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    Entries in legal practice (5)

    Monday
    01Mar2010

    Competency tests?

    I have been following the debate in the Law Society Gazette over recent weeks about the inability of solicitors to work to a fixed fee because their counterpart on the other side of a transaction may be incompetent or inexperienced.

    This seems to have struck a nerve with the profession (see the letters from Natalie Saunders from Berwins entitled "Time-based charging cannot be abandoned entirely" and from Neil Wright entitled "Competency Test" by way of example and the in-house counsel perspective from Christopher Digby-Bell).

    Christopher used the analogy of a heart surgeon to illustrate the concept that payment should be based on results and not necessarily the time spent, which was challenged by a subsequent correspondent who replied  that longer heart operations cost more (see the full letter of response here).

    This seems like a rather strange argument - as Christopher pointed out in his own response, it is unquestionably true that the operation will cost more (in terms of  theatre time and staff costs) but actually the surgeon doesn't charge the patient more  in this situation.

    I don't disagree that often the biggest problem on a transaction is dealing with a solicitor representing the other party who clearly has no experience or knowledge of the relevant area of law. It can and does make matters much more difficult and time consuming.

    As a profession though can we seriously afford to say to our clients "we can't guarantee that other members of the profession are qualified or competent to carry out the work they take on. If it turns out that this is the case here, then we will expect you to pay extra for it"?

    As a client, if a lawyer said this to me I would find another lawyer - and there are plenty around who will offer a fixed fee.

    Maybe the answer is in competency tests for specific practice areas as Neil suggests? This is the position in other professions such as medicine - to strain the heart surgeon analogy even further your heart surgeon wouldn't be able to decide that he was a little short of work and so would try his hand at a few knee replacements.

    Some practice areas do seem to have adopted this idea of additional qualification (for example the Society of Trusts and Estate Practitioners which offers the various STEP certificates and diplomas for practitioners in this area), but it could be used more widely.

    I don't believe that the answer lies is in arguing with our clients (and that includes in-house counsel) when they tell us that they want fixed fees and are not prepared to subsidise the incompetence of other solicitors.

    To (loosely) paraphrase Bill Gates:-

    "in 10 years the way in which solicitors operate today will be obsolete. The only question is whether we make it obsolete or whether someone else will"

    If we, as a profession, refuse to listen to what our clients are telling us then it will be someone else who makes it obsolete.

    Tuesday
    16Feb2010

    Speak the (legal) web

    Last night was the Liverpool leg of the Speak the Web tour. The tour is a series of web design and development events, but structured more like a gig than a traditional conference or seminar.

    I am guessing I was the only lawyer there (although I abandoned the traditional suit and went undercover in my "cool" clothes so there might have been others doing the same).

    I suspected it might go over my head, but I needn't have worried as the speakers pitched it really well and even the more technical parts about HTML5, jQuery and Cufon were accessible to someone with my level of knowledge (i.e. not much!).

    The speakers were all great, but the highlight of the evening for me was the talk by Simon Collisson  of Erskine Design:-

    "The appliance of science… the pursuit of magic"

    It isn't often (or ever really) that I look at a new site and am stunned by the design. However, Simon's personal blog at http://colly.com (which is laid out in the style of a Victorian gentleman's journal and "miscellany") struck me as one of the best pieces of site design I have seen.

    It wouldn't really be quite the thing for a law firm, but it is worth a look as a piece of art in its own right.

    Because of Despite Simon's apparent hallucinations due to a combination of prescription painkillers and lager I was riveted by his talk.

    As a total novice I probably learned a lot more than a lot of the audience and there were a lot of "takeaways" (I will certainly be taking a look at the work of Jason Santa Maria and Jina Bolton in more detail).

    From modernism and post-modernism to semiotics and humour (which shouldn’t just be reserved for 404 pages apparently) the common thread was what Simon is learning about bringing web design back to design fundamentals and delivering the "magic" through conscious application of design rather than adding visuals and effects for the sake of it.

    In particular I was struck by one of his first messages:- "design to communicate", which seems to be something which a lot of law firm websites don't manage to grasp.

    Simon is going to be putting the slides up on Slideshare (I will put a link up in due course) and I would suggest that any lawyers who have responsibility for their firm's web design take a look.

    Driving home after the event I was left with three thoughts:-

    • Could legal training events be made this interesting and accessible (or are we just more boring than web designers?)
    • How could law firm sites benefit from taking this "step back" to design fundamentals? Have we really thought about what are we trying to communicate and how the design can help us to do it?
    • What they need next year is a cool legal blogger to talk (and get free beer!)...
    Friday
    12Feb2010

    Voucher Cloud for high street law firms?

    I downloaded the Voucher Cloud iPhone App earlier in the week (available now from the iTunes store).

    I suspected that it was likely to suffer from similar problems to Foursquare and Yelp (great concept, but no local businesses or locations registered). However, the reality is that there is a really good selection of local vouchers on offer - even on the Wirral.

    This isn't going to be big news for commercial law firms, but for high street law firms where people shop around locally for conveyancing and other services I think it could be a really interesting way to offer a discount.

    I wonder how long it will be before we see the first law firm vouchers on a service like this? Although please, no more divorce vouchers!

    Sunday
    07Feb2010

    22 Tweets

    I am being interviewed live on Twitter next week by 22 Tweets (real-time Twitter interviews with practicing lawyers who tweet).

    The interview takes place at 8pm (UK time) on Thursday 11 February so if you are interested in seeing what I have to say then simply follow the #22twts hashtag and look out for @Beej777.

    This will be the first 22 Tweets twitterview from the Wirral - and I will be doing my best to make it an interesting one... any support would be much appreciated!

    Monday
    01Feb2010

    Lawyerstar Galactica

    What do corporate lawyers have in common with the crew of Battlestar Galactica? (Credit to thegreatgeekmanual for the poster!)

    I am working my way through the remake of Battlestar Galactica on the recommendation of a friend. I loved the original when I was younger and I suspected that the new version would be disappointing, but so far I am really enjoying it.

    The first episode of the first main season is called "33". There is a full plot synopsis on Wikipedia but the essential point is that whenever Galactica jumps to a new location, the evil Cylons catch up with them precisely 33 minutes later.

    This prevents the crew from sleeping and, after five days and 237 jumps, their real battle is to avoid making a fatal miscalculation as sleep deprivation strikes (for anyone who has never watched, the Cylons are machines and don't have this problem).

    Anyone who has worked as a corporate lawyer at a large firm will find that watching "33" brings back unpleasant memories. It seems to be almost an unwritten law that completing large deals requires late night finishes (or more likely early hours of the morning) in the run-up to completion with a couple of all-nighters thrown in for good measure.

    The struggles of the Galactica's crew to remain awake and functioning seem pretty realistic from my own experience and I scanned the closing credits carefully to see if any magic circle corporate lawyers were involved as consultants!

    I have always thought that having sleep deprived lawyers working on your transaction as it reaches completion is a raw deal from the client's point of view. The final outstanding points are negotiated and rigorous attention to detail and project management are essential… and you are going to do it when you have been awake for 36 hours straight?!

    The science of sleep deprivation is very complex, but there is no page of Wikipedia which I won't skim read in pursuit of illumination, and it is obvious that the effects of sleep deprivation on the cognitive process are profound. The 2004 study cited in the article which found that "medical residents with less than four hours of sleep a night made more than twice as many errors as residents who slept for more than seven hours a night" is fairly representative. It isn't a great leap from this to suggest that a lawyer's performance would be reduced in the same way.

    The studies which suggest that lack of sleep makes you obese are also worrying for corporate lawyers (although this seems to be less clear cut – especially as living on vente lattes, chocolate bars from the vending machine and pizza deliveries during the course of a deal will have a similar effect anyway).

    The serious point is that carrying out client work in this state creates a liability risk for the lawyer and their firm and means that the client is unlikely to be getting the best out of their lawyer.

    There are transactions where deadlines make the late nights essential, but in most cases the problem could be avoided by resourcing work properly and project managing it effectively.

    Maybe corporate lawyers need to collectively grow up and realise that pulling an all-nighter isn't a badge of honour or (usually) a necessary evil, but rather an indication that something has gone wrong.

    It shows that someone, somewhere, has managed the transaction badly. In that situation it makes sense to consider who, and why, and whether there is something we can do differently next time to avoid a similar problem.

    There may not be Cylons waiting in the wings, but the consequences of making forced errors as a result of sleep deprivation could still be painful for those involved.