-- Russell Wallman attacks the way the government has sought to focus media attention on 'weak and trivial' cases.The government must have been delighted by the reaction of the press to the legal aid white paper.

But the government should remember that press reaction the day after publication of a white paper or a budget is a poor guide to how the proposals will seem under scrutiny in Parliament or when they come to be implemented.Press comment has centred on examples of 'weak and trivial cases'.

There is no doubt that cases for which legal aid should not have been granted do get through the system.

However, as over 300,000 certificates are granted each year that is hardly surprising.

But it is no more sensible to condemn legal aid on the basis of a few anomalous cases than to condemn the whole of the judiciary for being out of touch because an occasional judge asks a question like 'Who is Gazza?' The government's propaganda about 'weak and trivial cases' has rested on two false premises.

First, that there is no 'deservingness' test in the present system -- that any case with a reasonable chance of success receives legal aid.

Secondly, that the white paper proposals will reduce the likelihood of undeserving cases being funded.

In fact, legal aid is already subject to a 'deservingness' test.

The requirement to show that it is reasonable to grant legal aid -- the so-called 'private client' test -- is designed to ensure legal aid is not granted in cases where a privately paying litigant would not think it worthwhile to litigate.

The white paper is likely to increase the number of weak and trivial cases funded.

The plan to delegate decision-making to thousands of individual contract holders will inevitably produce more inconsistent results than by leaving responsibility for this with the 13 area offices.

Many contract holders will find their capacity is stretched to the limits.

They will no doubt turn away weak cases.

But others will have spare capacity from time to time, and in those circumstances there must be a real risk that legal aid will sometimes be granted where it should be refused.

The Law Society has put forward practical measures to reduce the risk of legal aid being granted where it ought not to be: improved guidance to area offices; involving lay people applying the 'private client' test; and enabling legally aided persons' opponents to object to a grant of legal aid.

The government has ignored all these suggestions.The white paper's grotesque demonisation of legal aid litigants as 'state-funded Rottweilers' paves the way for Draconian proposals to remove assisted persons' protection against costs orders.

Of course, there is a need to ensure that unassisted litigants do not suffer hardship when they win a case brought by a legally aided client.

Certainly, legal aid litigants should pay what they can reasonably afford towards the other side's costs, and should forfeit costs protection if they deliberately misrepresent their case.

But to sweep aside all costs protection for legally aided clients because of bad behaviour by a tiny minority is a grossly disproportionate response.

It will frighten people away from bringing cases on legal aid.

The government machine is well able to deal with short-term news management on an issue like the white paper.

But the white paper proposals will unravel as they come under detailed scrutiny.

Lawyers' organisations, consumer bodies and advice agencies have all condemned key aspects of the proposals.

Any legislation in the near future will face a rocky passage.-- Bill Montague says that the proposals in the white paper on legal aid would have prevented his own firm from starting upIn 1987 I set up a legal aid practice with three friends.

We had no experience of running a firm but we flattered ourselves that we were good lawyers and had the beginnings of a client following.

If the Lord Chancellor's proposals on block contracting had been implemented ten years ago my firm could not have existed.

Under a block-contracted system we would have been a 'new provider'.

The white paper says that 'the board will encourage new providers to seek contracts as time goes on'.

It needs to, if cosy cartels are to be avoided.

However, it is clear that the initiative will lie with the Legal Aid Board (LAB), not with providers.

This is but one aspect of the 'command economy' in publicly funded legal aid that the white paper envisages.

If the LAB does not consider that there is a need for another firm in a certain town, then a new firm will not get off the starting block.

If the LAB does accept the need, it will have to allocate funds.

This would mean carving a new contract sum from existing contracts which are coming up for review.

A new firm will have to compete with local firms with whom the LAB has valued 'long-term relationships', as the white paper calls it.

What could a new firm compete on if not price?We also read in the white paper that '[new] providers who can satisfy some minimum requirements on a preliminary audit will be able to win short-term contracts, probably for one year, while their systems develop'.

When my partners and I committed ourselves to setting up a practice we had nothing on which a preliminary audit could have been carried out.

Even if we had, it would have been folly to risk all for a one-year contract.

In future, the only genuinely new providers will be those that are set up by the LAB.

This may explain why the Lord Chancellor plans to give the LAB power to make grants and to employ staff direct to provide services.

Not many self-employed solicitors will be willing to risk all.Existing fra nchised firms are the only ones likely to survive, apart from salaried services run by the LAB or the advice sector.

It is becoming increasingly clear that this radical transformation of the legal aid system cannot go forward without the active involvement of franchisees.

Larger, established legal aid practices will be best placed to negotiate and handle contracts.

However, established firms and new providers alike will be completely at the mercy of the LAB.

When a contract comes up for renewal in a time of public-spending cuts, what price then a firm's valued 'long-term relationship' with the LAB?If the Lord Chancellor's proposals are implemented, tomorrow's legal aid scheme may belong to large firms with the ability to take or leave work and gamblers who can survive from one year to the next without long-term commitments.

The idea of a salaried national legal service begins to sound attractive.-- Roger Smith says the message in the white paper for solicitors is to get big, get commercial and undertake more advocacyUncertainties surround the precise consequences of the government's white paper on legal aid.

The practical advice for practitioners is, however, pretty clear.

Get big; get big fast; develop your criminal practices; standardise your civil litigation procedures and undertake more advocacy.The future of any white paper announced within months of an election is uncertain.

In these circumstances, prudent practitioners -- whatever their personal politics -- must reckon that Labour's Lord Irvine may have more say in the future of the paper's ideas than Lord Mackay.

This is not necessarily good news.

Labour's prospective Commons minister on legal affairs, Paul Boateng, commented that the white paper did not hit lawyers hard enough.

Quite what Labour would change is unclear: it is safest to reckon on very little.Even without this complication, the government's proposals will take some time to implement fully.

A strict cap on the budget would require legislation.

In the run-up to this, some consolation can be taken from the consistent failure of the Lord Chancellor's Department to make legal aid expenditure hit estimated levels.

Indeed, the white paper's advocacy of Byzantine contracting arrangements may be constructed on the need for arrangements to compensate for precisely this inability.

Solicitors are to take the strain of predicting demand by agreeing to bulk contracts where they take the risk of fluctuating client levels.Nothing can stop the slow down in the rate of legal aid expenditure.

This will cause difficulties for solicitors, particularly those starting new practices.

Legal aid has been rocketing as a percentage of solicitors' turnover.

The precise proportion contributed by legal aid to solicitors' income is difficult to calculate but, using a common basis, the Law Society's latest annual statistics show that it has risen from 9.7% of all income in 1988/89 to 14.5% in 1993/94.

Any halt to this growth will have grave consequences for the profession.

Family cases will be threatened by the legislation that has finally been passed.

This clearly intended to shift money from legal aid practitioners to mediators, for whom hourly rates are likely to be considerably lower than those currently payable to solicitors.

The profitability of non-matrimonial civil litigation will be affected as much by the consequences of Lord Woolf's report on civil justice as by the legal aid white paper.

The consequence of both will be to bring down unit costs.

Civil litigation will remain profitable only for those with computeris ed and standardised systems.

In response to these changes, legal aid practices should develop in-house advocacy capacities.

If the total spent on legal aid is capped, then the only way in which solicitors can expand their income is to undertake advocacy work which is currently sent to the Bar.

Significant strides can be made without qualifying for Crown Court rights of audience.

In 1995/96, over £15 million was paid to barristers for magistrates' court attendances at an average of £184 a case.

Another £90 million is on offer for county court advocacy.

A commitment to advocacy will be particularly helpful if the Bar's political weight proves insufficient to prevent the move to bulk contracts of the kind envisaged in the white paper.

These will make solicitors fundholders for their clients in much the same way as general practitioners are in relation to their patients.The white paper is Draconian in its implications for solicitors' clients, particularly in civil cases.

Solicitors who are properly alert to the opportunities and are prepared to run their practices commercially should survive, but even for them it will be harder than it has been.-- Jim Collett notes that the Lord Chancellor has borrowed some ideas from the legal expenses insurance marketThe white paper calls for legal expenses insurance (LEI) to play a meaningful role in developing and funding legal services in the next millennium.

This is good news for lawyers, insurers and clients alike, since only with legal expenses insurance can successful litigants receive damages gross rather than net of any legal aid contribution or conditional fee mark-up.LEI is now a profitable insurance business for many of the lead players in a market which, in terms of gross premium income, rose by 8% in 1995.

This is a result of tighter claims controls and a preference for product distribution by low-cost add-ons to both general insurance policies and to trade union, trade association and employee benefits.

Insurers may view the white paper's calls for franchising and block funding with amusement.

Such concepts are not far removed from the practice by which insurers operate panels of lawyers to handle claims in order to streamline administration, control cost and obtain consistency of quality.The Lord Chancellor's Department (LCD) has borrowed something else from the LEI market: the benefit to customers of direct telephone access to lawyers.

This is a response to customer demand for quick access to basic legal information, problem diagnosis and first-aid advice.

Law firms that are subsequently instructed to act on admitted claims say they find this 'pre-briefing' and problem diagnosis of clients invaluable.The LEI market will focus on 'MINELAs' -- those people of middle income not eligible for legal aid.

If the white paper's proposals for Parliament to control legal aid funding should proceed then there will need to be some form of LEI 'long-stop' for those who are disenfranchised from legal aid.It seems less certain whether LEI could replace legal aid.

The central dilemma is that insurers will not cover pre-existing events, whilst legal aid patently does so.

If the proposal in the white paper for unsuccessful legally aided litigants to contribute to their opponent's costs is accepted, there could be scope for LEI cover to meet that foreseeable event.LEI-sourced advice and assistance services will provide inexpensive and direct access to justice.

This has the greatest relevance for green form work.

Many law firms are buying advice services from LEI suppliers to enable the m to maintain a 24-hour practice cost-effectively whilst at the same time having a mechanism for filtering and prioritising their response to client calls.