Streamlining workflow and tightening matter start procedures are essential elements in repositioning your firm for a post-carter world, explains Vicky Ling


Three policies will ensure you make the most of the Legal Services Commission (LSC) civil and family fixed-fee schemes: open all the new matter starts that are justified under contract and specification rules; work on those files as cost effectively as possible; and assessment-proof your costs.





Maximising your matter starts

The LSC is clear that you must not target certain sorts of clients or cases to maximise your income, but it does allow you to 'change your case mix by accepting a broader range of cases, reflecting the types of cases arising locally in this category of law, than previously' (Unified Contract Specification rule 7.15).



In addition, in its final fees paper (Legal Aid Reform: Family and Family Mediation Fee Schemes for October 2007 - consultation response), the LSC restated its position on the use of 'legal help'. This is that, while there is no current requirement for firms to use legal help matter starts, in future the LSC intends to contract with firms that 'can offer a broad range of services to clients'.



So, if you have been targeting complex cases in the past, you may be able to take on more straightforward cases without incurring the displeasure of the LSC. People often say that they cannot predict which clients will come through the door, but you can encourage referrals, perhaps from local advice agencies and citizens advice bureaux, and make it clear that simple cases are as welcome as complex ones.





Segmenting work on a case

Achieving profitability across departments is likely toinvolve dividing work on a case between people with different levels of skill and experience. Some firms have been doing this for some time, although others remain sceptical and believe that a solicitor should do all the work on a case. However, ever more departments are working on a team basis, with solicitors having a paralegal to assist them as well as traditional secretarial support.



Some firms use checklists so that experienced secretaries can act as paralegals and take initial instructions from clients. These are then reviewed by a senior lawyer, who decides who needs to do what on a case. Others prefer an experienced lawyer to see the client initially, make a 'diagnosis' of the legal issues and allocate work accordingly.



If you take this approach, it is important to manage clients' expectations by explaining the positive aspects of cases being handled by a team. There will always be someone who can update them about what is going on. Do not accentuate the negative, such as: 'The LSC won't let us spend much time on your case, so we are going to have to use some more junior staff.'



Involving clients as co-workers may be another way of making the new fee schemes viable, for example asking clients to complete a pro forma with personal details before the first appointment.





Hang on to your costs

The LSC is reintroducing contract compliance audits for civil and family fixed-fee cases. It will not carry out a line-by-line assessment of costs but it will assess scope, merits, eligibility, evidence of means and accuracy of reporting. If a significant number of files are 'nil-assessed', the LSC may issue contract-warning notices, which can result in termination.



It will be essential therefore to eliminate the possibility of nil assessment. It is obvious that you will need to be rigorous on evidence of means. You will also have to ensure that you can always justify each matter opened, as the LSC can nil assess any case it thinks should have been dealt with under a single matter start. Paragraphs 5.6-5.22 of the Unified Contract Civil Specification set out the general rules, but you also need to check the subject-specific rules, as these take precedence where the two conflict.



One common issue will be justifying opening a new matter if a client comes back after you have closed a previous file. You can do so if it is six months since you submitted your claim for the first matter, or at least three months has elapsed since you submitted your claim and there has been a material development or change in the client's instructions.



Another area for vigilance will be where a new client requests legal help on the same matter where he has received advice within six months from a previous supplier. You can open a new matter if there is a 'gap in time and circumstances have changed materially between the first and second occasions' (Funding Code B9.1). You can also open a new matter if the client has a reason to be dissatisfied with the quality of service provided by the first supplier. In these circumstances, you must ask the client for authority to obtain the previous adviser's file so you can satisfy yourself about why the retainer was terminated.



The LSC will be reluctant to pay for further work on the same matter, so if you think it is justified to do so, record the reasons carefully.



Finally, the LSC has said that, initially at least, exceptional cases will be assessed on a case-by-case basis. It will be essential to ensure that all exceptional case bills are 100% assessment-proofed, as the LSC is likely to take a robust approach to cases that exceed the escape thresholds and are paid under hourly rates instead. It may well be worthwhile investment to get exceptional case claims prepared by a costs draftsman.



Vicky Ling is a management consultant specialising in legal aid work