barrier to distort understanding.

There are many, many people out there who can help lend their skills but they can only do that if there is willingness by a business to examine what and how they do things.  That willingness has to extend to asking difficult questions and challenging perceptions.  Is your next big threat the one on the horizon shaped like an Eddie Stobbart truck and providing legal services?   It’s possible but equally the biggest threat, the one that already exists, may well be the enemy within.

The Art of War

Somewhere deep inside the corridors of power within Government the ABI, a man sits, eyes narrowed against the glare of the single light bulb projecting a pool of fractured light onto his sparsely furnished desk.  Teeth clenched, his face animated, his fingers pound the keyboard in staccato fits and starts as he translates his thoughts into ideas, fractions of strategy shaped through his boyhood reading material; the words of Sun Tzu.

With stages 1 (Laying Plans/Calculations) and 2 (Waging War/Challenge) completed he inhales deeply pausing for a moment to reflect and concentrate on his opponents, to visualise the future he intends to shape.  And, shoulders dropping he presses on.  In some ways he has had to accept that his work has realigned the order to Sun Tzu’s work, tactical disposition, weak points, illusion and reality are already in play the order becoming less important than the energy that has been created, the momentum of the march.  With double carriage return he creates a sub-heading “Stage 3: Updated Strategy of attack” and starts to lay out methodology…

It seems that a memo has been leaked (leak or controlled disclosure?) that exposes the ABI’s potential push to drum down legal fees in RTA portal claims to the big not-so-fat figure of £150 (£350 if you accept the higher end of the figures).  That’s not for a segment of the process but the whole thing from start through to finish.  The amount that’s been introduced smacks of badly informed holidaymaker bartering and simply reads as game playing.  I could be indignant about every argument insurers and MP’s have raised on the idea that injury claims are traded “like commodities”.  The starting bid is for the supply of legal services for the claim settlement process brings it down to exactly that, no more than replicating the insurer’s business model. So, in some ways, discussion driven with the aim of demonising the claim process has become a self-fulfilling prophecy or maybe, in the eyes of the ABI, it’s always been that way.  Numbers in a book rather than people injured through the negligence of others, a threat to their profitability rather than part of the risk that they have accepted through insuring the individual and their vehicle.

The opening bid is in and the horse trading on value will commence with claimant representatives starting from the other end of the scale.  Those with financial responsibilities in law firms may already be doing the numbers. Like me they may dismiss the £150 as a joke, seeing it only as a way of controlling the mindset.  After all, any volunteered increase on £150 could seem like a concession on the part of the insurers.  They might be looking at whether, at current staffing costs, calculating the overhead, looking at volumes or many of the other *tiresome* things you have to consider when running a business.  Others may be considering whether its viable to run those type of claims at all, whether they can run the risk of a process that is driven by the lowest common denominator so as to not put their professional indemnity insurance at risk (oh, the irony). 

Rudimentary economics such as scale matter as much to personal injury practitioners as they do to insurers.  The numbers have to stack up otherwise the process fails.  Now maybe that’s the outcome of the war the ABI are waging or maybe it’s very simply one of control of the supply chain.  Even its neither of these what the ABI understand that their strength is in their consolidation: as individuals fingers of the hand they are weak but joined together they become a fist and are strong.  They feel strong enough to even consider making such an outrageous and offensive starting bid and the dissenters are told simply to be quiet.  The end justifies the means. 

Standing on the other side of the line, holding the hand of the injured individual is the claimant camp whose weakness in the face of the enemy is there for all to see.  It doesn’t have one voice, one representative and its future clients don’t want to think about the possibility of being injured, it might never happen to them after all.  The claimant camp is full of people who’ve taken a kicking both from within and outside.  They have different solutions on how to deal with the cold and rain.  The tent owners vary in size and design and they’ve all got their own view on the qualities of their particular tent and its particular benefits when compared with others.  Some people are in the campsite but they ’re not committed to the need to shelter from the storm clouds – they’re relying on a puff of wind to come from the south and blow the clouds away. As the camp dwellers argue amongst themselves about who had the best idea or whose tent is going to be the future and whether it will rain or not the ABI has finished the frame of its 5* hotel and is laying down foundations for the swimming pool.  The bloke who was earlier writing the report in his dingy back office has his shirt off in the sunshine and is hammering in a “no tents” sign.

Others far wiser than me suggest that law firms are their own biggest competitors within the market place; it’s not such a great leap to suggest that the non-strategy adopted by some personal injury lawyers could also be the greatest threat to their own future.

The claimant camp may have too many representative voices to be useful when a negotiaton is in hand and the Government may simply be too self-absorbed in its own agenda to hear the evidence but don’t let that stop you speaking out, speaking up and challenging.  Align with others, agree to put aside differences of opinion but agree on the principles.  Access to justice for future personal injury claimants is the prize.