On Saturday 16 July 2011 Matthew Parris, writing in The Times, listed ‘20 things about modern Britain that millions of us know already that – when in the fullness of time each is finally and authoritatively confirmed - will fill the air with protestations of shock and moral horror’. One item dealt with lawyers. He said:
This is a coming storm – coming, I do hope, in my lifetime. MPs have bitten journalists; journalists have bitten MPs; now judges, who hate the media, are about to bite journalists. Sooner or later comes biteback time. That the practice of law in England has for centuries been a stitch-up to enrich a professional monopoly at vast public and private expense is perfectly well known – not least by lawyers, who subliminally know that theirs is not quite a gentleman’s calling. Hence their rather desperate pomposity and self-regard. It must crack.
Well, let me attempt to start the cracking process.
Criminal Law
I suspect that most of us base our notion of how the law operates on what television tells us but the programmes we watch are largely concerned with criminal law, not civil law and these are very different beasts. Criminal law is based on evidence and the need for a conclusion to be reached. Guilty or not guilty? The whole process, from a charge being laid by the Director of Public Prosecutions (acting on evidence provided by the Police) to an appearance in court by the accused person, is focused upon the need for a verdict that is based on evidence and an interpretation of the relevant law. Both the accused and those giving evidence swear that what they say in Court is the truth, the whole truth and nothing but the truth. Either Magistrates or Jury and Judge (or these days, for certain cases, Judge alone) depending on the seriousness of the charge, decide on the guilt or otherwise of accused persons and then, if they bring a guilty decision, on the punishment that is appropriate. Sometimes, of course, an accused person will plead guilty and then the court appearance will be shorter and focused on the punishment.
Lawyers play an important part in the process, on both sides. An accused person will need a skilled, legally trained and qualified person to advise, to present evidence, to challenge evidence and to represent in Court just as the judicial system needs lawyers to make the prosecution case.
Criminal Law is focused on the Court appearance. The process is entirely focused on getting to Court - the plea of guilty or not guilty, getting a verdict and getting the matter of punishment sorted out. Once the prosecution has been laid there’s no avoiding the Court appearance; it cannot be negotiated away by lawyers unless evidence is presented that makes it absolutely clear that the prosecution case has no chance of succeeding and then the case will be dropped.
The important thing to remember here is that lawyers practising criminal law cannot conduct their business by bluffing or threatening or intimidating or using the threat of legal costs to influence an outcome. It is not a perfect system but it has a clear focus and criminal cases are resolved efficiently, or as efficiently as any system operated by fallible human beings ever can be.
Civil Law
I am not a lawyer. I have never been involved in any aspect of criminal law. I do have some experience of civil law, however. Most people have had some dealings with the ‘other side’ of the legal system; civil lawyers are used to write contracts and wills, set up trusts, handle inheritance issues and deal with the intricacies of property sale – conveyancing - purchase and leasing – and all kinds of things where it is important to comply precisely with peoples’ wishes and with the law. These are often complex matters and require highly intelligent, trained and experienced lawyers. I have no problem with this aspect of civil law and its practice. In general I believe these people earn their crust.
It is in the area known as ‘litigation’ where the intelligence and skills of lawyers merge with the very worst aspects of human behaviour to create an environment that embroils the practitioners in a world that can be cruel, immoral, deceitful and money-grasping and which has as its outcome the enrichment of lawyers above all else. The incredibly sad aspect of this world is that often the lawyers within it appear to be unaware of the true framework within which they work; their customs and practices have become so enshrined within the formality of legal practice that they do not appear to question the morality of what they do. They appear to believe that theirs in an honourable calling.
Civil Law deals with conflicts between people and people, organisations and organisations, people and organisations; cases may include claims for money that a claimant says should be paid and has not been paid and things that have been said that a claimant says should not have been said and have been said. It covers business deals, property, inheritance, divorce - anything where there is trouble and where criminal law has not been broken. It operates within an elaborate structure that is more akin to a crazy game of poker than a system that delivers justice and appears to be based largely upon the desire of lawyers and legal firms to make money as well as providing intellectual exercise for very fine minds.
Criminal Law is focused upon the need to have a Court make decisions as to guilt and punishment; it cannot function without conclusions being drawn. Civil Law bases its systems, its procedures, its arguments upon the threat of going to Court; going before a Judge is something to be avoided at all costs – and in this system that innocent expression ‘at all costs’ underlines virtually everything because not going before a Judge, not going to Court may cost a packet but it is a smaller packet than would be needed if you did go to Court and lost. Courts cannot be relied upon; they are too unreliable to trust. Actually going to court is the final straw.
In Criminal Law the pressure is to get the matter to Court as quickly as possible and get the business over with. In Criminal Law a defendant cannot ‘do a deal’ to end the process. In Civil Law the last thing the lawyers want, in the vast majority of cases, is an appearance in Court before a Judge because this spells the end of the gravy train. It’s not the decision that counts, it’s the fee-earning time it takes arguing about what that decision might be that makes lawyers rich.
Why should this be? It probably became this way because judges*cannot to be relied on to deliver. They may be very well versed in Law, they may be enormously experienced, but they are human and their decisions are also governed by their own beliefs and foibles. They are also, sometimes, stupid. Law is not a scientific process and its interpretation varies according to the Judge who ‘hears’ the case. And for a judge even to approach the fringe of making a fair decision he will have to read all the documents in the case including the documents produced by the leading counsels and the solicitors acting for the opposing parties. This is not inexpensive; the sheer cost of bringing all this legal weaponry into a court will make your fingernails weep blood.
Having your case judged in court may result in your losing so you either fail to get the recompense you were seeking or you have to pay out what is being claimed against you and then you may, you probably will, get landed with paying the whole cost of the action – not just yours but the other guy’s as well. And this judgement may very well have not too much to do with the strength of the arguments produced in your favour. A verdict may always be challenged through an appeals process, of course. Oh how the sticky palms of lawyers and judges are rubbed together over this extra way of increasing fee income! (On a recent radio programme a very well-known British lawyer, caught offhand it seemed, said ‘Lawyers do not want to win in court, they want to win on appeal’).
Altogether it’s far better to avoid all of this and the legal industry exploits this at length and to its own benefit.
The way the Civil Law system works is that you usually engage in a form of jousting, mock fighting, where your champions are the lawyers and you pay them for galloping up and down the lists putting up their shield with one arm and thrusting at the opposition with a weapon that is blunt (well, you wouldn’t want to harm a professional colleague would you? It may be an adversarial system but you don’t want to do real harm do you? You might want to go and work for his firm next year).
This is not to say that Law as written doesn’t have a part to play in all this. Law provides some of the weaponry and, during the jousting, the strength of the opposing arguments is tested against what the law says and what judges have decided in the past. The goal, however, is not a judicial verdict it is an out-of-court settlement and that is commonly reached when the champions have run out of energy and when the clients are becoming acutely conscious of how much money they are spending on fees. The poker analogy used earlier may also be justifiably applied – we all know, surely, that almost any poker game can be won by someone with lots more money than the opposition and we also know that a poker game can be won by someone who can make his opponents believe he has a lot more money when he hasn’t. This element of uncertainty involving money and how a judge may react when he, hypothetically, assesses the arguments is awfully rewarding for the lawyers on both sides.
For lawyers there is plenty of money to be made from wrangling with each other and using not going to Court as the ultimate justification for their actions – the costs of which are charged out at rates that are … high. Their charge is augmented by Value Added Tax, currently 20%. It is an interesting fact that if a Company that is registered for VAT is involved in an action against an individual who is not registered for VAT then in the jousting the individual – given that fees paid on each side are roughly similar – will pay 20% more than his adversary because the adversary may claim back the VAT paid on his champion’s fees. Using the poker analogy the litigant who is VAT registered has an advantage that is unfair.
To give some idea of charges made by solicitors I can only quote figures that are more than four years out of date. A Partner in a London firm then charged out at from £310 to £350 per hour, A Senior Assistant Solicitor, from £210 to £250 per hour, A Junior Assistant Solicitor from £190 to £210 per hour and a Trainee Solicitor from £90 to £110 per hour. VAT is added in all cases. A typical meeting with solicitors may very easily involve two or even three of these highly paid individuals and a meeting might easily last for a couple of hours. Do the math.
One may only imagine what fees are charged by QCs and Judges!
A few observations:
Lawyers will always demand a response from the opponents’ lawyers by a date that does not give them time to prepare a response so they never respond by the date demanded – yet demands go on being issued in this way. It’s a childish macho thing.
If a lawyer is about to swing his battle-axe in the form of a really nasty demand or legal argument he will send it by email to the opponent’s lawyers on a Friday at about 3pm – just in time for them to call their clients and ruin their weekend – and then post the hard copy to him First Class. This is part of the psycho-war so beloved of these people.
If there is any hint that the opposing party is showing signs of strain (inevitably at the thought of what all this jousting is costing) there will be much jumping up and down with glee. Serious illness, such as stress or a nervous breakdown is, I do believe, greeted with joy. ‘We’ve got the bugger going! Pile on the pressure! Show no mercy!’
If you ever have the misfortune to get involved with lawyers you will find them a pleasant crowd of folk; if they are on your side they share your pain; they say what absolute sods are the lawyers representing the other side and what vile villains are your opponents. But when they telephone you to ask if you can, say, come to a meeting first cast an eye on a clock. There is an exchange of greetings. Enquiries as to how things are going. One may even be rather flattered at the interest shown in you and your family. How was the holiday? Splendid. Could you make a meeting on Thursday morning at 10.30am? I will guarantee that the telephone conversation will last for 15 minutes, not a second less. And another quarter of an hour’s fee will go onto your bill (Now go back and look at those fees I quoted). A smart lawyer, with a creative mind, can turn this into a discussion about the case and easily run the conversation up to half an hour. When under pressure one needs friends and one unburdens oneself to friends (ie the lawyers) and this means Kching! to your lawyer. Your lawyer is not your friend, he is his friend.
To ordinary folk the notion of what is true is important. No matter whether claimant or defendant they will, from time to time, want to establish that what they are saying is true. Of course they may be lying but they may actually be telling the truth and they may want to do something that will establish this beyond reasonable doubt – as in swearing an oath. In Criminal Law the sworn oath (or the ‘affirmation’ for non-believers) underpins all evidence given in court and people tend to believe it cuts some ice. Whether it does or not is neither here nor there. (I believe it may influence juries and, of course, the act of swearing carries the implicit threat of a charge of Perjury if what is sworn is shown not to be true and that is, at least, good for discipline). In a civil case I do not believe that swearing something is true can ever cut any ice at all and that is why a civil lawyer, acting for whichever side, will pooh-pooh his client’s desire to affirm the truth of what he is saying in this way. This reinforces my opinion that civil lawyers have no real interest in establishing what is the truth when there is so much more to be gained by keeping things nice and fuzzy.
In a typical legal firm there is a hierarchy of lawyers each layer of which, as I have previously illustrated, charges a higher hourly fee than the one below. A litigant may well be allocated a lawyer who is fairly junior and may even be pleased to think that because of this the bill will be lower than it might have been. Then as the case proceeds the junior lawyer will probably find the need to involve a more senior colleague with some specialist knowledge who ‘might well make a valuable contribution’. A meeting with the two of them will be … more expensive than the client imagined. This escalation can move up so that an even more senior and experienced lawyer might need to be involved. I know of a case when a meeting between client and three lawyers, all part of the same firm, was charged out at some £1000 an hour plus VAT! (And that was more than four years ago.) And you, the client, don’t even have to be present during such meetings. Then it could well happen that the three lawyers might say that an opinion should be sought from a QC; at this point one may witness the legal machine work at maximum efficiency in the business of pulling money in – this will add quite a few more thousands (plus VAT) to the bill. And no guarantees are ever given. ‘We are optimistic’ is about the most the client will ever get from his lawyers and I doubt that this would ever be put in writing.
I don’t believe that civil lawyers are intrinsically bad people. They marry, they have children, they socialise, they play golf, they may even go to church. But what they do to earn a living is shameful because the system in which they work in is shameful and it brings out the worst in them. They did not create the world in which they operate. It has evolved over generations so that a cloak of respectability overlays the customs and gives them the outward appearance of decency. The huge sums of money that find their way into their pockets act as a cushion against any feelings of doubt they might, from time to time, feel. Life is pretty good if you are one these lawyers and, what’s more, most people (who have not been involved in litigation) look up to you!
How bad can it get?
What follows obviously does not reflect the professional behaviour of the vast majority of lawyers but it does show how the system can be stretched to include the most abominable behaviour. I have summarised two articles that appeared in the same edition of The Times as did the piece by Matthew Parris.
Lawyers facing multimillion bill from miners they failed
The chuck-wagon rolled into Lawyerland when it became possible for coalminers whose health had been irreparably damaged by their work to claim damages under the coal health compensation scheme 1999. 760,000 claims were channelled through the miners’ unions to a small number of law firms. The money that eventually reached the miners was relatively small, £1000 was common; the lawyers that pressed their claims received £4 billion in fees. Two of those lawyers was struck off in 2009 after they were found to have acted with ‘conscious impropriety’; one of them had earned more than £30 million from his firm’s work and owned a £1.8 million private jet. The headlined piece refers to a court ruling that leaves the way open for nearly 55,000 former coalminers to claim against the solicitors who failed to secure them adequate compensation for health problems caused by their work. The law firms face professional negligence bill of hundreds of millions of pounds.
*A final word on judges
I once represented my company in a claim being made against a man who had refused to pay a bill for advertising that he had booked and received. I was a director of the company and I am not a lawyer. The man had developed a product; it was very simple device. Before booking the advertisement he had brought the device to our office to demonstrate it to one of our writers. Having done this, and having spent something like an hour battering the poor writer with the glories of his brainchild, he went to the Advertising floor where he booked his space. He would pay for advertising space in which he would describe the item in his own words, show a picture of it, say how much it was and where it could be bought. His notion – not made known to us at the time - was that he would automatically receive a glowing description of his creation in the much sought after ‘Editorial’.
This man’s problem was his naivety. He really believed that by buying space he was guaranteeing a eulogy by way of a product review. In retrospect I think our problem was that we didn’t make it clear beyond doubt that this was not the case. Because we mainly dealt with experienced advertisers we probably assumed he knew as indeed most people would know.
The product review wasn’t at all bad. It was fair and pointed out that as well as having several virtues it had one small unattractive characteristic. I doubt if many people reading the piece would have noticed the criticism but the obsessed advertiser did and became quite upset. No, he would not and did not pay the bill. We passed the debt over to our debt-collection agency which started in motion a procedure that led to the man’s appearance in Court as a Defendant against our claim for payment. He was ‘unrepresented’ that is, he employed no lawyer. He would still not pay so he was taken to Court where I put our case to a Judge: our claim was upheld and the man was told to pay us what he owed plus a sum to cover the legal costs and other expenses we had incurred. The sums were not huge.
The man appealed and some months later I found myself explaining our position once more to an appeal judge who was the very caricature of a doddering relic tottering out of Jarndyce v. Jarndyce. He was very, very old and held some quaint views, one of which appeared to be that our erstwhile customer’s point of view was perfectly reasonable. We shouldn’t have accepted the man’s order if we had not intended to say anything other than nice things about the product, he averred.
I held my ground. I gave example after example of where ‘advertising’ did not and could not ever buy ‘editorial’. From the expression on the judge’s face and the irritable interruptions he made I thought I’d lost this one. We, the man and I, left the courtroom to await the judge’s verdict. The man was looking confident. I wasn’t feeling so.
Well, dear reader, I won and there’s the point. I suspect that one of the other officials in the courtroom put the old fellow right but that was just luck. The decision that favoured my case was just luck. With another judge the matter might have been decided in seconds in our favour. But with this desiccated old bugger I could easily have gone home a failure. Would the employment of lawyers have guaranteed my success? I don’t think so – they never guarantee anything. The sad news for the legal business is that neither the claimant nor my company paid any lawyer anything. The good news for both parties is that the costs involved were pretty small.
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