Something struck me yesterday. One of my colleagues called me at lunchtime whilst I was hungrily tucking into fish and chips to speak without prejudice about a case. Following a rather verbose rambling about the robustness of his party’s case, and his confidence in the strength of the evidence etc. he then went onto say that notwithstanding this, his client was willing to make a ‘commercial offer’.
The interesting part came when I asked him if he could comment further on the documents and for a summary of the merits, or any indication as to those areas of ‘robustness’ he spoke of. (whether it be evidence, explanations or a spot of law).
The response was he was notable to go into any detail at this point.
This conversation genuinely ruined my chips, which had by now gone cold.
How can I discuss or recommend a ‘commercial offer’ to my client without any details to think about?
It struck me why some lawyers work like this. If I spoke to a surgeon who was going to amputate my foot, I would hope at least for a little chat about the whys and wherefores.
Unfortunately, there is a large number of lawyers who operate like this. Hundreds of thousands of pounds of client money seems to be wasted by the anxiety created by legal teams espousing an opinion without justifying it. The real conversations take place at the door of the court when the parties finally open up to the opposing party.
The answer to this is quite simple: cards on the table from the start. Lord Woolf, as he then was, told us to do this a while back (in 1995) but still nobody does it! Woolf conducted research and reported on access to justice and how to cut down the cost of litigation. Although the law remained unchanged, new rules and procedures were introduced with the aim of making litigation cheaper, quicker and simpler.
This was to be the dawn of a new culture a more open less adversarial culture, where were instructed to exchange information in a series of formal steps known as pre-action protocols. These protocols would narrow down the issues and make cases easier to settle.
Are the Woolf reforms working in practice? Recent research commissioned by the Law Society and the Civil Justice Council, says that most practitioners regard the Woolf reforms as a success and reports that most believe the dispute culture is now more open, leading to better relationships between claimants' lawyers and those acting for defendants. I think the reality is we are still waiting for better days.
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