I recently attended a conference held by the Law Society’s Civil Justice Section – Litigators: survive and thrive. One key message was aimed at personal injury lawyers who – with the Jackson timebomb ticking and set for detonation in under six months – could be about to see their usual income stream blown away.
The event featured presentations from litigators in other practice areas – IP, insolvency, contested probate, group litigation, cross-border litigation – to highlight the different paths down which personal injury specialists may start travelling.
One of the most natural areas into which litigators can diversify is advocacy. Will Richmond-Coggan, a solicitor-advocate at Pitmans with rights of audience to Court of Appeal level, pointed out that using solicitor-advocates can make a lot of sense. Not only can a firm generate more fees by providing the advocacy itself, this can also lead to savings for the firm, client or both. One reason is that the firm can use a lower-level fee-earner to provide support than would be needed if the advocacy were done by an external barrister.
Richmond-Coggan said that in his firm, not only would he do the advocacy (at a non-partner charge-out rate), he would also need only a newly qualified solicitor to support him. Had the firm been using an external barrister, it would have needed an instructing solicitor with a few more years’ PQE.
Clients value the service continuity they get when they use the law firm’s in-house advocate, and it increases the status of the firm in the client’s eyes. Moreover, clients tend to feel they are getting better value because they are instructing one provider, not two; even if the fees are not actually lower. There may still be hurdles to jump in convincing after-the-event insurers that there is no need to involve a barrister, but Richmond-Coggan asserts that the ‘more progressive’ are now happy to accept advice on merits from solicitor-advocates.
But there is a danger to doing everything in-house, because in litigation you always need a ‘sanity check’. It is too easy for a lawyer to develop their own ‘pet idea’ of how a case should be run, and with no one to challenge it they can end up making a fool of themselves in court because the judge raised something they had not considered. There must be systems in place to ensure solicitor-advocates have someone at the firm to bounce ideas off.
Solicitor-advocates face another challenge: the impression – perpetuated by the occasional acerbic comment from the bench – that they are inferior to members of the bar. Richmond-Coggan refuses to accept that the solicitors’ profession is any less able. He treated the audience to anecdotes showing the bar in a none-too-favourable light, including a barrister he had seen turning up half an hour late at the Court of Appeal without an apology.
The solicitor-advocate also complained of that common scenario in which a barrister will often find themselves double-booked – because they expected a matter to settle – and will then decide to do the other matter instead, creating a bad impression with the solicitor’s client.
In a Court of Appeal case Richmond-Coggan acted on, the barrister’s grasp of the issues was so poor that the judge effectively gave him the winning point of law himself, saying, ‘I believe the point you wanted to make was…’ The solicitor says the barrister’s dismal performance only drew to a close when Richmond-Coggan slipped him a note advising him to ‘sit down’.
‘We are given the impression that we’re not as good [as the bar],’ said Richmond-Coggan. ‘But if you do the training, take it seriously and do your preparation properly, you will come out with a good result.
‘There are some extremely good barristers and some extremely good QCs. You do need to keep the junior bar in some instances to funnel through those expert people at the top. But I reject the argument that we are not as good as barristers.’
Food for thought for civil litigators thinking of diversifying.
Rachel Rothwell is editor of Litigation Funding magazine, providing in-depth coverage on costs and the financing of litigation.
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