bar mag 54

the barrister

#54

ESSENTIAL READING FOR BARRISTERS

1 st october - 21 st December 2012

E st . 1999

www.barristermagazine.com

Michaelmas TERM ISSUE

ISSN 1468-926X

Evolution not Revolution

Features

Ian Dodd’s article in the June/July issue of

six barristers and a solicitor. He ended the

‘the barrister’ was interesting in many ways.

article by saying that “the Legal Services

First, he summarised wonderful progress

Act has paved the

by solicitors in expanding and improving

way for an ABS

their businesses, including mergers and

world”, and that

venture capital. He then turned to the Bar,

the

and said that progress is slow, and that it

speed up.

Bar

Clerking 3 Silk, Cases

torpor and join the race before it’s left too

I have been keen

far behind”. He commented on the failure

on

of chambers to merge, to create sets that

management

need “to be at least 70 strong”, but did pick

chambers for 30

out for comment the quasi chambers set up

years

By Gary L. Walters marketing will help 18 Intelligent barristers raised the bar

by DLA Piper, and the small criminal set of

and I hope that I

While it could be argued that any successful marketing of Professional services has to promote the skills of the advisor in conjunction with promoting the firm, the requirement for The Bar to push both is even more acute.

progressive

or

of

more,

Bill Braithwaite QC Exchange Chambers

By Douglas McPherson

p.6

to 21 How Century

Practitioners in criminal law will be aware

mitigating factors for the Courts to take into

that judges and magistrates are directed

account when passing sentence. However

to consider not only the age of an offender

where the facts of the case are particularly

but their level of maturity when it comes

serious, the youth of the offender will

to

Council

not necessarily mitigate the appropriate

Definitive Guidelines in relation to Drug

sentence.’ The earlier produced Theft

Offences, Burglary and Assault direct a judge

and Non Dwelling Burglary Offences SGC

when considering the potential application

guideline refers under ‘Factors indicating

of mitigating factors to consider and take

significantly lower culpability’: ‘Youth or

into account ‘ Age and/or lack of maturity,

age where it affects the responsibility of the

where it affects the responsibility of the

individual defendant.’

offender.’ The SGC definitive guidelines

survive the 21st

Jitendra Valera (JV), chief marketing officer at IRIS Legal, the market-leading chambers practice management software provider, says too many chambers make short-term tactical decisions and should be more strategic and forward thinking when selecting technologies…

Young Adults In The Criminal Justice System.

Sentencing

and Trading

The BBC legal drama Silk has undoubtedly brought an element of charm about being a lawyer; whether as a slightly intimidating instructing solicitor such as Mickey Joy or head of chambers Alan Cowdrey QC.

should

might be time for the Bar to “shake off its

sentencing.The

price £2.80

News 22

Tracking changes to legal ethics – LSB research suggests the way ahead

23

Bar Council calls for ‘snoopers’ charter to protect legal communication

Publishing Director: Derek Payne

under the Sexual Offences Act 2003 states

But in one sense, and to a degree, lack

at parag.1.17..’The youth and immaturity

of maturity has been a factor

of an offender must always be potential

recognised and taken into account

0845 5190 176 email: info@barristermagazine.com Publishers: media management corporation ltd

p.10

Design and Production: Alan Pritchard email: info@soinspire.me.uk

00

the barrister

the barrister

03

Silk, Clerking and Trading Cases The BBC legal drama Silk has undoubtedly brought an element of charm about being a lawyer; whether as a slightly intimidating instructing solicitor such as Mickey Joy or head of chambers Alan Cowdrey QC.

By Gary L. Walters LL.B. Editor-in-Chief, StretLaw

M

any think they

these brown envelopes are now simply

little complacent with others’ feelings,

know

what

labelled as ‘Referral Fees’, behaviour

but who has an ear to the ground and

it takes to be

which many solicitors are keen not to be

who can relate to many at most levels

a

associated with. It may be true to say

(a social awareness that arguably not

it still happens, but it is a practice that

all academically gifted persons possess),

is no longer becoming acceptable.

and

successful

lawyer. truth,

In and

It

the truth often hurts, many probably

removes operational independence and

don’t, and the ‘many’ referred to are the

there is a real risk of conflict of interest.

‘general public’. Alas, it is the ‘general

produce

the

goods

(referrals);

someone who ‘gets the job done’.

If that is the traditional aspect of the job;

public’ that are serviced by lawyers,

I spoke with Diane King, a Clerk with

what is the modern equivalent. The IBC

daily. So why is it then little is known

some 14 years’ experience, who works

(Institute of Barristers’ Clerks) state in

about chambers, and little more about

at 2 Pump Court, London. I asked

how they receive their work?

Diane for her opinion on why television

2000 that 76% of clerks are men, with only 24% women in the field3. Thirty

portrays Clerks as working class, a ‘bit

years ago only a few women fulfilled

dodgy’ and risk takers:

this role, so it is moving in the right

During casting for any legal drama, and Silk is no exception, the ‘glamorous’

direction, albeit slowly.

roles of Barristers are often portrayed by

“Traditionally clerks were the coal boys.

handsome actors such as Rupert Penry-

They would collect the coal, work up to

A diverse range of clerks with an equally

Jones (Clive Reader) and attractive

stoking the fire, shine the (barristers)

diverse practical practice experience is

women such as Maxine Peake (Martha

shoes and if they become trusted, do

important. Cases that come in need to be

Costello). Neil Stuke is the Senior Clerk

the ‘Temple Run’. This would involve

handled diplomatically, egos need to be

of the chambers whose character, Billy

running

sealed

massaged, and if a Clerk does not have

Lamb, is bit of a rough diamond. As his

papers to chambers. As a result, the

a particular barrister free to accept the

working class name suggests, so is he.

clerk was born. Although the modern

instruction, it is never (or should never)

His accent and looks wouldn’t be out of

day version is a lot different, the patter

be returned to the instructing solicitor,

place in a Guy Ritchie film.

and persuasiveness is still present but

although it is known as a ‘Return’,

without the barrow boy inferences.

literally speaking it is not, more ‘trading

Unfair? Maybe. But according to Silk,

There is a recognised BTEC qualification

cases’.

the popular television drama, not so.

which clerks are encouraged to study for

The role of Clerk to barristers seems

and this goes a long way in dispelling the myth that clerks get by on just charm”.2

Sending an instruction back to a solicitor

It seems then that ‘Billy’ is a good

necessary evil which helps to keep work

required; after all, how else does one

representation

traditional

at the bar rather than being swallowed

get all those brown envelopes only to

clerking was all about: Male, cocksure,

by IHA's (in house advocates). Clerks’

stash them away out of guilt? Arguably,

not necessarily academically bright, a

always try and send to another barrister,

to be one for a ‘geezer’ or ‘(wo)man about the town’1. A certain charm is

with

the

of

red-wax

what

is bad practice, yet ‘trading cases’ is a

04

the barrister

or failing that, another set of chambers.

and being treated as a sub-servant to his

BTEC 2010-2011 Accessed 10.08.12

This not only builds confidence with

esteemed colleagues, modern clerking

10:08

the solicitors, but rapport with other

wouldn’t exist. Thanks Billy.

chambers. Negotiation skills are a key

3

element to any clerk, as important as a

update

barrister one might assert.

in

relation

to

figures

an was

Gary L. Walters LL.B. (Hons), PGCE

inaccessible at time of going to press.

(PCET) FE/HE (Dist.), Dip. Bus & Fin

Accessed 11.08.12 22:39

The East End barrow boy who was

Lecturer/Tutor:

Senior Clerk may be dying out in favour

B.Sc., and eLearning Facilitator

of a modern, operations-savvy Clerk,

Editor-in-Chief, StretLaw

LL.B.,

LL.M.,

M.Sc.,

but the crux of the role is still deeply ingrained.

© Gary Lee Walters, StretLaw™ 2012

This may seem way off the scope of ‘Billy’

1 infra 3, Traditionally men fulfil these

and his humble East End beginnings,

roles, although IBC data suggests this

but before he is dismissed too soon, it

trend is changing

is important to remember that without him collecting the coal, shining shoes

http://www.ibc.org.uk/about/

2 http://www.ibc.org.uk/education/btec/

A-Z Barristers Chambers online Article Submission Selected Links Expert Witnesses Book Reviews Tenancy Vacancies and Recruitment

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06

the barrister

am as progressive now as I was

think that we should start by identifying

touted

then!

the product which we are selling. I feel

approach is “profit sharing”; chambers

very strongly that good barristers have

can join forces with solicitors, create a

I'm not convinced that we should

experience and expertise which others

business, and share the profits. I could

abandon all we have achieved, and

do not, and cannot, possess, and that

see that some might be attracted to that,

use alternative business structures to

therefore we have a product of real

but even this simple (and naïve) version

join with solicitors, or others, and use

value. Advocacy in its widest sense is

could be problematic; a significant

venture capital to expand. I think the

an art, as well as a science; it covers

worry, at present, is that “profit sharing”

starting point is to run our existing

the whole range of advisory functions

could be a synonym for referral fees,

businesses as efficiently and effectively

from hospital bed to final settlement

which are prohibited for us.

as we can, and to use outside capital,

negotiations, from early commercial

or alternative business structures, to

advice

to

So what should we do? It’s tempting to

build on the existing business. There

resolving a commercial dispute, from

leave it there, like Ian Dodd, because

is a significant demand for a referral

police station interview to resounding

there is no universal answer. It’s obvious

profession, which I think will continue,

jury trial result. If we can't add real value,

that some chambers are destined to

and we are uniquely placed to provide

we probably don’t have a saleable product.

survive, and equally that others will

p.1

on

entering

a

contract

that service. There is huge value in what

round

for

this

alternative

not, but I think that we may have to

we have built up over the generations,

The next step is to identify the consumer.

recognise that, if we have value only in

and I think that we should preserve that

This may well be an area where we have

those cases which actually need top class

asset, and build on it.

to revise our thinking. One of the threats

advocacy and advisory consultancy, we

is that the middleman will cut us out,

will need to limit our numbers. The

I do not believe that size alone protects

for a variety of reasons, profit being a

small personal injury claim, the easy

chambers from the pressures facing us,

dominant one. If that is so, it means that

guilty plea, the trivial dispute – none

and so I do not think that mergers

we need to focus on the end user, either

justifies the expensive use of highly

are necessarily the solution. I think

instead or as well, which would mean a

skilled

that good business management is the

radical shift in our marketing efforts.

some of that work has been vanishing

best starting point, by which I mean

advocates.

Not

surprisingly,

over the years, and that encroachment

the whole range of elements which are

Marketing is essential of course, but

into our traditional spheres of activity

necessary such as recruitment, career

we do need to identify our potential

is bound to increase. I'm afraid that’s

development, staffing, financial control,

customers, and that isn’t always easy. A

not a very happy message, but I think

development opportunities, and so on.

tradition used to be that silks marketed

it’s inevitable that the Bar will have to

juniors, juniors marketed solicitors, and

reduce its numbers substantially. Sadly,

Turning to the suggestion that the

the solicitors attracted the clients. That

the dissolution of existing chambers is

alternative business structure may be

model won't always work nowadays,

bound to continue, but that could be

the way in which the Bar can save itself

because the development of larger

seen as an opportunity for the remainder

from being “left behind”, I can't help

firms has changed the dynamic, and

to strengthen, and possibly to expand

remembering ProcureCo, which may

the pressure for profit is invasive. My

areas of practice.

not have been a good idea, but which

perception is that the same applies in

was thought to be a wonderful way

all areas of practice, which is probably

We now find that we are competing with

forward. I fear the same for the notion

what has given rise to the different types

other professionals who are invading

that alternative business structures will

of chambers highlighted in Ian Dodd’s

our territory, without the expertise that

be the saviour of the Bar.

article.

we have, but we can't fight them off because we do not have access to the

I don’t mean that an ABS might not

That takes me on to alternative business

source of the work. This has been a

have an important part to play, but I do

structures. One of the reasons being

serious threat in many areas of work,

07

the barrister

and I suspect that it may even permeate

could set up the company, and invite

who speak at them, can be fantastic

the

commercial

others, who might be risk-averse, to

marketing, and make money. I hoped,

practice. What can we do to stop our

join as employed barristers. Outside

over 20 years ago, that it might be

work being done by practitioners who

investment could help to kick start the

possible to create a national seminar

provide a significantly lower quality

process, and provide funds whilst the

business (Lord Steyn was our first

service in high quality cases? We can't

income caught up. Whether or not a

key speaker, in 1991), but in those

always sell our expertise to those who

chambers invited outside investment, a

days we did not have venture capital.

are encroaching, perhaps because they

shareholder structure might work better

Publishing is another area which is

don’t realise just what value we can

for a national advocacy group, although

pursued effectively and vigorously by

add. If we can't reach them, we may

not necessarily.

some barristers, usually by having their

highest

levels

of

have to try to sell to the end user, so that

works published by an established

they understand what we offer, and that

One potential advantage is that such a

publisher; an area where we could

they should insist on using us, rather

structure would force us to re-consider

perhaps venture? A mediation business

than, say, allowing the solicitor to carry

our management systems. At present,

is

out work which we could do better.

many or most chambers, so far as I

mediators from all areas.

Easier said than done, I know.

know, operate a system of all barristers

obvious,

and

could

encompass

having an equal vote, and therefore

By creating that sort of diversified,

That takes me, though, to an area of real

an equal say in the management and

but concentrated, group, we might put

interest to me. I think that chambers

development of the business. That may

ourselves in a position to compete in a

will have to grow, one way or the other,

not be a practical way forward. It has

market which is becoming increasingly

into a position where they can have a

become increasingly clear over the last

difficult. We might, at the same time,

voice which can be heard by the public.

years that those with good business

increase our skills, focus our attention,

That might mean a national advocacy

skills should manage the business,

and

group, turning over ÂŁ50 million plus,

and that those who do not share that

sustainability.

prepared to spend 4% of turnover on

interest could profitably leave a small

advertising, and exploring new markets

group to manage. If that group does not

for advocacy. That sort of group could

produce satisfactory results then, just

afford to employ professional officers

like in a shareholder owned company,

Braithwaiteqc@exchangechambers.

(eg

they would have to be replaced. The

co.uk

finance,

HR,

marketing,

and

management), which would reap real

management

benefits. If, in addition, the percentage of

consist on non-lawyers, as well as

expenses over turnover was increased,

barristers. All of this would merely be

that would release more money to

following behind businesses in other

spread the message.

professional sectors, and in the wider

team

would

increase

our

profitability

and

Bill Braithwaite QC, Exchange Chambers

doubtless

area of commerce.

So far, none of this necessarily requires an ABS. Of course we would welcome

There are many smaller areas where

an injection of funds, to pay for the

a limited company might find that an

advertising, but why should a venture

ABS was necessary. I have thought for

capitalist want to pump money into our

many years that my chambers could

business? I have wondered for many

create a core business (advocacy in its

years whether the normal, shareholder-

widest sense), surrounded by several

driven,

structure

non-core businesses, all related and all

would work; the barristers who want

complementary and contributing. For

to invest, and run the risks associated,

example, seminars train the barristers

limited

company

The barrister magazine cannot accept responsibility for information supplied by other parties, views expressed may not necessarily be that of the editor or publishers.

08

the barrister

Exculpatory evidence and computer crimes

By Karl Obayi Specialist Lawyer and computer forensics expert

V

ery often, the focus for prosecuting investigators, is the discovery of incriminating evidence.

However, procedural rules in criminal jurisprudence, in most common law jurisdictions, require the prosecution or investigatory authorities to also provide details of any evidence that would seem to support the case of the defence.

As we know in the real world of criminal practice, this demand for fairness required by the rules, is better observed on paper than in practice. It is therefore the job of the defence team to conduct its own investigation in other to determine the presence or otherwise of exculpatory evidence.

No defence team must leave unchallenged, the digital evidence presented by the prosecution in a criminal proceeding. Such challenge, will apart from confirming or denying the position adopted by the prosecution also provide an opportunity for the discovery of exculpatory evidence.

Exculpatory evidence would amount to any piece of digital evidence that would seem to throw doubt on the case of the prosecution and particularly, any evidence that will aid the case theory of the defendant .

Although the rules require the digital expert to be fair and balanced in their investigation and testimony, it is often the case, that the investigation and report provided by the prosecutions digital expert is slanted towards providing responses to the remit of the instructions by the instructing party.

The resultant effect, is that the final product of an investigation or expert

report is often confined to the issues raised by the prosecuting party for the benefit of the prosecutions case theory.

the law because of the peculiar nuances associated with how the internet process works.

In my years of practice as a digital forensic consultant, I am yet to see a remit of instruction by the prosecution to its expert that includes - locating any exculpatory evidence that may reside within the exhibit that supports the case of the defence. The practical reality, is that issues that may be of interest to the defence are very often, not given attention or sometimes just a bare nodding reference.

For example, when a user visits a particular web site on the internet, there is the real possibility that computer programmes called scripts may be activated on the users computer thus resulting in the download of offending, pictures, 3rd party web links and audio files onto the user's computer. The user in this circumstance will not be aware of the download sub activities going on in the background. Consequently a search of the users computer may reveal the presence of offending pictures, documents or audio files downloaded from the internet.

The prosecuting team will always have at its disposal the use of digital experts and the use of expert reports when they require one. This much can not be said for the defence team. The defence team is often constrained by several factors in this area, chief amongst which is the non availability of funds to secure the use of an expert especially where the conduct of the case is not funded via legal aid .

The defence in such limited circumstances, are compelled to rely on the expert report provided by the prosecution. And as observed previously, these reports are in terms of scope slanted towards the needs of the prosecution. The defence will in these circumstances, require very large reading magnifiers to identify points of interest that may support its case theory.

For example, many successful prosecutions have taken place for crimes that involve the possession of offending images located within the computer of suspects. And it is a good thing that offending culprits face the long arm of the law. However, there is the very real possibility of innocent individuals finding themselves on the wrong side of

In this scenario, the prosecution is interested in showing that offending pictures as a fact , exist on the computer of the suspect. The prosecutions computer expert will provide a report showing the location, dates and times of the offending files on the users computer.

The point here is, that the prosecution expert will only be concerned with showing that these offending pictures or documents exist on the defendant's computer. Very often, the prosecution expert's report does not go as far as to investigate the possibility that the defendant may have had no knowledge of the presence of the offending files. It is therefore the job of the defence team to explore the presence of exculpatory evidence to show the absence of the requisite knowledge on the part of the defendant.

Now, for a section of the criminal law that requires the proof of the defendant's knowledge as it concerns the presence of incriminating pictures or documents on a computer, it will be necessary for

the barrister

the defence to show, that although these documents and pictures exist on the defendants computer as a fact, they got there without the knowledge of the defendant.

A digital forensic expert, employed by the defendant, in the circumstances being examined, should conduct an investigation that includes examining the defendants computer for: The presence of malicious download scripts on the suspects computer, The possibility that the created, accessed and modified date and times of all the offending files are the same or just fractions of a minute apart. (This means, the defendant could not have had any opportunity to see the contents of the offending files).

The fact that the offending files are located in an area, within the computer, usually not accessible to the user. For

09

example temporary folders created by the automated routine of the computer or the unallocated segment of the computer hard disk.

existence of exculpatory evidence. It is not enough to merely assert the possible presence of exculpatory evidence without proof.

A successful proof of the above 3 points by the defence, should provide empirical facts to support the lack of knowledge by the suspect, that these files were in his possession. In addition the defence would have moved from mere assertion of the existence of exculpatory evidence to providing empirical evidence that needs to be refuted by the prosecution.

Karl Obayi Specialist Lawyer and computer forensics expert Principal Consultant at - ITevidence www.itevidence.co.uk info@itevidence.co.uk

The take-away here, is that the defence must not rely solely on the prosecution expert evidence, no matter how compelling it seems. In the same vein, it will be a faulty strategy to rely solely on introducing such rebuttal evidence during the cross examination of the prosecution expert. The defence must endeavour to provide its own expert report that explores and shows the

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10

the barrister

by sentencers much earlier than

title] ten points in the criminal justice

suspicion that where young offenders

these guidelines suggest – for a

process where a more effective approach

have

century or more in fact.

can be delivered by professionals to

reprimanded that this has proved a soft

tackle offending behaviour by young

option for them; perhaps even sending

I have been invited to consider and

adults. It is contended by T2A that nearly

a

comment upon a new report by the

all of what the report recommends can

without real consequence will follow

Transition to Adulthood (T2A) Alliance

be implemented now, without the need

criminal behaviour. Where arguably the

– a body convened and funded by the

for new legislation. Whilst much of the

emphasis must be on diversion in this

Barrow Cadbury Trust, an independent

report and the success of intervention

way coupled with support and guidance.

charitable

is dependent upon action by criminal

A reparation adjunct might be a way in

standing commitment to penal reform.

justice

which such diversionary procedures can

Since 2009 this coalition of fourteen

barristers or solicitors e.g. the police

leading criminal justice, health and

and probation services, it appears to

youth organisations, have run 3 pilot

me that instructed advocates and crown

The report invites consideration of

projects in a bid to establish inter alia

prosecution lawyers have at times a

the PROSECUTION AUTHORITIES to

how offending behaviour for 18 to 24

significant part to play in the process

take greater heed in any prosecution

year olds can be reduced and greater

envisaged.

process of ‘lack of maturity’ of

p.1

foundation

with

a

long

professionals

other

than

compliance with court orders can be achieved.

been

message

warned,

that

cautioned

lenient

or

treatment

be enhanced.

any

given young adult. It recommends that As Dame Anne Owers [a former Chief

the police and the CPS lawyers should

Inspector of Prisons] in her introductory

consider such an aspect, alongside

The report brings together a thought

remarks to the report states “Blowing

current

provoking analysis of research into

out the candles on an 18th birthday cake

factors

young adult offenders which should

does not magically transform anyone

in line with similar considerations by

enable practitioners to consider the way

into a fully functioning and mature

probation and sentencers which now of

in which this important age group are

adult.”

course take place later in the process.

dealt with, within the criminal justice

’youthfulness’ tending

amongst

against

the

prosecution

The CPS must of course use the public

system from prosecution to sentence

Most of the points identified have

interest test when deciding to charge

and even before.]

implications for barristers and solicitors

an offender following an arrest and it is

and all have implications for criminal

contended by T2A has the opportunity

It is of central importance because of

justice professionals. Within the space of

of

the startling statistics that disclose that

this article I only have the opportunity to

works with the police and the youth

whilst young adults (16 to 25 year olds)

raise two or three for your consideration.

offending service or probation service

make up only 9% of the UK population

The

for

to discontinue any prosecution at any

they account for one third of all those

appropriate DIVERSION services and

time where appropriate. This may be an

sent into custody each year and a third

mechanisms to be in place for young

opportune time to make suggestions to

of the probation service’s caseload.

adults. Whilst we are now familiar

the CPS Code for Prosecutors. There is

According to criminological research

with the process that kept many young

a consultation process being undertaken

not only are they the most likely group

people outside the full ambit of the

at this moment, which can be accessed

to commit a criminal offence but also

force of the criminal justice system by

through the CPS website.

with the right intervention, the most

police warnings or cautions the report

likely to desist from crime.

emphasises the need for there to be

As to SENTENCING the report asserts

linked services and structures to such

that

The report ‘Pathways from Crime: Ten

procedures either before charge or

should support the sentencing process

steps to a more effective approach for

after. Supporting such young adults with

by ensuring that lack of maturity is

young adults in the criminal justice

pre or post arrest drug, alcohol and

identified. Pre sentence reports should

process’ to be found at www.t2a.org.uk/

mental health services. Such services

consider the maturity of all young

pathway should be read by practitioners.

to be commissioned in partnership

adult offenders and clearly recommend

It essentially outlines[as it declares in its

with the police. There has been a

and advocate to the court an effective

report

outlines

the

need

ensuring

criminal

that

that

justice

individual

professionals

the barrister

11

response and where appropriate a

trouble without any support or guidance

that have a role to play in the criminal

robust community based intervention.

beyond the ‘stick’ of future custody. The

justice system to consider and you

This is important not just because of

statistic highlighted by the T2A report

as practitioners may be able to start

the SC’s definitive guideline suggests it

that most reoffending by young adults

to implement some of the processes

is something to take into account but

on release from custody occrs in the first

discussed in the line of your work.

because potential sentencing options

3 months is no surprise. That the report

such as restorative justice which show

recommends

plans

In the same way that youths require a

high levels of victim satisfaction and a

and ‘through the gate’ peer mentoring

distinct approach within the criminal

good impact on reducing offending can

services for young adults who are sent

justice system the T2A make a strong

be an effective intervention for young

to prison is no surprise and in the pilot

case for arguing that young adults also

adult offenders as it is for those who are

schemes disclosed real benefit. These are

require such an approach.

under 18 provided the right assessment

certainly effective with youth offenders

is made

and yet rarely available to young adult

They would be delighted to receive your

offenders. Clearly this we would all see

comments – www.t2a.org.uk

of those whose behaviour is

likely to be challenged by such contact.

RESETTLEMENT

as a laudable proposal but it clearly has On the issue of custody the reports

intensive resource implications.

asserts and I have no reason to doubt with

accuracy

that

“young

adults

The conclusion to the report asserts:

represent a third of those sent to prison[sic] each year. The majority are

1. ” It is in all our interests to ensure that

held on remand or are serving short

these young adults go onto lead crime

custodial sentences, which have been

free lives, fulfil

shown to be particularly ineffective at

their

reducing offending.” I well remember

and give back

the time in my early career when the

positively

suggested premise for ensuring young

to

offenders

avoided

criminal

potential

their

conduct

communities.”

in the future was to argue [if custody

That we can all

was deemed to be the only option] for

agree with.

a ‘short sharp shock’ or the ‘clang of

2. “ The current

the prison gates’. Of course one could

criminal justice

see that taking a youngster or immature

process

young person from his or her home

simply

failing

environment however deprived was

young

adults,

removing him or her from what might

often

making

now be called their ‘comfort zone’ and

them more not

placing them briefly in an institution

less

for a week or so but not much longer

commit

than that ,was quite frightening. It

This I suspect

ensured [so the theory went]that they

many

did not become used to the custodial

agree with if not

environment but that it still held some

all.

is

likely

to

crime” of

us

fear for them such that their conduct would improve when at liberty by reason

The T2A report

of this as a deterrent. Of course by and

helps

large the young adult would be returning

many

to the very environment from which

issues

they came and which first led them into

fore

raise of

the

to

the

for

us

His Honour Judge J M Burbidge QC.

12

the barrister

Friday the 13th : Swift but not quite so Sure Justice

O

By Richard Atkinson, Chair Criminal Law Committee, Law Society ne can’t help but

because it was an issue raised by the

efficiency and speeding up the system.

wonder whether the

defence community?

The increased use of Video technology

date for the launch

This subject was aired in parliament in

clearly does have a place to play in

of the much awaited

the summer of last year and Baroness

improving efficiency of the CJS and the

white paper (Swift

Browning (Minister of State, Home

additional £10 million pounds that the

and

Justice:

Office) responding to “some commentary

Minister said was to spent on this is

The Government’s Plans for Reform of

from within the legal community -

welcomed; but if the maximum benefit

the Criminal Justice System) was not

of the use of Video technology is to

chosen with rather more thought than

particularly from those acting on behalf of those suspected of an offence”2 told

some of the ideas that have gone into

the House of Lords on 12th July 2011

be harmed in the process, then those

it! The White Paper contains a number

that “, it is our intention in autumn this

on the ground particularly defence

of proposals to be piloted and enacted.

year to consult on matters relating to

practitioners

This is the government’s way forward

bail more generally and to the conditions

and what I mean by consultation is

for criminal justice. Whilst many of the

that apply to them” and “I hope the

significant and proper engagement, as is

ideas are yet to be crystallised and some

House will be reassured that we are

now taking place over the digitalisation

are subject to evaluation they are most

most certainly listening to people and

of the CJS, and not simply being told

definitely not for consultation.

intend to consult on those wider issues

what is going to happen as happened

It is no surprise that the colour of this

that have come to the forefront as a

with virtual courts.

paper is white and not green for this

result of the legislation before us …. We

Video

government does not appear to favour

will of course consider any observations

custody, prison to court video link for

consultation, certainly not with the

that noble Lords make in that area in

appropriate hearings and the use of

defence community. It demands action

the course of our deliberations today

live link for witness to be able to give

whatever the potential consequences.

evidence remotely could deliver a more

The opening words of the Minister, Nick

and will come back to those at another time.”3 The White Paper would surely

Herbert in his forward to the Paper

have been the perfect place to set out

savings.

focus on the need to reduce delay in

the proposals to address this issue and

dogmatic persistence with the virtual

the Criminal Justice System (CJS) and

yet, perhaps not so surprisingly, the

courts initiative brings no credit to

unsurprisingly we find in the paper the

White Paper is silent upon this issue.

those who seek to increase the use of

suggestion that delay is, “a tactic that can be used to favour a defendant”1

The Paper enthusiastically supports the

video technology in courts. The damage

Stop Delaying Justice initiative in the

to justice through the inappropriate

yet many practitioners will know only

use of video technology for the first

too well that the principal cause of

Magistrates’ Courts, yet anyone who saw the first episode of “the Briefs”4,

delay in cases coming before the courts

whilst supporting the even handed

defendants being sent to prison without

does not take place after a defendant is

application of the initiative to the

ever having seen their lawyer face

charged, but before. The time spent by

prosecution as well as the defence, must

to face is recognised by many within

suspects on police bail after they have

surely question where the justice lay in

the CJS; defence lawyers, prosecutors

been arrested can be many months and

adhering to this initiative.

and magistrates alike, yet still the

in some cases years. Yet this important

For the future the Paper looks at

government persists with this rather

subject is ignored in a Paper purporting

flexible courts and the greater use of

than concentrating resources where

to address delay in the system, is this

video technology as ways of improving

they can benefit both efficiency and

Sure

be achieved, and if Justice is not to

need

conferencing

to

be

with

consulted

those

in

efficient system with genuine financial However

the

slavish

and

hearing of a case which can result in

13

the barrister

justice. When the minister was asked;

these changes. Early indications suggest

were he to find himself in court would

little

he be happy if he was unable to meet

extended weekend working especially

1 Paragraph 7 Swift and Sure Justice:

his lawyer face to face, he declined to

with the prospect of significant extra

The Government’s Plans for Reform of

answer. Perhaps even he recognised

cost to the system for processing the

the Criminal Justice System.

that the “Justice” offered by the virtual

same number or even less cases, if

2

courts system was not quite so sure.

the present trend in the number of

July 2011)

As well as greater use of video technology

cases coming to court continues, than at

3 Hansard, 729 HL Deb col 610 (12 July

the

courts.

present. In an era when we are told that

2011)

Drawing inspiration from the operation

there will no more money and indeed

4

of the courts during last summer’s

the prospect of further cuts to public

following the work of Tuckers solicitors,

disturbances, the white paper sets out a number of options5 which are to be

spending, persistence with this must

2 August 2012

inexorably lead to harmful cuts in other

5 Paragraph 85 Swift and Sure Justice:

piloted. Some may well have merit but

parts of an already overly stretched

The Government’s Plans for Reform of

yet again there has been no meaningful

system, directly impacting upon justice.

the Criminal Justice System.

consultation before these pilots are to

Sadly this Paper’s concentration on

be rolled out, indeed there does not

speed and the government’s aversion

Richard Atkinson

even appear to have any research to see

to proper consultation with defence

Chair Criminal Law Committee

whether the claims of the government as

practitioners will ensure that if its

Law Society of England & Wales

of the wishes of witness and others who

proposals are implemented then Justice

participate in the system really want

in this country will be less, not more,

paper

offers

flexible

enthusiasm

from

anyone

sure as a result.

for

Hansard, 729 HL Deb col 609 (12

The

Briefs

–

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documentary

14

the barrister

Stress in Barristers: How it develops and how to reduce it?

By Layla Ho BA (Hons) BSc (Hons) MSc, Occupational Psychology student at the University of Nottingham

I

n 2009, David Cameron began

to the level of demand required by

as it is only a small proportion of time

to stress the importance of

the job, where low control with high

spent socialising with other barristers

national well-being. It is a

demands result in increased levels of

in comparison to the total time spent

fact of modern life that work

stress. Job demands are psychological,

working.

holds

in

organisational, social or physical aspects

society as individuals spend

of the job that require psychological and

Average full-time hours in the UK are

the majority of waking hours preparing

physiological cost. Job resources are the

43.6 per week. The research conducted

for work, working or engaging in work

psychological, organisational, social or

found that self-employed barristers in

related activities. Thus stress as a result

physical aspects of the job that function

the West Midlands work an average of

of work has a negative effect on levels

to reduce job demands. Support refers

56.5 hours per week, 3.5 hours above

of well-being. While there is a plethora

to the mediating effects that social

the average barrister working hours

of research in the effect of stress in

support has on occupational stress.

stated in a report published by The

a

central

place

a number of occupations, the practice

Bar Council. While the long hours may

of self-employed barristers has been

The research found that of the 3 aspects

be necessary it decreases recovery

questionably ignored. The purpose of

of job stress stated, it is job demands

time which can in turn increase stress

the research summarised below was

that caused the highest levels of stress

levels significantly. If recovery time is

to rectify the omission of stress in

in barristers. Having to work quickly,

not sufficient there is an increase in

barristers. A number of factors (such

intensively, with a high level of effort

negative affect caused by work resulting

as stress and work-life balance) were

and with little time to complete tasks

in health problems with varying levels

measured and compared to levels of

has resulted in increases in levels of

of severity. Some of the most commonly

well-being. The results of the research

stress. This is added to and followed

documented health problems that occur

showed that while long hours as well

closely by the control aspect. While

as a result of stress are headaches,

as poor work life balance causes a

it was found that barristers have the

sleep disturbance, fatigue and appetite

slight decrease in well-being, it was

opportunity to learn new things through

problems. Aside from health problems,

high levels of stress that has the most

work, it was also said to be repetitive

high

significant negative effect on well-being.

and requiring a high level of skill or

dependence on drugs (both legal and

Workplace

cognitive,

expertise. Surprisingly, even though

illegal) and/or alcohol. Stress, felt over

behavioural and physiological reactions

barristers generally work alone and are

a prolonged period of time can lead to

to extremely taxing aspects of work

self-employed, high levels of support

chronic syndromes such as burnout.

organisation, environment and content.

was found. This support stemmed from

Burnout is listed in the International

The

good

colleagues,

Statistical Classification of Diseases and

Model (JDCS) is the leading model

with high levels of understanding from

Health Problems as a medical condition,

for predicting job stress. The JDCS

other barristers. However this support

symptoms of which include;

characterises jobs by the level of control

was insufficient to neutralise stress

an individual can exert in comparison

resulting from other sources, perhaps

Job

stress

is

the

Demands-Control

Support

relationships

with

•

stress

levels

can

result

in

either persistent and distressing

the barrister

15

complaints of feelings of exhaustion

The Systems Approach to Job Stress

tertiary intervention. Finally, tertiary

after minor mental effort, or persistent

is the most appropriate for barristers

interventions should be readily available

and distressing complaints of feeling

to be familiar with, It looks at three

throughout all of the practice of a barrister

of fatigue and bodily weakness after

different levels of interventions (primary,

to combat any stress symptoms as early,

minimal physical effort;

secondary and tertiary), and targets the

quickly and efficiently as possible.

most prominent factors of each level. •

at least two out of the following

Primary intervention, often known as

Further research is being carried out

six distress symptoms: muscular aches

stress prevention, is the most effective.

to establish more specific stressors and

and pain, dizziness, tension headaches,

This would employ techniques to reduce

effective methods to combat these. For a

sleep disturbance, inability to relax, or

effect of stress affecting the barrister before

stress relief solution or more information

irritability;

negative effects become common place.

on this research please feel free to contact

•

the patient is unable to recover

Secondary intervention aims to modify

the author.

from the symptoms by means of rest,

stress responses, which is the second

relaxation or entertainment;

most effective method in preventing a

Layla Ho BA (Hons) BSc (Hons) is a

reduction in well-being and increase in

MSc Occupational Psychology student

It was found that there are a high

ill-health. Tertiary intervention is often

at the University of Nottingham and is

percentage of self-employed barristers

the least effective however is the most

a director of Lehias Ltd. Her current

who

the

common. It is concerned with dealing

research focuses on bringing her legal

profession, with a leading reason being

with minimising the effects that stress

and psychological knowledge together to

long hours and high stress levels. If job-

have already caused in barristers, and

improve lawyers work experiences.

stress can be prevented, alleviated, and

can also be seen as stress management.

managed then perhaps self-employed

In essence, this approach suggests that

barristers would be more inclined to

stress should be a consideration even

stay in the profession. The results of the

before symptoms of stress are felt, so that

research conducted indicated that self-

more effective coping and management

employed barristers were ill-prepared

can be employed.

were

considering

leaving

for the levels of stress accompanying the career and ill-prepared to cope with the

If each relevant stage was provided from

feelings of stress accompanying the role.

training through to the retirement of

What is important to take away from the

a barrister, well-being would increase.

results of the research is that tackling,

Primary interventions should be applied

managing and reducing job stress needs

and

to be a topic taught to those training to

pupillage years, as well as at regular

be a barrister. The levels of qualification

intervals though out a barristers working

and training that are required to become

life. If these are highlighted early and

a barrister allow for stress prevention,

emphasized, the effects of job stress may

coping and management training to be

not affect the barrister as significantly as

completed. Further, chambers should

it currently does. Secondary interventions

take into account the high levels of stress

should be applied during pupillage and

and provide stress reduction facilities or

throughout practice as this will reduce

services. There are numerous ways an

the prevalence of individuals suffering

individual or chamber can combat stress.

from stress symptoms that would require

taught

during

the

BPTC

and

16

the barrister

Expert discussions to narrow the issues in a dispute are an extremely useful tool in the litigation arsenal but parties ought to be aware of the risks and alternatives. Mark Solon reports.

E

xpert

discussions

centre of some controversy. Last year in

are not advocates for the parties, and

have

been

Jones v Kaney [2011] the Supreme Court

it is not their role to negotiate or to

adopted

dispensed with 400 years of expert

seek to settle the action at an experts’

litigation

immunity from suit to find that Dr Kaney

discussion.

and

could be sued for (allegedly) conceding

are widely felt to

too much in an expert meeting. Some

Where there are concerns over an

be a useful tool in refining the issues

senior voices within the legal profession

experts’

in dispute. However, many experienced

believe the Court should go further and

to the CPR states that lawyers may be

litigators have a horror story about

decide that expert meetings be open, not

present at the meeting if all parties

a meeting that has gone badly, and

without prejudice. Roger ter Haar QC,

agree, to answer any questions from

litigators ought not to forget that there

who acted for the successful appellant

the expert. This is highly controversial

are other measures available to them to

Mr Jones against Dr Kaney, said: “Often

and the prevailing view is that lawyers

seek clarification.

things go drastically wrong during

should not attend. However, where

expert meetings and you can’t undo the

lawyers do attend it should be to answer

Experts meetings fall under part 35.12

damage done by cross examining on the

questions about the law and ensure that

of the Civil Procedure Rules (CPR),

decision making process.”

the experts cover the issues directed by

heavily by

the

community

performance,

the

protocol

the court. Lawyers will also be able to

although the provisions are notably brief. The court may direct at any stage

While this is certainly true, ensuring that

prevent experts from straying into areas

a discussion between experts; requiring

an expert is fully trained and prepared

outside of their expertise and ensure that

experts to identify and discuss the

for this meeting will limit the potential

one expert is not bullied by a stronger

expert issues in the proceedings and,

for it to go wrong. While one expert’s

opponent into submission.

where possible reach an agreed opinion

personality may be more forceful than

on those issues.

another, there are vital techniques that

One

can and must be learned by experts if

meetings taking place without prejudice

The court is likely to direct the issues

they are to take part in the adversarial

is that it affords them the space to

to be discussed and to stipulate that

process. Jones v Kaney opens the door

honestly address the issues without fear

experts must provide a schedule of the

to experts being sued for negligence

of embarrassment or cross examination.

areas on which they agree and disagree.

and experts must be reminded of their

However, where there are concerns that

overriding duty to the court.

a discussion will not help clarify the

undoubted

benefit

of

experts

issues in dispute or may even exacerbate

The court hands are tied when it comes to full disclosure of the discussions, as

Furthermore, experts must be reminded

the situation, there are other options

expert meetings are without prejudice

of what their role is in the discussion.

available to of the other provisions

and under no circumstances may be the

They should take no steps to resolve the

under the CPR.

subject of cross examination at trial.

legal issues in the action, or any other

This level of protection has become the

matter outside of their own expertise.

Firstly, correspondence may be used in

Expert witnesses instructed in litigation

as far as is appropriate, to narrow the

the barrister

17

expert issues. Part 35.6(2) provides

achieve the same result as an experts’

contact Catherine Butcher on

that written questions may be put

discussion without any of the associated

cbutcher@bondsolon.com

once, within 28 days of service of the

risks. However, it is not essential to

experts report. The questions must be

put written questions to an expert if it

Author

for the purpose of clarification only.

appears that a discussion will be needed

Mark Solon

Written questions on experts’ reports

in any event.

Managing

Director

of

Bond

Solon

and Solicitor

and experts’ discussions in civil cases were CPR innovations and the purpose

The CPR makes available several tools

of the rule is to facilitate a helpful and

to assist parties in ensuring their expert

Bond Solon

open exchange of information after the

issues are resolved well. However, the

Paulton House,

expert’s reports have been served and

clearer and better prepared the expert

8 Shepherdess Walk,

prior to trial.

is on their role, duties and the agenda,

London N1 7LB

the more likely the interests of the clients will be well served.

Office: +44(0)20 7549 2549

but should enable the parties to clarify

Bond Solon’s 18th Expert Witness

marks@bondsolon.com

and narrow the real issues in dispute.

Conference

Website: www.bondsolon.com

In some cases correspondence will

November 2012. For more information

This provision is not intended to result in cross examination by correspondence

will

take

place

on

9

STEP Membership for Barristers Why join STEP?

Becoming a full member of STEP enables you to: • Use the designation TEP to showcase your specialist expertise in the field of trusts and estates • Increase your profile in the industry • Network with industry peers, including fellow barristers, solicitors and accountants • Become more involved within the industry, with opportunities to speak at conferences, join special interest groups and sit on industry related committees • Demonstrate a dedication and commitment to the field

How to join STEP

Any practising barrister or anyone with rights of audience in relation to proceedings in the High Court can join STEP through our Advocacy Route. Apply by submitting three opinions demonstrating your trust and estate experience.

For more information about STEP call +44 (0)20 7340 0500 or visit www.step.org/advocacy to download an application form

Join STEP, the professional body for the trust and estate profession worldwide.

18

the barrister

Intelligent marketing will help barristers raised the bar

By Douglas McPherson, director of Size 10 ½ Boots, a business development agency that works solely with the professional services

W

hile it could

The trouble is, as The Bar is a world not

asking yourselves the types of questions

be

argued

experienced and in some cases not in-

mentioned above and then once you

any

terested in marketing, how do you de-

have those answers, decide how you are

successful

sign and implement a plan that will tick

going to deliver your advocacy whether

marketing

both boxes?

you are serving to your solicitor clients

that

of

profes-

or your lay clients. Are you going to be a

sional services has to promote the skills

As a starting point when did you last sit

modern Chambers or a more traditional

of the advisor in conjunction with pro-

down and work out what you were re-

set? Are you going to trade on your spe-

moting the firm, the requirement for The

ally all about? Or asked yourselves why

cialist knowledge of niche areas or base

Bar to push both is even more acute.

solicitors and lay clients come to you

your offering on higher service levels

rather than local or even national com-

and closer working practices?

Chambers are not a firm. It could be ar-

petitors? Looking at your most regular

gued that a chambers is just an address

clients, why do they like working with

Whatever decisions you come to, your

that houses a collection of individuals

you? Why do they keep coming back?

core brand needs to be communicated

that provide very different services in

The answers to these questions are the

through every channel – through your

very different ways. Aside from their

foundations of your brand, the promises

collateral, your website and your prem-

shared address there may not be any

your name makes in the minds of your

ises through to the personal contact

common bonds or obvious similarities.

clients.

your clerks and your members have

This alone makes marketing in the traditional sense difficult.

with your chosen target market.

Chambers are no different to any other business in that if it is going to succeed

If it’s proving difficult to start that con-

Then you need to consider your ‘target

in creating and promoting a consistent

versation and you’re not totally sure

market’, the clients that give you your

brand, all of its members must be agreed

why people like to work with you, my

briefs. What do they react to? How do

on what that brand should be. The fact

suggestion would be to ask them. Af-

you capture their attention? It’s impos-

Chambers is a collection of individu-

ter all if you want to know why someone

sible to say whether solicitors are drawn

als rather than a firm in the traditional

buys something, surely the easiest way

to a set for the first time because of what

sense makes establishing these core val-

is to ask the people who already buy it?

they know about Chambers or because

ues even more important. If you are go-

For years now solicitors and account-

of what they know about its tenants.

ing to market your name alongside your

ants have taken an increasing interest

However one thing is for sure, as the

members’ names, there needs to be a

in what their client’s think about them.

legal landscape continues to morph and

common bond law firms can latch on to,

They frequently conduct qualitative re-

become an increasingly competitive en-

a consistent message that will help them

search programmes where an external

vironment; the requirement to promote

recognise the benefits of working with

party will probe on every area of their

both your brand and your talent is now

you rather than your competitors.

clients’ experience.

continue to attract the levels of work you

The good news is this is not an onerous

The resultant data not only gives them

want to.

task. All it involves is sitting down and

an insight into what their clients think

an absolute necessity if you are going to

the barrister

19

and where they need to improve but

single database (and taking the time to

eral. And “you” means “you”, not your

also strengthens the overall client rela-

clean it to make sure everyone on the

clerks! The good news is moving away

tionship (after all they’re so important to

list is still in that position) will give you

from advertising and seminars will save

the firm that they’ve invested time and

a universe to educate, both in terms of

you time and money.

money to garner their opinion). On a

what Chambers stands for and in terms

more practical level it always generates

of the individual skills of your tenants.

My suggestion is you adopt ‘intelligent

new work.

Over time you can add more names from

marketing’. Intelligent marketing costs

each firm and also grow the database to

less but delivers more. It is also meas-

When was the last time your senior

include other professionals who could

urable and more than achievable if

clerk or other employee, never mind an

act as referrers of work. You could also

you marshal the resources you have at

external agency, conducted a similar ex-

include relevant press contacts so they

your disposal (your fellow members, the

ercise for you?

too are kept up to date with Chambers’

clerking team, your website, your case

development.

management system and inexpensive

But I digress.

Once you know how

add-ons like MailChimp), assign respon-

you’d like to be perceived, it’s important

Now you have your identity, your inven-

sibilities to each and focus on marketing

to work out what you actually have to

tory and your audience. The next ques-

solely to the targets most likely to actu-

sell - yes “sell”. This is a business after

tion is how do you get in front of them?

ally generate work.

all and the only difference between you

The immediate default is advertising

and Amazon is that your product is your

and CPD seminars and again, I’m not

The key activities to consider (and while

knowledge and your experience.

You

being disingenuous to The Bar, this is

you don’t need to embrace them all, we

need to list out your skills, your experi-

the default of the professional services.

can prove the more you can incorporate

ence, your knowledge and the successes

However

your set has behind them because this is

is

your inventory.

that needs to

a

it

default

be rewired if It is this level of focus that is sometimes

you are going

lacking in the professional services, not

to make any

just at The Bar but in legal and account-

headway with

ancy practices of all different sizes. By

your market-

focusing on what you have to sell you

ing and really

will be able to focus on who to sell to.

drive

This will immediately make your mar-

bers’ message

keting more effective, more cost–effec-

home.

tive and less time consuming for those

bad news is

involved.

this is going

So who do you sell to? The bulk of the

to involve you

work has already been done. You have

making more

a current clientbase, you have a lapsed

personal con-

clientbase (those who you work for in-

tact with ex-

frequently or past clients who no longer

isting

use you or anyone else in Chambers)

prospective

and somewhere you will have several

clients

legal directories listing the firms by lo-

with the busi-

cation and by practice area.

ness commu-

Combining these three strands into a

nity in gen-

ChamThe

and and

20

the barrister

into your personal marketing mix the

following sweeping generalisation of

I couldn’t have put it better myself.

more successful your marketing will be)

solicitors, accountants and barristers:

These quotes illustrate that while it is

are:

even the most prolific business develop-

necessary to build a consistent and at-

ers let themselves down with a lack of

tractive brand in terms of Chambers,

structured follow-up.

that brand will never fly unless both

1.

Networking. Are you visible in

the right places?

Do the right people

the brand and the efforts of the clerk-

know you are the right person to speak

The excuse is there’s no time. That the

ing team is underpinned by a generous

to?

next brief takes over as soon as you’re

dose of direct marketing by the barris-

back at your desk. This is nonsense.

ters themselves.

2.

Spend more quality time with

There is always time to drop a new con-

solicitors. A coffee at court, a beer at the

tact a quick email, time for a coffee or

end of the day, a spot of lunch or a game

even time for a good old fashioned tel-

of golf. Engineer the chance to talk so-

ephone call.

Douglas McPherson, Director

cially about normal stuff not just about

Admittedly your clients will rarely have

Size 10 1/2 Boots

the case at hand.

work for you there and then but your only objective is to stay visible and stack

t: 077865 40191

Find the right publishing and

the odds of a future instruction more

e: douglas@tenandahalf.co.uk

speaking opportunities. What are your

heavily in your favour. That will not

w: www.tenandahalf.co.uk

particular areas?

Identify the events

happen until you introduce a “Culture

and press that supports those sectors

of Follow-Up” where acknowledging a

and volunteer your services.

meeting and asking for future face time

Douglas is a director of Size 10 ½ Boots,

is a necessity rather than a preference.

a business development agency that

3.

4.

Distribute practical informative

works solely with the professional ser-

e-bulletins rather than unnavigable and

If all of this sounds a bit uncomfortable

vices. More details on their unique ap-

overly-long technical papers (the type

or even totally unnecessary (after all you

proach to marketing The Bar can be

that take so long to write).

have clerks to do all this don’t you?) let

found at

me leave you with the two quotes.

www.tenandahalf.co.uk.

gramme in a new light. Design engag-

The first is from the Head of Family at a

Alternatively you can request a copy of

ing interactive workshops rather than

large Midlands practice who was talking

their special report (How barristers can

the same old dry seminars dripping in

about her desire to get closer to a set she

use business development to squeeze

bulletpoints.

uses. “I know the head clerk and he’s

the best results from even the smallest

great but he won’t represent my clients.

marketing budget) by emailing

Using your website to maxi-

I need to get to know the individual

doulgas@tenandahalf.co.uk

mum effect. Your page should be your

barristers so I know which barrister is

CV.

List significant cases, showcase

right for each client because it reflects

your writing or speaking endeavours,

on me. If I had that insight they’d get

frequently refresh the content so people

more work!”

5.

6.

Look at your seminar pro-

have a reason to come back.

The second is from the senior clerk in a However these activities will only work

leading set in the North West. “The only

if you complete your rewiring by estab-

difference between a barrister earning

lishing a “Culture of Follow-Up”.

We

£250,000 and one earning £60.000 is

only work with professional service

the one on £250,000 spends time with

firms and so are qualified to make the

their solicitors”.

21

the barrister

How to survive the 21st Century Jitendra Valera (JV), chief marketing officer at IRIS Legal, the market-leading chambers practice management software provider, says too many chambers make short-term tactical decisions and should be more strategic and forward thinking when selecting technologies‌

T Introduction

aware that it is not just the technology

he

challenge

Client centricity

that

they choose but the technology that

most chambers face

their clients are choosing that should

Chambers

is

influence the decisions that chambers

savvy. Technologies that help deal with

make.

clients who expect more in terms of

short-termism

which

is

enforced

upon them due to

are

responsiveness,

getting

more

communication

client

and

the nature of their

Whether it is an existing law firm client

instant feedback will become more

structures and the limited ability to

of today, direct commercial businesses

commonplace.

invest strategically in what is arguably

or consumer clients of the future, they

as client self-service portals that are

the most exciting and biggest change

are increasingly dissatisfied with the

tightly integrated with practice and

taking

ranking system and are reaching out

case management systems, as well as

online to find, research and interact

advanced communications technology

with barristers with relevant experience

are being demanded.

As a result, the criteria used by chambers

of their type of case who can deliver

barristers can keep clients in the loop

to assess technology is often limited.

direct high quality legal advocacy.

24/7 and automate communication so

place

in

the

legal

services

environment.

Far too much emphasis is placed on

Technologies

such

This means

that messages can be triggered at pre-

the functionality needed right now,

Many other clients, especially larger

the cheapest price, the latest trend or

corporate businesses, are much further

gadget or because the chambers ‘down

advanced in terms of their own use of

Both barristers and chambers should

the road’ has it.

technology and expect chambers to

also become more familiar with online

keep up. Clients increasingly demand

collaborative technologies where they

Forward thinking chambers take a more

that chambers invest and meet the

can access, share and collaborate on

strategic

decisions

requirements for integration into their

documents with clients, clerks and

are more aligned with a vision of what

internal systems and adhere to higher

other parties where needed in a secure

technology can do to help chambers

levels of security standards before they

and easy to use online environment,

compete and be successful in the new

even consider providing any work to the

accessible anywhere, anytime.

legal world. They adopt a vision and

chambers.

approach

where

culture where chambers are run like a

set events.

Importantly,

these

advances

in

business and are constantly monitoring

Embracing

and

technology mean that barristers and

ways in which they can win, retain and

investing wisely in security and other

chambers will have a much better

service clients, grow their income, be

valuable technologies that integrate well

understanding of their client base by

productive and save time and money to

with client systems not only gives clients

having all the necessary information and

maximise profits.

a reason to do business with them but

analysis they need at their fingertips.

helps create opportunities to promote

Understanding who their top ten clients

the provision of direct legal services to

are or how much revenue they are

compete effectively within the changing

generating at the touch of a

legal landscape.

button helps them operate more

Changing buyer behaviours Progressive chambers are also acutely

online

technology

p.26

news

22

the barrister

Tracking changes to legal ethics – LSB research suggests the way ahead On the 5th of September 2012 the Legal Services Board published a report by a team led by Professor Richard Moorhead of University College, Director of the Centre for Ethics and Law at London, outlining how professional ethics in the legal sector may be tracked over time. The LSB commissioned the research to support the ongoing evaluation of the impact of the Legal Services Act 2007.

The Designing Ethics Indicators for Legal

Services Provision report investigates how empirical research can be used to track ethics across an increasingly diverse legal services market consisting of a range of different activities and providers both within and outside of the main legal professions.

The report explains the case for taking ethical monitoring more seriously, outlines a series of tools which may assist in monitoring the likelihood of individuals complying with the core ethical obligations

of legal services and sets out a proposed programme of work designed to produce detailed data over time.

It argues that this is particularly important at present as the move to outcomes focused regulation in place of the traditional approach of detailed prescriptive rules is leading to an ever sharper focus on the core professional ethics of those supplying legal services.

Bar Council Chair Condemns Secret Court Plans Bar Council Chair , Michael Todd QC, has condemned the Government's planned extensions to the use of Closed Material Proceedings (CMPs), endorsing the arguments of Liberty, Reprieve and the Special Advocates who participate in these proceedings.

Michael Todd QC, Chairman of the Bar Council, said: "Over time, our justice system has developed a strong reputation

internationally, largely as a result of our respect for the Rule of Law and due process. Proposals to extend the use of secret courts, and in particular to deny more claimants the right to challenge evidence available to the other side in the case, threaten to undermine the principle of open justice and make a mockery of our attempts to export the Rule of Law abroad.

the press and from lawyers instructed in these proceedings, the Special Advocates.

It is time for the Government to sit up and listen."

"These plans have not only alarmed organisations which promote civil liberties; they have also drawn strong criticisms from

Bar Council calls for new justice secretary to put access to justice first The Bar Council, which represents barristers in England and Wales, has called on the new Secretary of State for Justice, Chris Grayling, to put access to justice top of his priorities as he prepares to tackle competing claims on departmental resources.

Congratulating the Secretary of State on his appointment, Maura McGowan QC, the Vice-Chairman of the Bar, said: “The Ministry of Justice is facing substantial challenges not least the implementation of the Legal Aid, Sentencing and Punishment of Offenders Act. This measure will reduce

effective access to justice for many vulnerable individuals. Cuts in the MoJ’s budget for the administration of justice come at a time when the prison population remains very high, placing further strains on the Ministry’s depleted resources.

1. For further information, please contact the Bar Council Press Office on 020 7222 2525.

“The new Justice Secretary should signal his intention to give access to justice his priority. Whatever challenges the Ministry faces, it has a fundamental obligation to ensure that everybody is able to access justice, regardless of their means. Mr Grayling must resist adding to the already punitive cuts which the last Government and Coalition Government have presided over.”

• The Bar’s high quality specialist advocacy and advisory services

2. The Bar Council represents barristers in England and Wales. It promotes:

• Fair access to justice for all • The highest standards of ethics, equality and diversity across the profession, and The development of business opportunities for barristers at home and abroad

the barrister

23

Bar Council calls for ‘snoopers’ charter to protect legal communication The Bar Council, which represents barristers in England and Wales, has urged the Committee considering the draft Communications Data Bill to recommend protection for legal communications before any new interception powers are granted.

In written evidence to the Committee, that Bar Council has argued that the current regime for obtaining information about individuals’ private communications and activities is not fit for purpose, and does not

provide the protections which we would expect of any liberal democracy.

Council fully endorses this report and its recommendations.

The evidence has been submitted on the day on which Big Brother Watch publishes a report entitled “A legacy of suspicion”, which calls for judicial authorisation of surveillance to be extended to cover all public authorities and for those authorities to be required to publish standard information about how, when and to what outcome they use these powers. The Bar

Michael Todd QC, Chairman of Bar, said: “For some time now, the Bar Council has called for the Government to recognise the importance of, and have respect for, private communications between lawyers and their clients. So far, the Government has demonstrated that it would rather take advantage of a legislative drafting flaw than protect a fundamental human right.

New Equality and Diversity Rules for Barristers are now in New Equality and Diversity rules for selfemployed barristers are now in force.

The Bar Standards Board (BSB), the regulator of barristers in England and Wales, incorporated new equality rules into the Code of Conduct for the Bar on 1 September 2012. The rules include a number of new requirements for selfemployed barristers including requirements to: • have a flexible working policy • use fair and objective selection criteria • ensure fair distribution of work amongst pupils and members of chambers

• have the right to return to work after 1 year’s parental leave Baroness Ruth Deech, Chair of the BSB, said: "As I stated when the new equality and diversity rules were approved by the Legal Services Board in July of this year; I welcome the introduction of these rules.

We are committed to ensuring that the Bar has appropriate structures in place to record important equality and diversity data and for chambers to be more proactive in the way they approach equality and diversity."

Ends

Notes to Editors: 1. Information about the Bar Standards Board’s approved application relating to new Equality and Diversity Rules, including a full list of the new rules, can be found through the following link: www. barstandardsboard.org.uk/about-barstandards-board/equality-and-diversity/ equality-and-diversity-rules-of-the-code-ofconduct/ 2. Further information from the Bar Standards Board’s Press Office on 020 7611 1452.

3. The Bar Standards Board regulates barristers called to the Bar in England and Wales in the public interest.

BSB welcomes publication of COIC tribunal review report The Bar Standards Board (BSB) has welcomed the publication of the Final Report of the COIC Disciplinary Tribunal and Hearings Review Group, chaired by Desmond Browne QC. BSB Chair Ruth Deech said: 'The publication of the COIC tribunal review report is a vital step in assuring the public and the profession that the disciplinary arrangements for the Bar of England and Wales are open and transparent.

'The BSB will continue to work with COIC

as it implements the recommendations contained in the report. The improvements brought about by full implementation of the recommendations will cement the creation of an independent and modern hearings service, operating fairly, transparently and efficiently in the public interest.'

1. The report is available on the Gray's Inn website http://www.graysinn.info/index. php?option=com_content&task=section&id =54&Itemid=1070.

2. The BSB understands that the report will shortly be available on the websites of all of the Inns of Court.

3. Further information from the Bar Standards Board Press Office on 020 7611 1452.

news

24

the barrister

Raising the Bar Scott Baldwin, Head Clerk of St Mary’s Chambers in Nottingham explains that, just like the rest of the legal profession, barristers will have to embrace marketing and business development if they’re going to continue to prosper.

W

hen you say

across

barristers’

business cards.

chambers

being explored at a far deeper level with

many people

the division of members of chambers

Using e-mail to provide details of

imagine

into key strategic teams.

In simplest

upcoming training or social events is

from

terms a chambers which would have

common, as is the circulation of regular

Rumpole full of dark battered leather

been considered a general common law

newsletters which can provide articles

armchairs, piles of briefs tied up with

set will now have a criminal, a family and

and commentary on key legal decisions

pink ribbon all crammed into a building

a civil team. Some chambers have far

and issues. Social media on the other

peering out over Lincoln’s Inn fields.

greater levels of specialism and so these

hand is a relatively new form of soft

Whilst many do retain a very traditional

basic teams may be broken down into

marketing to barristers but it is rapidly

feel, modern barristers’ chambers are

many different teams depending on the

becoming popular. Twitter seems to be

on the whole bright airy places crammed

set. Each team practices in a different

the current weapon of choice however

with technology and not at all what most

area of law from the others in chambers

LinkedIn is growing in popularity as

people would expect. The same is true

and can be responsible for maintaining

a means of providing information to a

of the modern approach of barristers’

the levels and standards throughout

specific target audience on a regular

chambers to marketing and business

every member of the team.

basis.

scene

a

websites,

letterheads

and

Branding is however

development with new techniques being applied in various different ways.

in the employment of and even reliance upon e-marketing.

The use of social media has

many plus points not least of which is This produces a very polished corporate

how cost effective it can be with a small

feel which provides clients with a

investment of time potentially bringing a

Traditionally barristers’ chambers are

uniformity of quality throughout each

massive return.

named after the building they occupy,

department.

Brick Court or Paper Buildings for

even operate almost independently of

On the face of it barristers’ chambers

example. They can also be named after

the rest of chambers; having their own

seem to be well aware of the challenges

the street name and number of their

dedicated team of clerks and support

of staying ahead in the market place in

address, 18 St John Street or 1 High

staff,

events,

rapidly changing times, but is the sum

Pavement.

In some cases the teams

planning

their

own

Some even take the name

arranging training, creating business

of the whole mirrored throughout its

of a local landmark as we at St. Mary’s

plans and budgets etc. Whilst operating

individual parts? Collectively barristers’

Chambers have done. There are however

independently the teams use effective

chambers are very good at marketing

more and more chambers choosing to

cross-selling

the

but often the vast majority of individual

change their name into a ‘brand’. This

services of other teams within chambers

barristers don’t have the same degree of

is a bold move that goes some way

to their own clients.

sophistication or the range of different

techniques

offering

towards blowing away some of the old

methods. Many consider that it isn’t their

traditionalist view of barristers. Zenith,

When it comes to direct marketing

job and in the not too dim and distant

Argent and Coram have all chosen to

chambers have learnt quickly and employ

past much of what now constitutes

give themselves a name which gives a

a whole range of direct marketing either

marketing would have been forbidden to

sharper more modern feel and which

for one-off events or as part of a long

barristers by the Bar Council. For many

doesn’t conjure up images of stuffy old

term campaign and websites, mail shots

barristers it is as simple as the belief that

men in dusty wigs.

and brochures are de rigueur for all but

their marketing is part of the function of

a tiny minority of chambers. However

chambers and so therefore it is done for

Branding is nothing new to chambers

the rise of other forms of electronic

them. This is in part true the marketing

and most have a logo which is replicated

marketing has seen a dramatic increase

of chambers is co-ordinated for them by

the barrister

25

clerks, support staff and other members

organised social affairs. A coffee at court

various methods described above and so

of chambers but they all have a part, no

or a follow up call following a case can

the important thing is for the individual to

matter how small, to play.

be the difference between being instantly

do something in which they are confident.

recalled or completely forgotten.

The

There will be some barristers who think

For an individual barrister the key is to

personal touch of this type of simple social

that these ideas are ridiculous, will make

raise their own profile. The most obvious

interaction will make all the difference!

no difference or are contrary to the way

approach for a barrister to adopt is to stick

barristers should conduct themselves.

to what they know best. There are many

The really clever part about self promotion

Twenty years ago the Bar would have

opportunities to show off their oratory

is that it can all be tied in with chambers

considered brochures a fad, fifteen years

skills by appearing as a speaker for a

broader marketing efforts. Articles and

ago no-one would have seen the point in

college of law or a legal publisher. The

seminars can be publicised on chambers

websites and ten years ago using e-mail

best way to start is to a run a seminar via

website and add to both an individual’s

as a means of mass advertising would

their own chambers current programme

profile and to the profile of chambers as

have been laughable. Can you ignore the

or at a one off event.

a whole. By an individual’s networking

benefits of self promotion or is it time to

efforts they increase the visibility of their

raise the bar?

audience

who

will

Speaking to an probably

know

them and perhaps be more receptive

colleagues as well as themselves.

is undoubtedly an excellent starting

increase in an individual barrister’s

This article was previously published in

point.

Despite the nature of the work

workload by self-promotion ultimately

(BDM) Business development in Law

undertaken by barristers, standing up

adds to that of chambers as a whole.

in front of a room of strangers is not for

Co-ordinated efforts between individual

everyone. Another route is to try writing

barristers and chambers as a brand can

an article. A good way to dip a toe is to

create much greater results than the

write for chambers website or regular

chambers marketing machine on its own.

Any

newsletter. Focusing on a specific case study or a niche area of law and writing

The amount of

some simple commentary that can turn a

work involved

dense 50 page judgment into something

may

altogether more accessible and useful

onerous

to professional clients is invaluable.

seem but

It

the best way

is possible to progress from localised

forward is to

publications to national by submitting

start small and

articles to one of the big legal publishers.

build up. Each



individual Writing a personal profile and using

should

LinkedIn to create a bespoke network of

the

clients and contacts gives the opportunity

that is most

to show off an individual’s abilities that

attractive

makes them stand out from the crowd.

them and see

LinkedIn can then be used to provide

how it works,

links to articles or upcoming speaking

what sort of

engagements.

results

The very best way of

try method to

they

standing out from the crowd however is

get and work

via human contact. People like to deal

out where to

with people they like; technical ability

take it next.

is only part of what encourages repeat

Not everyone

business. Direct contact is the best way

will

of being memorable but these need not

comfortable

be through formal networking events or

attempting the

be

as

           



  

26

the barrister

efficiently and profitably.

only search and access the documents

for referral work. Today’s ambitious

they need, but also undertake automatic

barrister and modern chambers are

It is not far-fetched to see how 21st

reviews, build cases on the move

becoming more marketing savvy and use

century barristers and chambers, rather

through automatic document generation

numerous avenues and tools to generate

than just have client contact information,

technologies and have intelligent work

work and to market themselves.

will have client profiles at their fingertips

creation and the ability to collaborate on

where information such as latest news,

documents online with clients and other

They are increasingly at ease with

tweets, profiles, background check, case

interested parties.

social media and networking online to

p.21

data,

relationship

models,

financial

generate presence, increase reputation

standings, credit ratings and so on are

They will be able to access and manage

and develop business. They understand

easily accessible to help make informed

numerous forms of digital data whether

the value of ROI in marketing and use

decisions.

these are simple emails or images

technology to track and measure return

to more complex transcripts, videos,

on marketing effort and spend on a

tweets and other digital formats and

regular basis. Chambers must become

integrate these into their case materials.

experts in digital marketing channels

Productivity Barristers need to be more flexible

and become adept in email marketing,

to meet the needs of their clients and

video

colleagues and they simply must be

Case Management

marketing,

marketing,

able to access key tools and information

social

search media

engine

marketing

and other innovative channels as they

whilst on the move. If most people in

As barristers and chambers take on

business can get mobile access to emails,

more direct work and become more

diaries, voicemails and information

accountable,

then barristers should too – or they’ll be

document management technology will

left behind.

need to become a key part of the tools

Technology

that modern chambers use. This will

moved forward significantly in order

The more forward thinking chambers

enable barristers to have a central system

to help barristers, defendants and the

and barristers are more focused on

that houses letters, documents, email

jury gain a clearer understanding of the

leveraging technology for improving

correspondence, notes, and any other

truth. These developments include:

productivity rather than satisfied with

important data that is easily searchable.

•

mere access to the information that

The value of having all items related to a

playing back video and cassette tapes

they should have as a given. Modern

case filed in one place cannot be under-

•

chambers and barristers should be

estimated. It also provides an audit trail

display documents and photographs,

demanding so much more. The very best

and ensures compliance.

three dimensional objects and X-Ray

integrated

case

and

want to be able to access full case data

emerge to secure work.

Court room technology inside

courtrooms

has

Audio / visual units capable of Document cameras which can

photographs

easily, search key information quickly

Additionally, digital data and integration

•

and remotely manage case timings, bills

with emerging digital communications

equipment which can display evidence

and cash.

technology will for example, mean

from a

that client telephone calls, video and

suite within the courthouse or in a

We know that barristers spend a lot of

voice messages are integrated and filed

remote location

time working with documents such as

against their case for record.

•

letters, forms or bundles of notes and

Marketing and Business Development

fixed viewing screens set into the jury

this will continue but move to become more digital and more online.

Vulnerable/

Remote

Witness

witness situated in a witness

"Hi-Tech" courtrooms with

box, by the witness stand and for the

The

Barristers and chambers may not be

accused

modern barrister will be able to not

able to continue to rely upon solicitors

•

Videoconferencing

to

enable

the barrister

27

barristers to conduct videoconferencing

performance indicators. However, the

This is why it will be the ‘forward

interviews

forward thinking chambers will again

thinking chambers’ that have a different,

be more strategic and look beyond the

more strategic approach and a clear

Technology that’s due to be implemented

current trend for financial dashboards

line of sight to investing in technology

includes:

and KPI’s to more operational indicators

for the longer term that will be able to

that really determine and drive the

take advantage of the opportunities,

financial performance of a chambers.

differentiate

•

Receiving a live feed of the

transcript, audio and video directly on a

themselves

from

their

peers and be more successful in the new

computer

The way the ‘bill to cash’ process works

legal world. They are the ones that will

•

in chambers is very alien to the real

be run like a business, win a greater

audio and video feed off-site

commercial world.

As the changes

share of profitable work, attract outside

•

in the legal services market move

investment, and ultimately, generate

searches across all transcripts

more towards a commercial model,

higher income and profits.

•

Sharing work over a network

this process must and will change.

so multiple team members can work

Chambers must look beyond the simple

collaboratively

billing functionality being offered today.

Streaming a live transcript, Running sophisticated full-text

They should be looking strategically at 21st century chambers and barristers

how the full end to end process can be

cannot ignore these advances. They will

better managed and automated so that

need to ensure that their own systems

they have clear visibility of income and

have the ability to integrate and work

cash generation.

effectively with court room technology.

The forward thinking chambers that

Summary

have this integration will have real competitive

advantage

within

the

courtroom.

It is clear that the combination

of

rapid changes in Commercial drivers

the legal services market

and

Successful 21st century chambers will

rapid changes in

also be more commercially savvy and

technology

recognise the value of profit and more

continue to play

importantly, cash. They will combine

an

information with technology to evaluate

part in the way

cases to see which are profitable based

chambers

and

on history and comparison and make

barristers

as

informed decisions on which ones to

well

spend more time on. They will be able

clients

to take on alternative fee arrangements

and

operate.

such as ‘fixed-fee’ work and gain

These

changes

competitive advantage.

also

present

will

important

as

their engage

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tremendous Chambers will also be more familiar

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key

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28

the barrister

Direct Access and Disclosure

By Mike Taylor, Barrister

T

he

Bar

England

Practice Direction (31b). Part 31 and its

to pay particular attention to these are;

and Wales is brought

associated practice directions provide an

The

to

extremely useful structure around which

capabilities.

ways

the management of disclosure exercises

The size and experience of the external

dramas

which include electronic documentation

service provider.

is made relatively straight forward.

The external service providers charging

life

and in

of in

romantic

gripping television

such

as

Rumpole,

external

service

provider’s

Kavanagh, Silks and This Life where

The

incisive legal minds battle with complex

significant drop in processing prices

The external service providers working

crime, a multitude of arch enemies and

over recent years and a far better

assumptions.

the psychotic underbelly of society.

educated Judiciary and Bar means that

Couple this with the imposing nature

the days when parties can simply agree

1.

of many court buildings (Grantham

not to look at electronic documentation

Capabilities.

Magistrates and County Court being

on the grounds of proportionality have

The way in which external service

a notable exception) and images of

all but disappeared. And so it will only

providers

bewigged judges and members of the

become more and more important that

documents they are provided with can

Bar on television news it is little wonder

the Bar is not only aware of the potential

be very different. Barristers should ask

that the widespread public perception

problems surrounding e-disclosure but

external service providers about their

of a Barrister is one of an intellectual

also that individual Barristers are able

capabilities, including;

force with the

to confidently and effectively procure

Where does the processing of data

communicate exceptionally well with

e-disclosure services when necessary

occur? (if it is outside the EEA there

the man on the street whilst at the same

Whilst the Bar Standards Board Code of

could be data protection issues)

time not being "of the people".

Conduct states at Annex F2 6 (c) that;

In 2004 the Public Access to the Bar

"6.

A barrister who accepts public

Does the external service provider use

scheme

undoubted ability to

started

to

operate

presence

of

this

structure,

a

methodology.

External

service

process

the

provider’s

electronic

giving

access instructions must forthwith notify

an off the shelf document processing

ordinary "punters" the ability to engage

his lay client in writing, and in clear

engine or is it an application they

directly with the Bar without the

and readily understandable terms, of:

have developed themselves? (If it is off

assistance of a Solicitor. This started

the shelf are there any known issues

the very slow (some may say tectonic)

(c) the fact that the barrister cannot be

with the product, if it is a proprietary

process of the erosion of the perceptions

expected to perform the functions of a

application how has it been tested and

of the Bar outlined above. The Legal

solicitor or other authorised litigator

benchmarked?)

Services Act, The Jackson Review and

and in particular to fulfil limitation

new ventures like "Stobart Law" are

obligations,

obligations

Does the service provider’s process

all catalysts which will transform the

and other obligations arising out of or

utilise lists of “Noise” or “Stop” words

gradual opening up of the sometimes

related to the conduct of litigation."

and if so are these lists modified

remote community of the Bar into an

Barristers that rely on this rule to remain

depending on the contents of keyword

avalanche (after all why pay two bills

in blissful ignorance on disclosure issues

lists?

when only one is necessary) and the

not only run the risk of remaining in

Bar needs to be ready to address the

the pigeon hole outlined in the early

What is their daily document processing

problems (and opportunities) that that

paragraphs of this article but also of

capacity? (Not really to assess speed

will bring.

falling behind the peloton in terms of

as most service providers will deliver

Disclosure

competitive advantage.

documents to a review tool on a rolling

October 2005 saw Part 31 to the Civil

How to buy e-disclosure services

basis faster than they can be reviewed,

Procedure rules updated with a new

When considering the purchase of

but to assess the level of sophistication

Practice

as

e-disclosure services on behalf of their

of the organisation)

Practice Direction 31a) which has now

clients there are various major points

(in October 2010) been joined by a new

which barristers would be well advised

Direction

(now

known

disclosure

Does the service provider have their own

the barrister

29

data collection and forensic capability

Does the tool incorporate “intelligent” or

What were the sizes (total number of

or do they subcontract those elements

“predictive” review technologies?

Gigabytes processed and total number

to a third party? (If they do use sub-

of pages of documentation provided

contractors who are they and what are

Can the service provider create load files

for inspection) of the last 3 electronic

their qualifications?)

for the other parties’ document review

disclosure projects the external service

tool? (The ESI questionnaire requires

provider completed?

What document types, if any, is the

parties to co-operate on the provision of

external service provider unable to

documents to one another)

How many people do they employ

process? (there may be specific technical

working

file types in the litigation which the

Can

service provider cannot handle)

paginate and print large quantities of

the

external

service

provider

documents if required? (It may well

directly

in

Electronic

Disclosure?

Are they willing to provide references?

Can the service provider search and

be necessary to print large quantities

host audio files? (Increasingly important

of documents for the court or less

Many solicitors firms end up developing

as many companies record all incoming

sophisticated parties)

very effective working relationships

calls).

with smaller service providers who they How does the external service provider

have past experience with and who

Can the service provider deal with

usually archive or delete jobs? (Clients

they trust to do the work on time and

foreign language documentation? (If not

will usually want all of their data

within budget and there is no reason

is that going to be a problem for your

removing

why chambers cannot adopt a similar

case?)

systems at the end of a job)

from

service

providers

approach.

3.

Can

the

external

service

The external service providers

provider

Can the service provider give you

charging methodology.

scan, code and OCR paper documents

immediate answers to the questions 7,8

Most external service providers charge

and then add them to the electronic

& 9 of the ESI Questionnaire?

use one of two broad approaches;

document collection? (If they use sub-

The majority of the overall price is

contractors for this work who are they

The capabilities of the external service

formed by charging a price per Gigabyte

and what are their qualifications?)

provider must, to a large degree, match

of data that is provided by the client for

the requirements of the legal team if

processing and filtering (data “in the

Does the external service provider have

they are going to consider using the

top” pricing).

a hosted review tool option?

external service provider for the work required. However don’t rule out service

The majority of the overall price is

If so;

providers who are a near match but

formed by charging a price per Gigabyte

How good does the internet connection

offer great value for money.

of data that is passed for review to the

need to be?

client after filtering and processing has

Do the chambers firewall settings need

2.

to be altered to gain access and will

external service provider.

this compromise the integrity of the

The general perception within the legal

network?

community is that it is safer to use

Both of the methods above actually give

How is the review tool supported?

larger service providers than it is to

a great deal of control to legal teams

Can documents be printed from the

use smaller less established providers.

about the overall cost of their electronic

review tool?

This may sometimes be true but there

disclosure exercise.

What

security

measures

are

there

The size and experience of the

taken place (data “from the bottom” pricing).

will always be a trade off between size

surrounding the review tool?

and experience and cost. In order to

If “in the top” pricing is used then the

How fast does the review tool run?

accurately gauge whether or not it is

scoping phase of the process becomes

Does

the

review

tool

cope

with

worth taking the “risk” of using smaller

even more important as parties should

spreadsheets?

service providers law firms should find

only be giving the absolute minimum

Can the review tool carry subjective

out;

amount of data to their external service

coding across duplicate documents?

What experience and qualifications do

provider for processing.

What project audit functions does it

the people working on the electronic

have?

documents actually have?

If “from the bottom” pricing is used

30

the barrister

then particular attention must be paid to

of their quotation down is to have low

Most external service providers will

development of the data filters to ensure

estimates for the likely amount of data

charge for the size of the uncompressed

that as few irrelevant documents make it

collected from each individual who is

(exploded) container file. This means that

through to the review stage.

subject to disclosure. This is applicable

if a external service provider is charging

whether or not external service providers

£500 to process 1 Gigabyte of data and

Legal teams often prefer “in the top”

charge using an “in the top” or a “from

their client provides them with 1Gigabyte

pricing (even if it proves slightly more

the bottom” methodology.

of .pst data (Microsoft Outlook’s container

expensive) as it provides certainty of cost

file) the likelihood is that it will not cost

to their clients. “From the bottom” pricing

Legal teams, with very little research,

£500 to process but anywhere between

estimates are only ever best guess quotes

can find out the likely amounts of data

£500 and £5000 depending on the rate

(external service providers are often very

that each individual subject to disclosure

of compression.

good at providing that best guess) until

is likely to have in their possession.

the actual data has been filtered and

IT departments can usually give good

Clearly external service providers who

processed.

estimates of mailbox sizes, file share

are looking to lower their overall quote

sizes and personal server space size, it

will estimate a lower compression rate

On top of these processing charges there

is also quite simple to find out the likely

(of say 2 times) working in the knowledge

are always a great deal of peripheral

amount of personal data (i.e. non system

that the likely compression rate is going

costs that soon add up, these are far

data) held on portable storage devices

to be higher (more usually 3-3.5 times

too numerous to list, and by the time

and laptops.

the size of the container file) but in order

the list was created it would necessarily

to get a look in at the tendering stage they

be out of date but very broadly there

Given the relatively small size of the task

need a low quote and they’ll deal with the

will potentially be charges for project

of finding this information out it is always

price increase at a later stage.

management and;

best to give assumptions on the amount of data to be provided to external service

It would be unfair to say that this practice

Data Collection

providers to them rather than let them

is usual, or even widespread, amongst

Data Preparation

come up with their own assumptions.

external service providers but in order

Data Processing

to ensure that quotations are being

Data Manipulation

This is not the end of the story though

compared on a like for like basis it is

Data Production

and legal teams must continue to bear

advisable for legal teams to specify what

Data Archiving

the following two points in mind

compression rates that their potential external service providers should use

4.

The external service providers

Explosion rates.

when giving a quotation.

This is often overlooked by legal teams

E-mail “container files” are the usual

There are some external service providers

that are looking to purchase the services

manner in which e-mails are stored and

who do not charge on the exploded size

of an external service provider. The

their qualities mean that it is sometimes

of the file but on the compressed file size.

temptation is to say, “All of these external

possible for legal teams to collect their

service

working assumptions.

essentially

own e-mail data and have a preliminary

the same service so we’ll just compare

providers

provide

look at it secure in the knowledge that

bottom line pricing and go with the least

they are not altering the metadata

Whilst explosion rates are important

expensive one”.

associated with the e-mail.

whether or not the external service

This is a mistake because in order to

Filtration rates.

provider charges using an “in the

provide a quote service providers have to

Another property of container files is that

top” or a “from the bottom” charging

make certain assumptions about the data

they compress the data held within them,

methodology,

and about the filters that will be applied

and so when the e-mails are removed

assumed for filtration really only effect

to it;

from the container files the sum of all

the external service providers costs if

of the e-mails sizes far exceeds the size

they charge using a “from the bottom”

of the original container file. The actual

charging methodology (although these

rate of compression is not uniform and

assumptions

The simplest way for external service

can vary from no compression at all to up

assumptions about review team time and

providers to bring the bottom line cost

to 10 times compression (or more).

cost whichever methodology the external

Amount of data collected.

the

will

rates

affect

that

legal

are

team

31

the barrister

service provider uses).

for example, a service provider has

as well as growing familiarity with

the ability to speed up the document

working

If a “from the bottom” charging structure

review process using “intelligent” or

tools. However this should never stop

is used then the rates of filtration are

“predictive” technologies then do the

legal teams from always making the

extremely important to the overall cost.

savings at that stage make it worth

procurement

Without testing the filters it is almost

using that provider even if that service

and using the purchased solution

impossible to tell what the proportion

provider is initially more expensive?

which most appropriately solves their

of documents passed for review will

Being proactive and engaged in the

problem. By keeping external service

be and so external service providers

process will allow litigators to set the

providers on their toes legal teams

use their experience to provide a best

tone of disclosure with the opposing

will usually obtain better pricing and

guess, usually the guess is pretty good,

party and to demonstrate the open

service than if they use an external

but legal teams do need to ensure that

and co-operative approach they have

service provider out of habit.

all external service providers are using

adopted (should the court ever be

the same assumptions, because, as

interested in the conduct of parties!).

Called to the Bar in 1998 Mike Taylor

with explosion rates, some external

The simple comparison of bottom

has, through his firm i-Lit Limited,

service providers will assume a higher

line costs does not give a like for like

been advising lawyers and their clients

rate of filtration to bring the estimated

comparison and legal teams need to be

on e-disclosure since 2006.

cost down.

constantly aware of the various ways in

practices

and

process

proprietary

competitive

which likely costs can be manipulated External

service

providers

who

by altering basic assumptions.

charge using a “from the bottom” methodology are particularly prone to

It must however also be remembered

very large swings in price when both

that the vast majority of external

the assumptions on explosion rates

service providers wish to offer a great

and the assumptions on filtration

service and real

rates interplay with each other and so

value for money,

sometimes provide a high end quote

and have different

and a low end quote. This is useful

assumptions

from a transparency perspective (i.e.

behind

their

the external service providers are

pricing

because

acknowledging that the assumptions

they have different

may be wrong and so prices may vary)

experiences in the

but not very useful when legal teams

marketplace.

go with the overall prices to their

Many

client who generally want to know an

firms use the same

exact price in order for them to budget

external

appropriately.

provider time and

solicitors service

again, and there Conclusions

are valid reasons for this, not least

Being to

prepared

external

before

service

you

go

the

providers

for

relationship

personal that

quotations allows lawyers to take

builds

control of the procurement process.

lawyer

Using the ESI questionnaire will help

external

service

in this preparation.

provider

which

It is also vital that those purchasing

can often benefit

solutions have a good knowledge of

legal

the broad picture of the litigation as a

through preferred

whole in order that they keep an eye

pricing and service

on the next steps in the litigation. If,

arrangements,

between and

teams

For counsel who mediate www.ExpediteResolution.com 0844 879 3166 www.TrustMediation.org.uk 0207 353 3237

32

the barrister

The law online: has uploading led to overloading?

By Mark Debenham, Justis Publishing “No attorney is bound to know all

Abbott’s words were sage then and are

have to have a way of sifting through it,”

the law; God forbid that it should be

perhaps more so now, especially when

Mulcahy told me.

imagined that an attorney, or a counsel,

you consider that the passage of time

or even a Judge is bound to know all the

and the advent of the internet have

If the advent of online legal technology

law: or that an attorney is to lose his

meant that the body of law has grown

tools has led to this need, then the

fair recompense on account of an error,

considerably over the last few centuries.

question becomes this: are tools such as

being such an error as a cautious man might fall into …” 1

JustCite up to the task of sifting through The development of online technology

it? Or is my brain still in danger of

has meant that greater access has

turning to jelly when thinking about the

hief Justice Abbott’s

resulted

amount of law that’s now available?

words give me a

navigation.

C

in

the

need

for

greater

great deal of comfort.

187

years

To continue the dessert-based lexicon,

later

Luke Harris, barrister at 3 Stone

the proof is in the pudding.

and they are just

Buildings, pointed out to me: “There’s a

The fact that JustCite is provider-neutral

as

today.

huge amount of material being put onto

makes it a suitable tool to test. It indexes

During my first week working at Justis

the internet now and you need to keep

over

Publishing I attended a training session

up to date with the law as it currently

including cases, legislation and journal

on JustCite, the company’s provider-

stands. Although the electronic world

articles,

neutral citator, and I was overwhelmed

now provides services, such as JustCite,

around the world. It’s a reflection of

by just how vast in content the world

to check the information quickly, the

what legal research has become.

of law reporting is. I stepped out of

electronic world probably owes it to

the training room and my head was

everybody

spinning. My brain had turned to jelly.

because

How could anybody even begin to

abundance of information that’s now

(Inspector of Taxes) v Hart is the first

prepare for a case when there’s so much

available.”

case to pop up on the results screen.

relevant

to it’s

make

it

manageable

responsible

for

the

potentially pertinent information to sift through?

I recently had the chance to speak to

two

million

from

legal

over

documents,

100

databases

When I search for “Proceedings in Parliament”

on

JustCite,

Pepper

This is due to the fact that all the I found a similar sentiment expressed

material that’s indexed on JustCite has

when I visited 4 New Square and spoke

been painstakingly read and referenced

to Leigh-Ann Mulcahy QC.

accordingly by Justis Publishing’s legally-

several barristers at their chambers

trained editorial team. This, in turn,

about the proliferation of case law

“When I started at the Bar, you would

fuels the JustCite Ranking system—a

online. I not only found solace in what

be trying to find other cases that were

sorting feature that ranks search results

they said but it also got me thinking

related and the big fear was that you

by their true relevance, rather than by

about the internet’s contribution to

would be in court and have missed

keyword frequency, so the leading cases

legal research. If the electronic world is

something. You didn’t have the electronic

are displayed first.

responsible for making the body of law

access to be able to search everything.

even more voluminous, then does it do

You now do, but it’s caused the opposite

In light of this, Pepper v Hart’s position

enough to make it manageable?

problem: you’ve got everything so you

is to be expected, given the sheer

33

the barrister

number of times it’s been cited and

The first few stages of filtration have

Too much information has always been

the huge impact it’s had on statutory

already been done. Furthermore, the

a problem: “Before online databases

interpretation.

findings can be presented in a way that

were available, the main problem was

makes the information easy to digest.

searching what was reported, which

At the time of writing, the case has

JustCite’s Precedent Map feature is a

depended

been cited 429 times. The prospect of

visual tool that shows the network of

secondary source, such as paper-based

looking at that many cases to find out

authorities for each case. It will place

citators. Searching through those to find

if a case is still “good law” is far from

a case in the centre of the screen as its

useful citations was a major task. Now

appealing. Luckily, another benefit of

“focus”, and then around its perimeter

with electronic databases and services,

the editorial team’s hard work is that it

display the key previous cases that the

like JustCite, you can do it very quickly.

makes it easier to see the relationship

focus case has cited and subsequent

It’s easier now to find useful authority

that cases share with one another.

cases that cite the focus case. Colour-

even though the quantity of material is

Cases are categorised according to

coded arrows are used to connect cases

so much greater.”

whether they have a positive, neutral

in the network and show the citation

or negative treatment of the case. In

type.

the case of Pepper v Hart, I can see

on

using

some

sort

of

It’s also important to note that the electronic world continues to innovate.

that of the 429 cases that cite it, 24 are

If the electronic world is responsible

positive treatments, 403 are neutral and

for exacerbating the need to sift, then

Citations in Context is one of JustCite’s

8 are negative. I can then narrow my

have such technological advances made

newest

features

and

it’s

already

starting to save practitioners time by isolating and highlighting paragraphs from judgments that discuss other cases, removing the need to read the full document for the most crucial information. I can find out why Pepper v Hart was not applied in Thoburn v Sunderland City Council in a matter of seconds, without even having to leave the tab on my internet browser.

Mulcahy noted the value of Citations in Context in the sifting process when I spoke to her: “You need to find the relevant bits of the case to see if it contains anything relating to the point that you need. I was looking at a case called Welsh v Stokes the other search accordingly. Furthermore, each

things better or worse?

are cited in the context of meaningful

day which relates to the admission of hearsay evidence. When I started

legal terms such as “distinguished by”,

I visited 4 Pump Court and spoke to

examining the cases that cited it and

“applied”, “overruled”, “not followed”

Jeremy Nicholson QC, who introduced

reading the case analysis for each, I

and the like.

me to the quote at the start of this article.

found that many of them related to

34

the barrister

the strict liability under a particular

the Court of Appeal and above, and the

binding. Once you have the transcript

statue, rather than the hearsay point. In

former dates back to 1951 while the

of an unreported decision, you can cite

that instance, Citations in Context would

latter’s coverage goes back to 1963.

it as of equal authority to a reported

have been useful.”

The vast majority of cases contained in

decision, so it behoves every counsel

the two haven’t been reported but the

or solicitor to find, if he can, a case –

fact that Citations in Context currently

reported or unreported – which will

result was. They give you the facts,”

indexes both means that the user can

help him advise or win his case.” 2

Harris explained to me.

digest their content after harnessing the

I also asked Edward Cumming, barrister at XXIV Old Buildings, about the feature and he drew my attention to the fact that it aids the focus of legal research: “Citations in Context is effective in distilling the most important parts of a case that might be helpful and it speeds up the process of determining whether it’s something that you’re actually going to deploy or whether it’s not so pertinent. It both complements the case’s headnote [available elsewhere but only in reported cases] and is a useful parallel to it.”

“Headnotes reign supreme when it comes to digesting cases because they tell you what happened and what the

power of features such as the Precedent

For

The practical value of headnotes in

Map and JustCite Ranking to sift through

question: how do you sift through the

the sifting process is clear. Of course

them for unreported precedents.

unreported cases without missing any?

and in some circumstances they’re

The value of such features is highlighted

Mulcahy identified the need to have a

too general to help practitioners drill

when one reflects on the importance

frame of interpretation for such cases

through to the specific points of law

of being prepared for scenarios where

when we spoke: “The vast number of

they’re investigating. So how does one

headnotes aren’t available, especially

unreported cases now, and the fact that

sift through and digest the voluminous

when one considers Lord Denning’s

they’re available online, which wasn’t

amount of important unreported cases?

words below.

the case when I came to practise at the

me,

this

raises

the

following

not every case is reported though,

Bar, means you need some sort of sifting The England and Wales Civil Appeal

“…every decision of the Court of Appeal

mechanism. You can’t always read every

Judgments and the England and Wales

on a point of law is binding on all courts

single case that’s related to a particular

Criminal Appeal Judgments are two

of first instance and on the Court of

area. It’s important to have some sort of

voluminous full-text series from Justis

Appeal itself. No matter whether the

case analysis linked to the transcript of

that demonstrate how this issue can be

decision is reported in the regular series

an unreported case as that saves a lot

overcome. Both series cover cases from

of Law Reports, or is unreported, it is

of time in terms of sifting through what

the barrister

matters and what doesn’t.”

authorities have actually been referred

35

need and use only what’s needed.

to in court. There is a difference Cumming added: “There’s much more

between having them there because

ready-access to a broader range of cases

you’ve referred to them in writing and

1 Abbott C.J. in Montriou v. Jefferys

now, both reported and unreported ones,

actually having the time to take the

(1825) 2 C. & P. 113, at 116.

so you’re seeing more and more recent

court through every single one. With the

2 Lord Denning, writing in the foreword

cases being cited in court, particularly

advent of electronic databases, we’ve

to the microfiche edition of The Court of

for procedural matters.”

got access to everything but it’s still

Appeal Transcripts 1951-1980

really important to exercise judgment He continued: “Many of the unreported

on what is the best authority to illustrate

ones may not merit inclusion in the

something.”

formal reports. Now you have better tools at your disposal to find cases

Nicholson had similar views when I

that might be more on-point, albeit

asked him about the future of legal

less remarkable. You still need to think

research: “Selection and identification

laterally when using search terms to

of authority are going to be even more

find them. JustCite is a good tool for

important in the future than they are

identifying and sifting through recent

at the moment because of the volume

cases so that you don’t miss anything

of authority. Presenting a whole stack

that’s just happened that you need to

of unnecessary authorities to a tribunal

fully consider when preparing a case for

does not go down

court,” Cumming added.

well.

What

an

advocate really has The need to have an online sifting tool

to do it is identify

for such cases becomes even greater

the authority of the

when you consider the fact that cases

authority. Targeting

may take six months to a year to be

and

reported.

authority to what is

limiting

really

needed

While the electronic world provides a

are more important

solution, practitioners, perhaps more so

than ever.”

than ever, need to be discerning in their preparation.

187 years on from

HE GAVE HIS LIFE TO MUSIC. NOW YOU CAN GIVE SOMETHING BACK. musicians look after the music - we look after musicians

Abbott’s words and “You can be exhaustive with your

they still hold true,

research but that doesn’t mean that

but the landscape

you should be exhaustive by putting

has changed. While

the whole lot before a court,” Mulcahy

a lawyer still isn’t

explained. “The Court of Appeal has

expected to know

been known to complain that it has

all the law, they are

been provided with 10 or 20 bundles

expected to be able

of authorities while only a handful of

to find all that they

For more information visit helpmusicians.org.uk or email legacy@helpmusicians.org.uk

Make a difference to musicians’ lives by leaving a gift in your will Musicians Benevolent Fund 7-11 Britannia Street London WC1X 9JS Patron: Her Majesty The Queen Chairman: The Hon Richard Lyttelton Chief Executive: David Sulkin Registered Charity No. 228089

36

the barrister

It’s Time to take Tendering Seriously

By John Binks Bar Consultancy Network

T

he tendering by local authorities for the services of counsel is now common place.

Competitions are however becoming more serious as authorities seek best value by allocating high volumes of work to relatively fewer chambers. Chambers not geared up to compete are finding themselves locked out of comparatively lucrative sources of work on a long term basis.

What Has Changed?

On both a local and national level purchasers of publicly funded services have for years been attracted to the idea of competition by tender , but have struggled to get the process right . Chambers have historically spent time and effort engaging in such processes, ‘winning’ and discovering that in reality the victory is rather hollow. Everyone else seemed to ‘win’ as well, and there was consequently no tangible difference in the volume of work coming in.

These outcomes stemmed from badly designed processes which failed to identify in reality who the best bidders were – so everyone got a contract.

Chambers that have previously engaged in LSC tenders for high cost case work will doubtless recognise this scenario well. Recently however local authority competitions have been run on a far smarter basis, purchasers have identified that transparent effective scoring systems are crucial. Those running competitions are accordingly now in a position to allocate high volume work to far smaller numbers of chambers, confident that their decisions are robust and can stand up to challenge if needs be .

The Process This is not a treatise on procurement law, but in summary relevant EU law differentiates between Part A and Part B services. Part B services are those which would in general only be supplied by those operating within the borders of the purchasing state. Domestic legal services are generally regarded Part B. Whilst the tendering process for Part A

services is very clearly defined, it is less so in the case of Part B. Consequently public bodies purchasing legal services may not always follow exactly the same process, but they should apply the same general principles. We should accordingly expect that the process will be commenced by a published ‘notice’. The notice will normally invite those interested to register to complete a pre-qualification questionnaire ( PQQ), followed by the submission of a tender, which may in some cases may in turn be followed by a final interview/ presentation stage.

The Notice It is self-evidently vital that you do not miss a notice of a tender you want to be involved in. Tenders for part A services have to be commenced by notice in a specific format published in the EU’s Official Journal. The requirements in part B cases are less specific. Local authorities will doubtless place them on their own websites, there are commercial sites that pool all local authority tender notices, england.unitedkingdomtenders.co.uk is useful, and there are doubtless many others. The notice will outline the services being purchased, and probably the estimated sum total of the value of the lots. It may give details of the projected final number of chambers that will be granted contracts.

Crucially it will give the date by which an expression of interest to take part should be lodged.

The PQQ Purchasers do not have to go through the PQQ stage, they may go straight to tender, but henceforth most if not all local authorities will. The notice will explain how to register for a PQQ. The notice may also give an indication of how seriously completion of the PQQ should be taken. Whilst PQQs have previously been used (if at all) by local authorities to establish a minimum requirement for those passing to the tender stage, PQQ are now being used to set a far higher bar. The notice for a tender in train in the Midlands ( for work circa £18m over

a period of 4 years ) indicated that no more than 5 bidders would get final contracts and that only 5-20 potential bidders would be allowed past the PQQ stage. In such circumstances a serious bidder would do well to invest time and effort into ensuring that the PQQ is completed as fully as possible. The PQQ should certainly not be treated as a formality.

The Invitation to Tender (ITT) The degree of information required in the tender document will vary dependent upon how the PQQ was structured. In the Midlands example given above elements of the quality aspect of the bid and the capacity of chambers to deliver the services was scored at the PQQ stage. In such circumstances the tender itself may well just come down to price, dealt with in more detail below.

Guidance Throughout the process the purchaser will be publishing guidance in various forms The purchaser will publish Information for Applicants (IFA) The IFA may have been published at the beginning of the process or may only come with the ITT. If the IFA doesn’t come before the ITT there will be separate guidance with the PQQ. Almost inevitably there will be information missed from published guidance .Throughout the process potential bidders will therefore be contacting the purchaser direct with additional questions about the process.

The purchaser should not answer such questions direct to a single bidder alone but should publish all questions and responses as FAQs to all parties in the process at any one stage.

Bidders must ensure that they are completely familiar with all guidance throughout the process and should ensure they keep up to date with published responses to FAQs. FAQs can significantly alter the rules of the process, including closing date. All guidance should be followed to the letter.

In cases of uncertainty to not hesitate to

the barrister

request guidance from the purchaser.

Some Tips for Success in Completing PQQ and Tenders Never Assume Knowledge: In any process there will be chambers that have a track record of excellent service and personal relationships with the purchaser going back over a number of years. There may be a temptation, when called upon to describe and evidence quality of service, to assume that the purchaser knows all about you. Never fall into that trap.

Increasingly the conduct of tendering processes will be outsourced. The people scoring the PQQ/tenders may know nothing of your chambers, and possibly even little about the provision of legal services. Even if those marking bids do know you allowance of credit for issues not evidenced in the application would potentially make the outcome challengeable by unsuccessful bidders.

Most purchasers are live to this risk.

In an open competition purchasers cannot assist individual bidders to the inevitable detriment of others involved in the process.

Manage the process: Have someone in chambers whose key focus during the process is to make sure the bid is submitted on time and to the best standard you can get. That person needs to have the authority to be able to collate and marshal all the detail required.

They need to understand the process and the rules. It is unlikely that a single member of chambers will have the time or opportunity to give the process the focus it will need, and a committee of members is likely to be a recipe for disaster. You need an appropriately experienced senior member of your chambers management team, or you need to bring someone in for the duration of the process. Members who want to be included in the bid must cooperate by providing all information as and when required. If a group of counsel are bidding for a lot the purchaser is likely to score their evidence and experience of ability as a single factor. A member or members of chambers who want to be involved in the bid, but do not have the time or inclination to properly detail their background experience will drag the bid down as a whole. Whoever manages the process should have the

skills and authority to properly address such issues.

Prepare: For chambers who wish to be involved in local authority work in particular tenders are here to stay. Larger chambers should plan to be involved in multiple tenders. Individual counsel should maintain c.vs based on a common chambers format so that demonstration of the capacity of chambers as a whole to work in particular areas by production of a properly evidenced track record is a relatively straightforward matter.

Policies on disaster recovery, health and safety and diversity should be kept up to date, with proof that they are in actual operation. You will need them.

Understand your Unit Costs: The most common description of the award criteria in any tender will be described along the lines of ‘the most economically advantageous tender in terms of the criteria stated in the specifications’.

All things being equal it comes down to price. You need an understanding of the prices at which you can bid and what that means by way of associated profit. To be blunt, if barristers have nothing else to do anything may be better than nothing, but in most cases there are choices of work, without an understanding of unit cost it is difficult ( if not impossible) to understand the financial implications of such choices.

It is certainly impossible to get a proper understanding of unit costs without an effective system of time recording.

It is possible to make estimates, but as margins narrow estimates will not suffice. In order to understand unit cost you need to time record and accumulate data, and the best time to start is now.

This data will enable you to pitch bids on a proper commercial basis, and to understand the outcomes at the point at which you devise the bid – not 6 months down the line when you discover you are committed to providing services at a loss.

Put Yourself in the Position of the Purchaser. It is common for purchasers to ask what value added services you can offer over and above the provision of actual advocacy. Basically they want something for nothing, and as local authority cuts bite they will have lots of

37

nothing to go round .Offers of free training is a start, but litigation of any nature is a problem, and the purchaser wants to buy a solution. In general the more you are able to assume responsibility for providing the solution on the purchasers' behalf the more attractive your bid will be. Bear in mind however that no purchaser will be comfortable in handing over responsibility for case management unless you are offering proper quality controls. You need to put together a bid that gives the purchaser 100% confidence that you will deliver the services you say you will deliver as and when required and with complete consistency. The quality control and case management services the administrative element of your chambers can offer may for some authorities be as important as the delivery of the end legal services themselves.

Double Check Everything: Probably the most common single error in tenders for LSC Contracts was an omission to sign the application. In any tender the purchaser will retain to themselves the discretion to allow bidders to correct errors. These discretions are however normally used extremely sparingly, if at all. Allowing one party to correct or add to a bid almost inevitably prejudices other parties whose bids were stronger on first submission. Exercise of such discretion lays the purchaser open to challenge and consequent delay in implementation. The purchaser is buying a solution, not satellite litigation.

Never approach a bid on an assumption that more information can be added at a later date. Assume errors or omissions will be fatal, and check everything accordingly before submission.

In a recent exercise a large local authority in the north of England awarded virtually all its work to just two chambers. For those willing to invest time and effort in winning such contracts the rewards are clear.

By John Binks www.barconsultancynetwork.co.uk/

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The Innovation of Communication

By Catherine Bailey, Managing Director of the legal marketing specialist company Bar Marketing

I

s it REALLY that important

the bond between you and them. It can

may add comment and personalise. It

to communicate with your

make clients feel like you are there for

also facilitates the creation of specific

customers

regular

them, that you are their main source

RSS feeds for individuals. For example,

basis? The predictions of

of legal information and that you are

chambers can tailor their messages

industry

interested in them even when they

to Partners within specific law firms

aren’t spending money!

easily and cost effectively. This ability

on

a

watchers

give

pause for thought:

to create personalised content and A key factor is how the communication

communicate it direct to the client is as

businesses could see as many as half

is delivered.

Clearly face-to-face will

close as it’s possible to get to face-to-face

of their clients move to competing

always be the best method, however, it is

communication without being there and

chambers.

certainly not the most cost effective way.

that can only be a good thing!

•

Over a 5-year period legal

Direct mail has it place be it via hard copy •

Legal businesses can expect to

print or electronic transmission.

The

spend up to 7 times more in terms of

key is ensuring that the communications

Author: Catherine Bailey is Managing

cost-of-acquisition of a new client than

are sent to the right person and that the

Director of the legal marketing specialist

they would have to spend retaining an

content is relevant to them.

company Bar Marketing. She has also been writing about the UK legal market

existing one.

With that in mind chambers’ should also

and its evolution for over a decade. For

Legal businesses that boost

consider the prospect of more innovative

further

client retention rates by as little as

approaches. In an age where there is

please contact Catherine on 0771 434

5% could see an increase in profits of

an “app” for almost everything it makes

5072 or via email at catherine.bailey@

between 15% and 30%.

sense for sets to create apps containing

barmarketing.co.uk

•

their legal and marketing content. The Regular, relevant communication can

new product BarristeRSS facilitates this

help ensure that your chambers remain

with ease.

at the forefront of your clients’ minds. It

and apps to be created and updated

can help position you as the experts in

in a central place and distributed to

the industry sectors or areas of law in

many clients and websites.

which your clients are interested.

placing chambers’ information in the

It allows both RSS feeds

Literally

palm of their hands! It comes with preThe content, correctly constructed, can

written case information (written by

trigger clients to contact you, cementing

legal professionals) to which chambers

information

on

BarristeRSS