Anyone who qualified as a solicitor in the last millennium will remember the old ‘white knights’. Working ferociously in draughty boltholes around the country, they could be seen charging around the county courts fighting the good fight for accident victims.
The good reputation of claimant lawyers within the legal profession is now as mythical as Camelot. But it did exist. Even when derided as kaftan wearers and old-style labourists, integrity and passion weren’t an issue. What happened?
The change in the public consciousness inevitably affected perceptions within the profession. The rise of the ‘compensation culture’ has been much discussed, but no one will deny that compensation claims were not very visible and suddenly they were. And they were often tacky.
Even more reductively, one word - whiplash - became enough to damn the whole lot. At the same time, for unrelated, mainly bureaucratic reasons, the ‘health and safety’ explosion coincided with a change in the public’s attitude to risk. Claimant lawyers got the blame, and their enemies had a fully formed caricature at hand, already deeply embedded in the popular consciousness, in the form of the US model. Hot coffee from McDonalds anyone?
There was also a sense that claims were the underbelly of a deeper societal malaise. The lack of investment in making a claim, the perceived ease with which it could be done and the fact that victims didn’t seem to be the motivators behind them, were seen as part of the breakdown of something.
Depending on your point of view, it was called either ‘Thatcherite individualism’ or a ‘something for nothing’ culture: welfare bills, non-working families, bankers’ bonuses, ballooning executive pay. They all resonated. You can argue about the roots of it all but it was about people out for themselves at a cost to society and the taxpayer.
But what of the profession itself? Something happened here too.
There were ‘costs’, obviously. Claimant firms, which had previously been grinding out fees at Legal Services Commission rates alongside departments doing similar good work in fields like immigration and human rights, had to, with the rest of the country, get commercial, whilst conditional fee agreements represented opportunities to start making money.
Claimant lawyers made a lot of it, and insurance firms had to ask their clients to write bigger and bigger cheques.
Understandably they didn’t like it, and these things together changed the claimant lawyers’ reputation. At the same time, the profit motive, which was at its peak irresistible, marginalised the partners in the other departments who were more altruistic than profitable.
Some firms were tainted by genuine scandals like the miners’ compensation scheme. But it was about more than this. The old firms that could define themselves, genuinely, with a mission statement relating to unionised labour, or human rights, were diluted or displaced by more automated models and had to compete in a new environment.
The unions lost members, but also got smart themselves.
Litigation began to look like a money-making scheme for everyone except the client. Ironically, it was the lawyers who were playing catch up and were never the drivers of legislative change, deregulation or the competition that engulfed them.
The white knights were undoubtedly joined by some pretty salty mercenaries, and didn’t set themselves apart. Part of the reason for this is that the old claimant lawyer ‘brand’ was itself already tainted by excessively large caseloads, delays, lack of innovation and old-school pre-Woolf litigation tactics. More fundamentally, these firms were paid and supported by deeply unfashionable concepts; public funding and trade unionism.
Their fall was therefore less a failure to maintain the old brand, which had to die, but a failure to set the old brand apart, and create a new one. It had to change, but very few firms managed it. The sector definitely did not and was too easy to marginalise. At the same time, the new entrants handed a gift to the ideological and commercial opponents of these lawyers.
In some ways, they were victims, not of greed, but the opposite. It was their unsophisticated and non-mercantile nature that meant they were not capable of fighting a branding war in a modern world.
The big old firms used to act, often through relationships with the unions or mass LSC work, on huge numbers of cases which paid the bills and kept profits per equity partner high without the need for any real commercial awareness. These were not firms that understood the language of KPIs and measured performance and nor did they need to.
Some firms managed it - I like to think mine did - but it was a long road, and one which looks even more challenging up ahead.
Stephen Hill is head of professional negligence at Bolt Burdon Kemp