bar mag 54

3

the barristerISSN 1468-926X

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Evolution not Revolution

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Young Adults In The Criminal Justice System.

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23

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

Intelligent marketing will help barristers raised the bar

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.

By Douglas McPherson

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…

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

‘the barrister’ was interesting in many ways.

First, he summarised wonderful progress

by solicitors in expanding and improving

their businesses, including mergers and

venture capital. He then turned to the Bar,

and said that progress is slow, and that it

might be time for the Bar to “shake off its

torpor and join the race before it’s left too

far behind”. He commented on the failure

of chambers to merge, to create sets that

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

out for comment the quasi chambers set up

by DLA Piper, and the small criminal set of

six barristers and a solicitor. He ended the

article by saying that “the Legal Services

Act has paved the

way for an ABS

world”, and that

the Bar should

speed up.

I have been keen

on progressive

management of

chambers for 30

years or more,

and I hope that I

Practitioners in criminal law will be aware

that judges and magistrates are directed

to consider not only the age of an offender

but their level of maturity when it comes

to sentencing.The Sentencing Council

Definitive Guidelines in relation to Drug

Offences, Burglary and Assault direct a judge

when considering the potential application

of mitigating factors to consider and take

into account ‘ Age and/or lack of maturity,

where it affects the responsibility of the

offender.’ The SGC definitive guidelines

under the Sexual Offences Act 2003 states

at parag.1.17..’The youth and immaturity

of an offender must always be potential

mitigating factors for the Courts to take into

account when passing sentence. However

where the facts of the case are particularly

serious, the youth of the offender will

not necessarily mitigate the appropriate

sentence.’ The earlier produced Theft

and Non Dwelling Burglary Offences SGC

guideline refers under ‘Factors indicating

significantly lower culpability’: ‘Youth or

age where it affects the responsibility of the

individual defendant.’

But in one sense, and to a degree, lack

of maturity has been a factor

recognised and taken into account p.10

Bill Braithwaite QCExchange Chambers

00 the barrister

the barrister 03Silk, 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

Many think they

know what

it takes to be

a successful

lawyer. In

truth, and

the truth often hurts, many probably

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

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

public’ that are serviced by lawyers,

daily. So why is it then little is known

about chambers, and little more about

how they receive their work?

During casting for any legal drama, and

Silk is no exception, the ‘glamorous’

roles of Barristers are often portrayed by

handsome actors such as Rupert Penry-

Jones (Clive Reader) and attractive

women such as Maxine Peake (Martha

Costello). Neil Stuke is the Senior Clerk

of the chambers whose character, Billy

Lamb, is bit of a rough diamond. As his

working class name suggests, so is he.

His accent and looks wouldn’t be out of

place in a Guy Ritchie film.

Unfair? Maybe. But according to Silk,

the popular television drama, not so.

The role of Clerk to barristers seems

to be one for a ‘geezer’ or ‘(wo)man

about the town’1. A certain charm is

required; after all, how else does one

get all those brown envelopes only to

stash them away out of guilt? Arguably,

these brown envelopes are now simply

labelled as ‘Referral Fees’, behaviour

which many solicitors are keen not to be

associated with. It may be true to say

it still happens, but it is a practice that

is no longer becoming acceptable. It

removes operational independence and

there is a real risk of conflict of interest.

I spoke with Diane King, a Clerk with

some 14 years’ experience, who works

at 2 Pump Court, London. I asked

Diane for her opinion on why television

portrays Clerks as working class, a ‘bit

dodgy’ and risk takers:

“Traditionally clerks were the coal boys.

They would collect the coal, work up to

stoking the fire, shine the (barristers)

shoes and if they become trusted, do

the ‘Temple Run’. This would involve

running with the red-wax sealed

papers to chambers. As a result, the

clerk was born. Although the modern

day version is a lot different, the patter

and persuasiveness is still present but

without the barrow boy inferences.

There is a recognised BTEC qualification

which clerks are encouraged to study for

and this goes a long way in dispelling the

myth that clerks get by on just charm”.2

It seems then that ‘Billy’ is a good

representation of what traditional

clerking was all about: Male, cocksure,

not necessarily academically bright, a

little complacent with others’ feelings,

but who has an ear to the ground and

who can relate to many at most levels

(a social awareness that arguably not

all academically gifted persons possess),

and produce the goods (referrals);

someone who ‘gets the job done’.

If that is the traditional aspect of the job;

what is the modern equivalent. The IBC

(Institute of Barristers’ Clerks) state in

2000 that 76% of clerks are men, with

only 24% women in the field3. Thirty

years ago only a few women fulfilled

this role, so it is moving in the right

direction, albeit slowly.

A diverse range of clerks with an equally

diverse practical practice experience is

important. Cases that come in need to be

handled diplomatically, egos need to be

massaged, and if a Clerk does not have

a particular barrister free to accept the

instruction, it is never (or should never)

be returned to the instructing solicitor,

although it is known as a ‘Return’,

literally speaking it is not, more ‘trading

cases’.

Sending an instruction back to a solicitor

is bad practice, yet ‘trading cases’ is a

necessary evil which helps to keep work

at the bar rather than being swallowed

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

always try and send to another barrister,

04 the barrister

or failing that, another set of chambers.

This not only builds confidence with

the solicitors, but rapport with other

chambers. Negotiation skills are a key

element to any clerk, as important as a

barrister one might assert.

The East End barrow boy who was

Senior Clerk may be dying out in favour

of a modern, operations-savvy Clerk,

but the crux of the role is still deeply

ingrained.

This may seem way off the scope of ‘Billy’

and his humble East End beginnings,

but before he is dismissed too soon, it

is important to remember that without

him collecting the coal, shining shoes

and being treated as a sub-servant to his

esteemed colleagues, modern clerking

wouldn’t exist. Thanks Billy.

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

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

Lecturer/Tutor: LL.B., LL.M., M.Sc.,

B.Sc., and eLearning Facilitator

Editor-in-Chief, StretLaw

© Gary Lee Walters, StretLaw™ 2012

1 infra 3, Traditionally men fulfil these

roles, although IBC data suggests this

trend is changing

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

BTEC 2010-2011 Accessed 10.08.12

10:08

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

update in relation to figures was

inaccessible at time of going to press.

Accessed 11.08.12 22:39

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06 the barrister

am as progressive now as I was

then!

I'm not convinced that we should

abandon all we have achieved, and

use alternative business structures to

join with solicitors, or others, and use

venture capital to expand. I think the

starting point is to run our existing

businesses as efficiently and effectively

as we can, and to use outside capital,

or alternative business structures, to

build on the existing business. There

is a significant demand for a referral

profession, which I think will continue,

and we are uniquely placed to provide

that service. There is huge value in what

we have built up over the generations,

and I think that we should preserve that

asset, and build on it.

I do not believe that size alone protects

chambers from the pressures facing us,

and so I do not think that mergers

are necessarily the solution. I think

that good business management is the

best starting point, by which I mean

the whole range of elements which are

necessary such as recruitment, career

development, staffing, financial control,

development opportunities, and so on.

Turning to the suggestion that the

alternative business structure may be

the way in which the Bar can save itself

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

remembering ProcureCo, which may

not have been a good idea, but which

was thought to be a wonderful way

forward. I fear the same for the notion

that alternative business structures will

be the saviour of the Bar.

I don’t mean that an ABS might not

have an important part to play, but I do

think that we should start by identifying

the product which we are selling. I feel

very strongly that good barristers have

experience and expertise which others

do not, and cannot, possess, and that

therefore we have a product of real

value. Advocacy in its widest sense is

an art, as well as a science; it covers

the whole range of advisory functions

from hospital bed to final settlement

negotiations, from early commercial

advice on entering a contract to

resolving a commercial dispute, from

police station interview to resounding

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

we probably don’t have a saleable product.

The next step is to identify the consumer.

This may well be an area where we have

to revise our thinking. One of the threats

is that the middleman will cut us out,

for a variety of reasons, profit being a

dominant one. If that is so, it means that

we need to focus on the end user, either

instead or as well, which would mean a

radical shift in our marketing efforts.

Marketing is essential of course, but

we do need to identify our potential

customers, and that isn’t always easy. A

tradition used to be that silks marketed

juniors, juniors marketed solicitors, and

the solicitors attracted the clients. That

model won't always work nowadays,

because the development of larger

firms has changed the dynamic, and

the pressure for profit is invasive. My

perception is that the same applies in

all areas of practice, which is probably

what has given rise to the different types

of chambers highlighted in Ian Dodd’s

article.

That takes me on to alternative business

structures. One of the reasons being

touted round for this alternative

approach is “profit sharing”; chambers

can join forces with solicitors, create a

business, and share the profits. I could

see that some might be attracted to that,

but even this simple (and naïve) version

could be problematic; a significant

worry, at present, is that “profit sharing”

could be a synonym for referral fees,

which are prohibited for us.

So what should we do? It’s tempting to

leave it there, like Ian Dodd, because

there is no universal answer. It’s obvious

that some chambers are destined to

survive, and equally that others will

not, but I think that we may have to

recognise that, if we have value only in

those cases which actually need top class

advocacy and advisory consultancy, we

will need to limit our numbers. The

small personal injury claim, the easy

guilty plea, the trivial dispute – none

justifies the expensive use of highly

skilled advocates. Not surprisingly,

some of that work has been vanishing

over the years, and that encroachment

into our traditional spheres of activity

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

not a very happy message, but I think

it’s inevitable that the Bar will have to

reduce its numbers substantially. Sadly,

the dissolution of existing chambers is

bound to continue, but that could be

seen as an opportunity for the remainder

to strengthen, and possibly to expand

areas of practice.

We now find that we are competing with

other professionals who are invading

our territory, without the expertise that

we have, but we can't fight them off

because we do not have access to the

source of the work. This has been a

serious threat in many areas of work,

p.1

and I suspect that it may even permeate

the highest levels of commercial

practice. What can we do to stop our

work being done by practitioners who

provide a significantly lower quality

service in high quality cases? We can't

always sell our expertise to those who

are encroaching, perhaps because they

don’t realise just what value we can

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

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

they understand what we offer, and that

they should insist on using us, rather

than, say, allowing the solicitor to carry

out work which we could do better.

Easier said than done, I know.

That takes me, though, to an area of real

interest to me. I think that chambers

will have to grow, one way or the other,

into a position where they can have a

voice which can be heard by the public.

That might mean a national advocacy

group, turning over £50 million plus,

prepared to spend 4% of turnover on

advertising, and exploring new markets

for advocacy. That sort of group could

afford to employ professional officers

(eg finance, HR, marketing, and

management), which would reap real

benefits. If, in addition, the percentage of

expenses over turnover was increased,

that would release more money to

spread the message.

So far, none of this necessarily requires

an ABS. Of course we would welcome

an injection of funds, to pay for the

advertising, but why should a venture

capitalist want to pump money into our

business? I have wondered for many

years whether the normal, shareholder-

driven, limited company structure

would work; the barristers who want

to invest, and run the risks associated,

could set up the company, and invite

others, who might be risk-averse, to

join as employed barristers. Outside

investment could help to kick start the

process, and provide funds whilst the

income caught up. Whether or not a

chambers invited outside investment, a

shareholder structure might work better

for a national advocacy group, although

not necessarily.

One potential advantage is that such a

structure would force us to re-consider

our management systems. At present,

many or most chambers, so far as I

know, operate a system of all barristers

having an equal vote, and therefore

an equal say in the management and

development of the business. That may

not be a practical way forward. It has

become increasingly clear over the last

years that those with good business

skills should manage the business,

and that those who do not share that

interest could profitably leave a small

group to manage. If that group does not

produce satisfactory results then, just

like in a shareholder owned company,

they would have to be replaced. The

management team would doubtless

consist on non-lawyers, as well as

barristers. All of this would merely be

following behind businesses in other

professional sectors, and in the wider

area of commerce.

There are many smaller areas where

a limited company might find that an

ABS was necessary. I have thought for

many years that my chambers could

create a core business (advocacy in its

widest sense), surrounded by several

non-core businesses, all related and all

complementary and contributing. For

example, seminars train the barristers

who speak at them, can be fantastic

marketing, and make money. I hoped,

over 20 years ago, that it might be

possible to create a national seminar

business (Lord Steyn was our first

key speaker, in 1991), but in those

days we did not have venture capital.

Publishing is another area which is

pursued effectively and vigorously by

some barristers, usually by having their

works published by an established

publisher; an area where we could

perhaps venture? A mediation business

is obvious, and could encompass

mediators from all areas.

By creating that sort of diversified,

but concentrated, group, we might put

ourselves in a position to compete in a

market which is becoming increasingly

difficult. We might, at the same time,

increase our skills, focus our attention,

and increase our profitability and

sustainability.

Bill Braithwaite QC, Exchange Chambers

Braithwaiteqc@exchangechambers.

co.uk

The barrister magazine cannot accept responsibility

for information supplied by other parties, views

expressed may not necessarily be that of

the editor or publishers.

07the barrister

08 the barrister

Exculpatory evidence and computer crimes By Karl Obayi Specialist Lawyer and computer forensics expert

Very 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.

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.

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

the law because of the peculiar nuances

associated with how the internet process

works.

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.

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 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

example temporary folders created by

the automated routine of the computer

or the unallocated segment of the

computer hard disk.

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.

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

existence of exculpatory evidence. It is

not enough to merely assert the possible

presence of exculpatory evidence

without proof.

Karl Obayi

Specialist Lawyer

and computer forensics expert

Principal Consultant at - ITevidence

www.itevidence.co.uk

[email protected]

+44 (0)1923 725354www.royalmasonic.herts.sch.uk

Rickmansworth, Herts, WD3 4HF.

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Barrister Mag - 125x180 - July 2012_Barrister Mag - 125x180 - July 2012 04/07/2012 11:00 Page 1

09the barrister

10 the barrister

by sentencers much earlier than

these guidelines suggest – for a

century or more in fact.

I have been invited to consider and

comment upon a new report by the

Transition to Adulthood (T2A) Alliance

– a body convened and funded by the

Barrow Cadbury Trust, an independent

charitable foundation with a long

standing commitment to penal reform.

Since 2009 this coalition of fourteen

leading criminal justice, health and

youth organisations, have run 3 pilot

projects in a bid to establish inter alia

how offending behaviour for 18 to 24

year olds can be reduced and greater

compliance with court orders can be

achieved.

The report brings together a thought

provoking analysis of research into

young adult offenders which should

enable practitioners to consider the way

in which this important age group are

dealt with, within the criminal justice

system from prosecution to sentence

and even before.]

It is of central importance because of

the startling statistics that disclose that

whilst young adults (16 to 25 year olds)

make up only 9% of the UK population

they account for one third of all those

sent into custody each year and a third

of the probation service’s caseload.

According to criminological research

not only are they the most likely group

to commit a criminal offence but also

with the right intervention, the most

likely to desist from crime.

The report ‘Pathways from Crime: Ten

steps to a more effective approach for

young adults in the criminal justice

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

pathway should be read by practitioners.

It essentially outlines[as it declares in its

title] ten points in the criminal justice

process where a more effective approach

can be delivered by professionals to

tackle offending behaviour by young

adults. It is contended by T2A that nearly

all of what the report recommends can

be implemented now, without the need

for new legislation. Whilst much of the

report and the success of intervention

is dependent upon action by criminal

justice professionals other than

barristers or solicitors e.g. the police

and probation services, it appears to

me that instructed advocates and crown

prosecution lawyers have at times a

significant part to play in the process

envisaged.

As Dame Anne Owers [a former Chief

Inspector of Prisons] in her introductory

remarks to the report states “Blowing

out the candles on an 18th birthday cake

does not magically transform anyone

into a fully functioning and mature

adult.”

Most of the points identified have

implications for barristers and solicitors

and all have implications for criminal

justice professionals. Within the space of

this article I only have the opportunity to

raise two or three for your consideration.

The report outlines the need for

appropriate DIVERSION services and

mechanisms to be in place for young

adults. Whilst we are now familiar

with the process that kept many young

people outside the full ambit of the

force of the criminal justice system by

police warnings or cautions the report

emphasises the need for there to be

linked services and structures to such

procedures either before charge or

after. Supporting such young adults with

pre or post arrest drug, alcohol and

mental health services. Such services

to be commissioned in partnership

with the police. There has been a

suspicion that where young offenders

have been warned, cautioned or

reprimanded that this has proved a soft

option for them; perhaps even sending

a message that lenient treatment

without real consequence will follow

criminal behaviour. Where arguably the

emphasis must be on diversion in this

way coupled with support and guidance.

A reparation adjunct might be a way in

which such diversionary procedures can

be enhanced.

The report invites consideration of

the PROSECUTION AUTHORITIES to

take greater heed in any prosecution

process of ‘lack of maturity’ of any

given young adult. It recommends that

the police and the CPS lawyers should

consider such an aspect, alongside

current ’youthfulness’ amongst the

factors tending against prosecution

in line with similar considerations by

probation and sentencers which now of

course take place later in the process.

The CPS must of course use the public

interest test when deciding to charge

an offender following an arrest and it is

contended by T2A has the opportunity

of ensuring that that individual

works with the police and the youth

offending service or probation service

to discontinue any prosecution at any

time where appropriate. This may be an

opportune time to make suggestions to

the CPS Code for Prosecutors. There is

a consultation process being undertaken

at this moment, which can be accessed

through the CPS website.

As to SENTENCING the report asserts

that criminal justice professionals

should support the sentencing process

by ensuring that lack of maturity is

identified. Pre sentence reports should

consider the maturity of all young

adult offenders and clearly recommend

and advocate to the court an effective

p.1

11the barrister

response and where appropriate a

robust community based intervention.

This is important not just because of

the SC’s definitive guideline suggests it

is something to take into account but

because potential sentencing options

such as restorative justice which show

high levels of victim satisfaction and a

good impact on reducing offending can

be an effective intervention for young

adult offenders as it is for those who are

under 18 provided the right assessment

is made of those whose behaviour is

likely to be challenged by such contact.

On the issue of custody the reports

asserts and I have no reason to doubt

with accuracy that “young adults

represent a third of those sent to

prison[sic] each year. The majority are

held on remand or are serving short

custodial sentences, which have been

shown to be particularly ineffective at

reducing offending.” I well remember

the time in my early career when the

suggested premise for ensuring young

offenders avoided criminal conduct

in the future was to argue [if custody

was deemed to be the only option] for

a ‘short sharp shock’ or the ‘clang of

the prison gates’. Of course one could

see that taking a youngster or immature

young person from his or her home

environment however deprived was

removing him or her from what might

now be called their ‘comfort zone’ and

placing them briefly in an institution

for a week or so but not much longer

than that ,was quite frightening. It

ensured [so the theory went]that they

did not become used to the custodial

environment but that it still held some

fear for them such that their conduct

would improve when at liberty by reason

of this as a deterrent. Of course by and

large the young adult would be returning

to the very environment from which

they came and which first led them into

trouble without any support or guidance

beyond the ‘stick’ of future custody. The

statistic highlighted by the T2A report

that most reoffending by young adults

on release from custody occrs in the first

3 months is no surprise. That the report

recommends RESETTLEMENT plans

and ‘through the gate’ peer mentoring

services for young adults who are sent

to prison is no surprise and in the pilot

schemes disclosed real benefit. These are

certainly effective with youth offenders

and yet rarely available to young adult

offenders. Clearly this we would all see

as a laudable proposal but it clearly has

intensive resource implications.

The conclusion to the report asserts:

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

these young adults go onto lead crime

free lives, fulfil

their potential

and give back

p o s i t i v e l y

to their

communities.”

That we can all

agree with.

2. “ The current

criminal justice

process is

simply failing

young adults,

often making

them more not

less likely to

commit crime”

This I suspect

many of us

agree with if not

all.

The T2A report

helps raise

many of the

issues to the

fore for us

that have a role to play in the criminal

justice system to consider and you

as practitioners may be able to start

to implement some of the processes

discussed in the line of your work.

In the same way that youths require a

distinct approach within the criminal

justice system the T2A make a strong

case for arguing that young adults also

require such an approach.

They would be delighted to receive your

comments – www.t2a.org.uk

His Honour Judge J M Burbidge QC.

12 the barrister

Friday the 13th : Swift but not quite so Sure Justice By Richard Atkinson, Chair Criminal Law Committee, Law Society

One can’t help but

wonder whether the

date for the launch

of the much awaited

white paper (Swift

and Sure Justice:

The Government’s Plans for Reform of

the Criminal Justice System) was not

chosen with rather more thought than

some of the ideas that have gone into

it! The White Paper contains a number

of proposals to be piloted and enacted.

This is the government’s way forward

for criminal justice. Whilst many of the

ideas are yet to be crystallised and some

are subject to evaluation they are most

definitely not for consultation.

It is no surprise that the colour of this

paper is white and not green for this

government does not appear to favour

consultation, certainly not with the

defence community. It demands action

whatever the potential consequences.

The opening words of the Minister, Nick

Herbert in his forward to the Paper

focus on the need to reduce delay in

the Criminal Justice System (CJS) and

unsurprisingly we find in the paper the

suggestion that delay is, “a tactic that

can be used to favour a defendant”1

yet many practitioners will know only

too well that the principal cause of

delay in cases coming before the courts

does not take place after a defendant is

charged, but before. The time spent by

suspects on police bail after they have

been arrested can be many months and

in some cases years. Yet this important

subject is ignored in a Paper purporting

to address delay in the system, is this

because it was an issue raised by the

defence community?

This subject was aired in parliament in

the summer of last year and Baroness

Browning (Minister of State, Home

Office) responding to “some commentary

from within the legal community -

particularly from those acting on behalf

of those suspected of an offence”2 told

the House of Lords on 12th July 2011

that “, it is our intention in autumn this

year to consult on matters relating to

bail more generally and to the conditions

that apply to them” and “I hope the

House will be reassured that we are

most certainly listening to people and

intend to consult on those wider issues

that have come to the forefront as a

result of the legislation before us …. We

will of course consider any observations

that noble Lords make in that area in

the course of our deliberations today

and will come back to those at another

time.”3 The White Paper would surely

have been the perfect place to set out

the proposals to address this issue and

yet, perhaps not so surprisingly, the

White Paper is silent upon this issue.

The Paper enthusiastically supports the

Stop Delaying Justice initiative in the

Magistrates’ Courts, yet anyone who

saw the first episode of “the Briefs”4,

whilst supporting the even handed

application of the initiative to the

prosecution as well as the defence, must

surely question where the justice lay in

adhering to this initiative.

For the future the Paper looks at

flexible courts and the greater use of

video technology as ways of improving

efficiency and speeding up the system.

The increased use of Video technology

clearly does have a place to play in

improving efficiency of the CJS and the

additional £10 million pounds that the

Minister said was to spent on this is

welcomed; but if the maximum benefit

of the use of Video technology is to

be achieved, and if Justice is not to

be harmed in the process, then those

on the ground particularly defence

practitioners need to be consulted

and what I mean by consultation is

significant and proper engagement, as is

now taking place over the digitalisation

of the CJS, and not simply being told

what is going to happen as happened

with virtual courts.

Video conferencing with those in

custody, prison to court video link for

appropriate hearings and the use of

live link for witness to be able to give

evidence remotely could deliver a more

efficient system with genuine financial

savings. However the slavish and

dogmatic persistence with the virtual

courts initiative brings no credit to

those who seek to increase the use of

video technology in courts. The damage

to justice through the inappropriate

use of video technology for the first

hearing of a case which can result in

defendants being sent to prison without

ever having seen their lawyer face

to face is recognised by many within

the CJS; defence lawyers, prosecutors

and magistrates alike, yet still the

government persists with this rather

than concentrating resources where

they can benefit both efficiency and

13the barrister

justice. When the minister was asked;

were he to find himself in court would

he be happy if he was unable to meet

his lawyer face to face, he declined to

answer. Perhaps even he recognised

that the “Justice” offered by the virtual

courts system was not quite so sure.

As well as greater use of video technology

the paper offers flexible courts.

Drawing inspiration from the operation

of the courts during last summer’s

disturbances, the white paper sets out

a number of options5 which are to be

piloted. Some may well have merit but

yet again there has been no meaningful

consultation before these pilots are to

be rolled out, indeed there does not

even appear to have any research to see

whether the claims of the government as

of the wishes of witness and others who

participate in the system really want

these changes. Early indications suggest

little enthusiasm from anyone for

extended weekend working especially

with the prospect of significant extra

cost to the system for processing the

same number or even less cases, if

the present trend in the number of

cases coming to court continues, than at

present. In an era when we are told that

there will no more money and indeed

the prospect of further cuts to public

spending, persistence with this must

inexorably lead to harmful cuts in other

parts of an already overly stretched

system, directly impacting upon justice.

Sadly this Paper’s concentration on

speed and the government’s aversion

to proper consultation with defence

practitioners will ensure that if its

proposals are implemented then Justice

in this country will be less, not more,

sure as a result.

1 Paragraph 7 Swift and Sure Justice:


the Criminal Justice System.

2 Hansard, 729 HL Deb col 609 (12

July 2011)

3 Hansard, 729 HL Deb col 610 (12 July

2011)

4 The Briefs – ITV documentary

following the work of Tuckers solicitors,

2 August 2012

5 Paragraph 85 Swift and Sure Justice:


the Criminal Justice System.

Richard Atkinson

Chair Criminal Law Committee

Law Society of England & Wales

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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

In 2009, David Cameron began

to stress the importance of

national well-being. It is a

fact of modern life that work

holds a central place in

society as individuals spend

the majority of waking hours preparing

for work, working or engaging in work

related activities. Thus stress as a result

of work has a negative effect on levels

of well-being. While there is a plethora

of research in the effect of stress in

a number of occupations, the practice

of self-employed barristers has been

questionably ignored. The purpose of

the research summarised below was

to rectify the omission of stress in

barristers. A number of factors (such

as stress and work-life balance) were

measured and compared to levels of

well-being. The results of the research

showed that while long hours as well

as poor work life balance causes a

slight decrease in well-being, it was

high levels of stress that has the most

significant negative effect on well-being.

Workplace stress is the cognitive,

behavioural and physiological reactions

to extremely taxing aspects of work

organisation, environment and content.

The Job Demands-Control Support

Model (JDCS) is the leading model

for predicting job stress. The JDCS

characterises jobs by the level of control

an individual can exert in comparison

to the level of demand required by

the job, where low control with high

demands result in increased levels of

stress. Job demands are psychological,

organisational, social or physical aspects

of the job that require psychological and

physiological cost. Job resources are the

psychological, organisational, social or

physical aspects of the job that function

to reduce job demands. Support refers

to the mediating effects that social

support has on occupational stress.

The research found that of the 3 aspects

of job stress stated, it is job demands

that caused the highest levels of stress

in barristers. Having to work quickly,

intensively, with a high level of effort

and with little time to complete tasks

has resulted in increases in levels of

stress. This is added to and followed

closely by the control aspect. While

it was found that barristers have the

opportunity to learn new things through

work, it was also said to be repetitive

and requiring a high level of skill or

expertise. Surprisingly, even though

barristers generally work alone and are

self-employed, high levels of support

was found. This support stemmed from

good relationships with colleagues,

with high levels of understanding from

other barristers. However this support

was insufficient to neutralise stress

resulting from other sources, perhaps

as it is only a small proportion of time

spent socialising with other barristers

in comparison to the total time spent

working.

Average full-time hours in the UK are

43.6 per week. The research conducted

found that self-employed barristers in

the West Midlands work an average of

56.5 hours per week, 3.5 hours above

the average barrister working hours

stated in a report published by The

Bar Council. While the long hours may

be necessary it decreases recovery

time which can in turn increase stress

levels significantly. If recovery time is

not sufficient there is an increase in

negative affect caused by work resulting

in health problems with varying levels

of severity. Some of the most commonly

documented health problems that occur

as a result of stress are headaches,

sleep disturbance, fatigue and appetite

problems. Aside from health problems,

high stress levels can result in

dependence on drugs (both legal and

illegal) and/or alcohol. Stress, felt over

a prolonged period of time can lead to

chronic syndromes such as burnout.

Burnout is listed in the International

Statistical Classification of Diseases and

Health Problems as a medical condition,

symptoms of which include;

• either persistent and distressing

complaints of feelings of exhaustion

after minor mental effort, or persistent

and distressing complaints of feeling

of fatigue and bodily weakness after

minimal physical effort;

• at least two out of the following

six distress symptoms: muscular aches

and pain, dizziness, tension headaches,

sleep disturbance, inability to relax, or

irritability;

• the patient is unable to recover

from the symptoms by means of rest,

relaxation or entertainment;

It was found that there are a high

percentage of self-employed barristers

who were considering leaving the

profession, with a leading reason being

long hours and high stress levels. If job-

stress can be prevented, alleviated, and

managed then perhaps self-employed

barristers would be more inclined to

stay in the profession. The results of the

research conducted indicated that self-

employed barristers were ill-prepared

for the levels of stress accompanying the

career and ill-prepared to cope with the

feelings of stress accompanying the role.

What is important to take away from the

results of the research is that tackling,

managing and reducing job stress needs

to be a topic taught to those training to

be a barrister. The levels of qualification

and training that are required to become

a barrister allow for stress prevention,

coping and management training to be

completed. Further, chambers should

take into account the high levels of stress

and provide stress reduction facilities or

services. There are numerous ways an

individual or chamber can combat stress.

The Systems Approach to Job Stress

is the most appropriate for barristers

to be familiar with, It looks at three

different levels of interventions (primary,

secondary and tertiary), and targets the

most prominent factors of each level.

Primary intervention, often known as

stress prevention, is the most effective.

This would employ techniques to reduce

effect of stress affecting the barrister before

negative effects become common place.

Secondary intervention aims to modify

stress responses, which is the second

most effective method in preventing a

reduction in well-being and increase in

ill-health. Tertiary intervention is often

the least effective however is the most

common. It is concerned with dealing

with minimising the effects that stress

have already caused in barristers, and

can also be seen as stress management.

In essence, this approach suggests that

stress should be a consideration even

before symptoms of stress are felt, so that

more effective coping and management

can be employed.

If each relevant stage was provided from

training through to the retirement of

a barrister, well-being would increase.

Primary interventions should be applied

and taught during the BPTC and

pupillage years, as well as at regular

intervals though out a barristers working

life. If these are highlighted early and

emphasized, the effects of job stress may

not affect the barrister as significantly as

it currently does. Secondary interventions

should be applied during pupillage and

throughout practice as this will reduce

the prevalence of individuals suffering

from stress symptoms that would require

tertiary intervention. Finally, tertiary

interventions should be readily available

throughout all of the practice of a barrister

to combat any stress symptoms as early,

quickly and efficiently as possible.

Further research is being carried out

to establish more specific stressors and

effective methods to combat these. For a

stress relief solution or more information

on this research please feel free to contact

the author.

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

MSc Occupational Psychology student

at the University of Nottingham and is

a director of Lehias Ltd. Her current

research focuses on bringing her legal

and psychological knowledge together to

improve lawyers work experiences.

15the 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.

Expert discussions

have been

heavily adopted

by the litigation

community and

are widely felt to

be a useful tool in refining the issues

in dispute. However, many experienced

litigators have a horror story about

a meeting that has gone badly, and

litigators ought not to forget that there

are other measures available to them to

seek clarification.

Experts meetings fall under part 35.12

of the Civil Procedure Rules (CPR),

although the provisions are notably

brief. The court may direct at any stage

a discussion between experts; requiring

experts to identify and discuss the

expert issues in the proceedings and,

where possible reach an agreed opinion

on those issues.

The court is likely to direct the issues

to be discussed and to stipulate that

experts must provide a schedule of the

areas on which they agree and disagree.

The court hands are tied when it comes

to full disclosure of the discussions, as

expert meetings are without prejudice

and under no circumstances may be the

subject of cross examination at trial.

This level of protection has become the

centre of some controversy. Last year in

Jones v Kaney [2011] the Supreme Court

dispensed with 400 years of expert

immunity from suit to find that Dr Kaney

could be sued for (allegedly) conceding

too much in an expert meeting. Some

senior voices within the legal profession

believe the Court should go further and

decide that expert meetings be open, not

without prejudice. Roger ter Haar QC,

who acted for the successful appellant

Mr Jones against Dr Kaney, said: “Often

things go drastically wrong during

expert meetings and you can’t undo the

damage done by cross examining on the

decision making process.”

While this is certainly true, ensuring that

an expert is fully trained and prepared

for this meeting will limit the potential

for it to go wrong. While one expert’s

personality may be more forceful than

another, there are vital techniques that

can and must be learned by experts if

they are to take part in the adversarial

process. Jones v Kaney opens the door

to experts being sued for negligence

and experts must be reminded of their

overriding duty to the court.

Furthermore, experts must be reminded

of what their role is in the discussion.

They should take no steps to resolve the

legal issues in the action, or any other

matter outside of their own expertise.

Expert witnesses instructed in litigation

are not advocates for the parties, and

it is not their role to negotiate or to

seek to settle the action at an experts’

discussion.

Where there are concerns over an

experts’ performance, the protocol

to the CPR states that lawyers may be

present at the meeting if all parties

agree, to answer any questions from

the expert. This is highly controversial

and the prevailing view is that lawyers

should not attend. However, where

lawyers do attend it should be to answer

questions about the law and ensure that

the experts cover the issues directed by

the court. Lawyers will also be able to

prevent experts from straying into areas

outside of their expertise and ensure that

one expert is not bullied by a stronger

opponent into submission.

One undoubted benefit of experts

meetings taking place without prejudice

is that it affords them the space to

honestly address the issues without fear

of embarrassment or cross examination.

However, where there are concerns that

a discussion will not help clarify the

issues in dispute or may even exacerbate

the situation, there are other options

available to of the other provisions

under the CPR.

Firstly, correspondence may be used in

as far as is appropriate, to narrow the

16 the barrister

expert issues. Part 35.6(2) provides

that written questions may be put

once, within 28 days of service of the

experts report. The questions must be

for the purpose of clarification only.

Written questions on experts’ reports

and experts’ discussions in civil cases

were CPR innovations and the purpose

of the rule is to facilitate a helpful and

open exchange of information after the

expert’s reports have been served and

prior to trial.

This provision is not intended to result

in cross examination by correspondence

but should enable the parties to clarify

and narrow the real issues in dispute.

In some cases correspondence will

achieve the same result as an experts’

discussion without any of the associated

risks. However, it is not essential to

put written questions to an expert if it

appears that a discussion will be needed

in any event.

The CPR makes available several tools

to assist parties in ensuring their expert

issues are resolved well. However, the

clearer and better prepared the expert

is on their role, duties and the agenda,

the more likely the interests of the

clients will be well served.

Bond Solon’s 18th Expert Witness

Conference will take place on 9

November 2012. For more information

contact Catherine Butcher on

[email protected]

Author

Mark Solon

Managing Director of Bond Solon

and Solicitor

Bond Solon

Paulton House,

8 Shepherdess Walk,

London N1 7LB

Office: +44(0)20 7549 2549

[email protected]

Website: www.bondsolon.com

Why join STEP?Becoming a full member of STEP enables you to:• UsethedesignationTEPtoshowcaseyourspecialistexpertiseinthefieldof

trusts and estates• Increaseyourprofileintheindustry• Networkwithindustrypeers,includingfellowbarristers,solicitorsandaccountants• Become more involved within the industry, with opportunities to speak at conferences,joinspecialinterestgroupsandsitonindustryrelatedcommittees

• Demonstrateadedicationandcommitmenttothefield

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17the barrister

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

While it could

be argued

that any

successful

marketing

of profes-

sional services has to promote the skills

of the advisor in conjunction with pro-

moting the firm, the requirement for The

Bar to push both is even more acute.

Chambers are not a firm. It could be ar-

gued that a chambers is just an address

that houses a collection of individuals

that provide very different services in

very different ways. Aside from their

shared address there may not be any

common bonds or obvious similarities.

This alone makes marketing in the tra-

ditional sense difficult.

Then you need to consider your ‘target

market’, the clients that give you your

briefs. What do they react to? How do

you capture their attention? It’s impos-

sible to say whether solicitors are drawn

to a set for the first time because of what

they know about Chambers or because

of what they know about its tenants.

However one thing is for sure, as the

legal landscape continues to morph and

become an increasingly competitive en-

vironment; the requirement to promote

both your brand and your talent is now

an absolute necessity if you are going to

continue to attract the levels of work you

want to.

The trouble is, as The Bar is a world not

experienced and in some cases not in-

terested in marketing, how do you de-

sign and implement a plan that will tick

both boxes?

As a starting point when did you last sit

down and work out what you were re-

ally all about? Or asked yourselves why

solicitors and lay clients come to you

rather than local or even national com-

petitors? Looking at your most regular

clients, why do they like working with

you? Why do they keep coming back?

The answers to these questions are the

foundations of your brand, the promises

your name makes in the minds of your

clients.

Chambers are no different to any other

business in that if it is going to succeed

in creating and promoting a consistent

brand, all of its members must be agreed

on what that brand should be. The fact

Chambers is a collection of individu-

als rather than a firm in the traditional

sense makes establishing these core val-

ues even more important. If you are go-

ing to market your name alongside your

members’ names, there needs to be a

common bond law firms can latch on to,

a consistent message that will help them

recognise the benefits of working with

you rather than your competitors.

The good news is this is not an onerous

task. All it involves is sitting down and

asking yourselves the types of questions

mentioned above and then once you

have those answers, decide how you are

going to deliver your advocacy whether

you are serving to your solicitor clients

or your lay clients. Are you going to be a

modern Chambers or a more traditional

set? Are you going to trade on your spe-

cialist knowledge of niche areas or base

your offering on higher service levels

and closer working practices?

Whatever decisions you come to, your

core brand needs to be communicated

through every channel – through your

collateral, your website and your prem-

ises through to the personal contact

your clerks and your members have

with your chosen target market.

If it’s proving difficult to start that con-

versation and you’re not totally sure

why people like to work with you, my

suggestion would be to ask them. Af-

ter all if you want to know why someone

buys something, surely the easiest way

is to ask the people who already buy it?

For years now solicitors and account-

ants have taken an increasing interest

in what their client’s think about them.

They frequently conduct qualitative re-

search programmes where an external

party will probe on every area of their

clients’ experience.

The resultant data not only gives them

an insight into what their clients think

19the barrister

and where they need to improve but

also strengthens the overall client rela-

tionship (after all they’re so important to

the firm that they’ve invested time and

money to garner their opinion). On a

more practical level it always generates

new work.

When was the last time your senior

clerk or other employee, never mind an

external agency, conducted a similar ex-

ercise for you?

But I digress. Once you know how

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

to work out what you actually have to

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

all and the only difference between you

and Amazon is that your product is your

knowledge and your experience. You

need to list out your skills, your experi-

ence, your knowledge and the successes

your set has behind them because this is

your inventory.

It is this level of focus that is sometimes

lacking in the professional services, not

just at The Bar but in legal and account-

ancy practices of all different sizes. By

focusing on what you have to sell you

will be able to focus on who to sell to.

This will immediately make your mar-

keting more effective, more cost–effec-

tive and less time consuming for those

involved.

So who do you sell to? The bulk of the

work has already been done. You have

a current clientbase, you have a lapsed

clientbase (those who you work for in-

frequently or past clients who no longer

use you or anyone else in Chambers)

and somewhere you will have several

legal directories listing the firms by lo-

cation and by practice area.

Combining these three strands into a

single database (and taking the time to

clean it to make sure everyone on the

list is still in that position) will give you

a universe to educate, both in terms of

what Chambers stands for and in terms

of the individual skills of your tenants.

Over time you can add more names from

each firm and also grow the database to

include other professionals who could

act as referrers of work. You could also

include relevant press contacts so they

too are kept up to date with Chambers’

development.

Now you have your identity, your inven-

tory and your audience. The next ques-

tion is how do you get in front of them?

The immediate default is advertising

and CPD seminars and again, I’m not

being disingenuous to The Bar, this is

the default of the professional services.

However it

is a default

that needs to

be rewired if

you are going

to make any

headway with

your market-

ing and really

drive Cham-

bers’ message

home. The

bad news is

this is going

to involve you

making more

personal con-

tact with ex-

isting and

prospec t ive

clients and

with the busi-

ness commu-

nity in gen-

eral. And “you” means “you”, not your

clerks! The good news is moving away

from advertising and seminars will save

you time and money.

My suggestion is you adopt ‘intelligent

marketing’. Intelligent marketing costs

less but delivers more. It is also meas-

urable and more than achievable if

you marshal the resources you have at

your disposal (your fellow members, the

clerking team, your website, your case

management system and inexpensive

add-ons like MailChimp), assign respon-

sibilities to each and focus on marketing

solely to the targets most likely to actu-

ally generate work.

The key activities to consider (and while

you don’t need to embrace them all, we

can prove the more you can incorporate

20 the barrister

into your personal marketing mix the

more successful your marketing will be)

are:

1. Networking. Are you visible in

the right places? Do the right people

know you are the right person to speak

to?

2. Spend more quality time with

solicitors. A coffee at court, a beer at the

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

of golf. Engineer the chance to talk so-

cially about normal stuff not just about

the case at hand.

3. Find the right publishing and

speaking opportunities. What are your

particular areas? Identify the events

and press that supports those sectors

and volunteer your services.

4. Distribute practical informative

e-bulletins rather than unnavigable and

overly-long technical papers (the type

that take so long to write).

5. Look at your seminar pro-

gramme in a new light. Design engag-

ing interactive workshops rather than

the same old dry seminars dripping in

bulletpoints.

6. Using your website to maxi-

mum effect. Your page should be your

CV. List significant cases, showcase

your writing or speaking endeavours,

frequently refresh the content so people

have a reason to come back.

However these activities will only work

if you complete your rewiring by estab-

lishing a “Culture of Follow-Up”. We

only work with professional service

firms and so are qualified to make the

following sweeping generalisation of

solicitors, accountants and barristers:

even the most prolific business develop-

ers let themselves down with a lack of

structured follow-up.

The excuse is there’s no time. That the

next brief takes over as soon as you’re

back at your desk. This is nonsense.

There is always time to drop a new con-

tact a quick email, time for a coffee or

even time for a good old fashioned tel-

ephone call.

Admittedly your clients will rarely have

work for you there and then but your

only objective is to stay visible and stack

the odds of a future instruction more

heavily in your favour. That will not

happen until you introduce a “Culture

of Follow-Up” where acknowledging a

meeting and asking for future face time

is a necessity rather than a preference.

If all of this sounds a bit uncomfortable

or even totally unnecessary (after all you

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

me leave you with the two quotes.

The first is from the Head of Family at a

large Midlands practice who was talking

about her desire to get closer to a set she

uses. “I know the head clerk and he’s

great but he won’t represent my clients.

I need to get to know the individual

barristers so I know which barrister is

right for each client because it reflects

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

more work!”

The second is from the senior clerk in a

leading set in the North West. “The only

difference between a barrister earning

£250,000 and one earning £60.000 is

the one on £250,000 spends time with

their solicitors”.

I couldn’t have put it better myself.

These quotes illustrate that while it is

necessary to build a consistent and at-

tractive brand in terms of Chambers,

that brand will never fly unless both

the brand and the efforts of the clerk-

ing team is underpinned by a generous

dose of direct marketing by the barris-

ters themselves.

Douglas McPherson, Director

Size 10 1/2 Boots

t: 077865 40191

e: [email protected]

w: www.tenandahalf.co.uk

Douglas is a director of Size 10 ½ Boots,

a business development agency that

works solely with the professional ser-

vices. More details on their unique ap-

proach to marketing The Bar can be

found at

www.tenandahalf.co.uk.

Alternatively you can request a copy of

their special report (How barristers can

use business development to squeeze

the best results from even the smallest

marketing budget) by emailing

[email protected]

the barrister

Introduction

The challenge that

most chambers face

is short-termism

which is enforced

upon them due to

the nature of their

structures and the limited ability to

invest strategically in what is arguably

the most exciting and biggest change

taking place in the legal services

environment.

As a result, the criteria used by chambers

to assess technology is often limited.

Far too much emphasis is placed on

the functionality needed right now,

the cheapest price, the latest trend or

gadget or because the chambers ‘down

the road’ has it.

Forward thinking chambers take a more

strategic approach where decisions

are more aligned with a vision of what

technology can do to help chambers

compete and be successful in the new

legal world. They adopt a vision and

culture where chambers are run like a

business and are constantly monitoring

ways in which they can win, retain and

service clients, grow their income, be

productive and save time and money to

maximise profits.

Changing buyer behaviours

Progressive chambers are also acutely

aware that it is not just the technology

they choose but the technology that

their clients are choosing that should

influence the decisions that chambers

make.

Whether it is an existing law firm client

of today, direct commercial businesses

or consumer clients of the future, they

are increasingly dissatisfied with the

ranking system and are reaching out

online to find, research and interact

with barristers with relevant experience

of their type of case who can deliver

direct high quality legal advocacy.

Many other clients, especially larger

corporate businesses, are much further

advanced in terms of their own use of

technology and expect chambers to

keep up. Clients increasingly demand

that chambers invest and meet the

requirements for integration into their

internal systems and adhere to higher

levels of security standards before they

even consider providing any work to the

chambers.

Embracing online technology and

investing wisely in security and other

valuable technologies that integrate well

with client systems not only gives clients

a reason to do business with them but

helps create opportunities to promote

the provision of direct legal services to

compete effectively within the changing

legal landscape.

Client centricity

Chambers are getting more client

savvy. Technologies that help deal with

clients who expect more in terms of

responsiveness, communication and

instant feedback will become more

commonplace. Technologies such

as client self-service portals that are

tightly integrated with practice and

case management systems, as well as

advanced communications technology

are being demanded. This means

barristers can keep clients in the loop

24/7 and automate communication so

that messages can be triggered at pre-

set events.

Both barristers and chambers should

also become more familiar with online

collaborative technologies where they

can access, share and collaborate on

documents with clients, clerks and

other parties where needed in a secure

and easy to use online environment,

accessible anywhere, anytime.

Importantly, these advances in

technology mean that barristers and

chambers will have a much better

understanding of their client base by

having all the necessary information and

analysis they need at their fingertips.

Understanding who their top ten clients

are or how much revenue they are

generating at the touch of a

button helps them operate more

How to survive the 21st CenturyJitendra 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…

p.26

21

22 the barrister

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

Bar Council Chair Condemns Secret Court Plans

Bar council calls for new justice secretary to put access to justice first

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 , 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.

"These plans have not only alarmed

organisations which promote civil liberties;

they have also drawn strong criticisms from

the press and from lawyers instructed in

these proceedings, the Special Advocates.

It is time for the Government to sit up and

listen."

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.

“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.”

1. For further information, please contact

the Bar Council Press Office on 020 7222

2525.

2. The Bar Council represents barristers in

England and Wales. It promotes:

• The Bar’s high quality specialist advocacy

and advisory services

• 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

n e w s

23the barrister

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

New Equality and Diversity Rules for Barristers are now in

BsB welcomes publication of cOic tribunal review report

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.

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

Council fully endorses this report and its

recommendations.

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 self-

employed 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 self-

employed 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-bar-

standards-board/equality-and-diversity/

equality-and-diversity-rules-of-the-code-of-

conduct/

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.

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.

n e w s

24 the barrister

When you say

b a r r i s t e r s ’

c h a m b e r s

many people

imagine a

scene from

Rumpole full of dark battered leather

armchairs, piles of briefs tied up with

pink ribbon all crammed into a building

peering out over Lincoln’s Inn fields.

Whilst many do retain a very traditional

feel, modern barristers’ chambers are

on the whole bright airy places crammed

with technology and not at all what most

people would expect. The same is true

of the modern approach of barristers’

chambers to marketing and business

development with new techniques being

applied in various different ways.

Traditionally barristers’ chambers are

named after the building they occupy,

Brick Court or Paper Buildings for

example. They can also be named after

the street name and number of their

address, 18 St John Street or 1 High

Pavement. Some even take the name

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

Chambers have done. There are however

more and more chambers choosing to

change their name into a ‘brand’. This

is a bold move that goes some way

towards blowing away some of the old

traditionalist view of barristers. Zenith,

Argent and Coram have all chosen to

give themselves a name which gives a

sharper more modern feel and which

doesn’t conjure up images of stuffy old

men in dusty wigs.

Branding is nothing new to chambers

and most have a logo which is replicated

across websites, letterheads and

business cards. Branding is however

being explored at a far deeper level with

the division of members of chambers

into key strategic teams. In simplest

terms a chambers which would have

been considered a general common law

set will now have a criminal, a family and

a civil team. Some chambers have far

greater levels of specialism and so these

basic teams may be broken down into

many different teams depending on the

set. Each team practices in a different

area of law from the others in chambers

and can be responsible for maintaining

the levels and standards throughout

every member of the team.

This produces a very polished corporate

feel which provides clients with a

uniformity of quality throughout each

department. In some cases the teams

even operate almost independently of

the rest of chambers; having their own

dedicated team of clerks and support

staff, planning their own events,

arranging training, creating business

plans and budgets etc. Whilst operating

independently the teams use effective

cross-selling techniques offering the

services of other teams within chambers

to their own clients.

When it comes to direct marketing

chambers have learnt quickly and employ

a whole range of direct marketing either

for one-off events or as part of a long

term campaign and websites, mail shots

and brochures are de rigueur for all but

a tiny minority of chambers. However

the rise of other forms of electronic

marketing has seen a dramatic increase

in the employment of and even reliance

upon e-marketing.

Using e-mail to provide details of

upcoming training or social events is

common, as is the circulation of regular

newsletters which can provide articles

and commentary on key legal decisions

and issues. Social media on the other

hand is a relatively new form of soft

marketing to barristers but it is rapidly

becoming popular. Twitter seems to be

the current weapon of choice however

LinkedIn is growing in popularity as

a means of providing information to a

specific target audience on a regular

basis. The use of social media has

many plus points not least of which is

how cost effective it can be with a small

investment of time potentially bringing a

massive return.

On the face of it barristers’ chambers

seem to be well aware of the challenges

of staying ahead in the market place in

rapidly changing times, but is the sum

of the whole mirrored throughout its

individual parts? Collectively barristers’

chambers are very good at marketing

but often the vast majority of individual

barristers don’t have the same degree of

sophistication or the range of different

methods. Many consider that it isn’t their

job and in the not too dim and distant

past much of what now constitutes

marketing would have been forbidden to

barristers by the Bar Council. For many

barristers it is as simple as the belief that

their marketing is part of the function of

chambers and so therefore it is done for

them. This is in part true the marketing

of chambers is co-ordinated for them by

Raising the BarScott 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 andbusiness development if they’re going to continue to prosper.

25the barrister

clerks, support staff and other members

of chambers but they all have a part, no

matter how small, to play.

For an individual barrister the key is to

raise their own profile. The most obvious

approach for a barrister to adopt is to stick

to what they know best. There are many

opportunities to show off their oratory

skills by appearing as a speaker for a

college of law or a legal publisher. The

best way to start is to a run a seminar via

their own chambers current programme

or at a one off event. Speaking to an

audience who will probably know

them and perhaps be more receptive

is undoubtedly an excellent starting

point. Despite the nature of the work

undertaken by barristers, standing up

in front of a room of strangers is not for

everyone. Another route is to try writing

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

write for chambers website or regular

newsletter. Focusing on a specific case

study or a niche area of law and writing

some simple commentary that can turn a

dense 50 page judgment into something

altogether more accessible and useful

to professional clients is invaluable. It

is possible to progress from localised

publications to national by submitting

articles to one of the big legal publishers.

Writing a personal profile and using

LinkedIn to create a bespoke network of

clients and contacts gives the opportunity

to show off an individual’s abilities that

makes them stand out from the crowd.

LinkedIn can then be used to provide

links to articles or upcoming speaking

engagements. The very best way of

standing out from the crowd however is

via human contact. People like to deal

with people they like; technical ability

is only part of what encourages repeat

business. Direct contact is the best way

of being memorable but these need not

be through formal networking events or

organised social affairs. A coffee at court

or a follow up call following a case can

be the difference between being instantly

recalled or completely forgotten. The

personal touch of this type of simple social

interaction will make all the difference!

The really clever part about self promotion

is that it can all be tied in with chambers

broader marketing efforts. Articles and

seminars can be publicised on chambers

website and add to both an individual’s

profile and to the profile of chambers as

a whole. By an individual’s networking

efforts they increase the visibility of their

colleagues as well as themselves. Any

increase in an individual barrister’s

workload by self-promotion ultimately

adds to that of chambers as a whole.

Co-ordinated efforts between individual

barristers and chambers as a brand can

create much greater results than the

chambers marketing machine on its own.

The amount of

work involved

may seem

onerous but

the best way

forward is to

start small and

build up. Each

i n d i v i d u a l

should try

the method

that is most

attractive to

them and see

how it works,

what sort of

results they

get and work

out where to

take it next.

Not everyone

will be as

comfor tab le

attempting the

various methods described above and so

the important thing is for the individual to

do something in which they are confident.

There will be some barristers who think

that these ideas are ridiculous, will make

no difference or are contrary to the way

barristers should conduct themselves.

Twenty years ago the Bar would have

considered brochures a fad, fifteen years

ago no-one would have seen the point in

websites and ten years ago using e-mail

as a means of mass advertising would

have been laughable. Can you ignore the

benefits of self promotion or is it time to

raise the bar?

This article was previously published in

(BDM) Business development in Law

26 the barrister

efficiently and profitably.

It is not far-fetched to see how 21st

century barristers and chambers, rather

than just have client contact information,

will have client profiles at their fingertips

where information such as latest news,

tweets, profiles, background check, case

data, relationship models, financial

standings, credit ratings and so on are

easily accessible to help make informed

decisions.

Productivity

Barristers need to be more flexible

to meet the needs of their clients and

colleagues and they simply must be

able to access key tools and information

whilst on the move. If most people in

business can get mobile access to emails,

diaries, voicemails and information

then barristers should too – or they’ll be

left behind.

The more forward thinking chambers

and barristers are more focused on

leveraging technology for improving

productivity rather than satisfied with

mere access to the information that

they should have as a given. Modern

chambers and barristers should be

demanding so much more. The very best

want to be able to access full case data

easily, search key information quickly

and remotely manage case timings, bills

and cash.

We know that barristers spend a lot of

time working with documents such as

letters, forms or bundles of notes and

this will continue but move to become

more digital and more online. The

modern barrister will be able to not

only search and access the documents

they need, but also undertake automatic

reviews, build cases on the move

through automatic document generation

technologies and have intelligent work

creation and the ability to collaborate on

documents online with clients and other

interested parties.

They will be able to access and manage

numerous forms of digital data whether

these are simple emails or images

to more complex transcripts, videos,

tweets and other digital formats and

integrate these into their case materials.

Case Management

As barristers and chambers take on

more direct work and become more

accountable, integrated case and

document management technology will

need to become a key part of the tools

that modern chambers use. This will

enable barristers to have a central system

that houses letters, documents, email

correspondence, notes, and any other

important data that is easily searchable.

The value of having all items related to a

case filed in one place cannot be under-

estimated. It also provides an audit trail

and ensures compliance.

Additionally, digital data and integration

with emerging digital communications

technology will for example, mean

that client telephone calls, video and

voice messages are integrated and filed

against their case for record.

Marketing and Business Development

Barristers and chambers may not be

able to continue to rely upon solicitors

for referral work. Today’s ambitious

barrister and modern chambers are

becoming more marketing savvy and use

numerous avenues and tools to generate

work and to market themselves.

They are increasingly at ease with

social media and networking online to

generate presence, increase reputation

and develop business. They understand

the value of ROI in marketing and use

technology to track and measure return

on marketing effort and spend on a

regular basis. Chambers must become

experts in digital marketing channels

and become adept in email marketing,

video marketing, search engine

marketing, social media marketing

and other innovative channels as they

emerge to secure work.

Court room technology

Technology inside courtrooms has

moved forward significantly in order

to help barristers, defendants and the

jury gain a clearer understanding of the

truth. These developments include:

• Audio /visualunitscapableof

playing back video and cassette tapes

• Document cameras which can

display documents and photographs,

three dimensional objects and X-Ray

photographs

• Vulnerable/ Remote Witness

equipment which can display evidence

from a witness situated in a witness

suite within the courthouse or in a

remote location

• "Hi-Tech" courtrooms with

fixed viewing screens set into the jury

box, by the witness stand and for the

accused

• Videoconferencing to enable

p.21

27the barrister

barristers to conduct videoconferencing

interviews

Technology that’s due to be implemented

includes:

• Receiving a live feed of the

transcript, audio and video directly on a

computer

• Streaming a live transcript,

audio and video feed off-site

• Running sophisticated full-text

searches across all transcripts

• Sharing work over a network

so multiple team members can work

collaboratively

21st century chambers and barristers

cannot ignore these advances. They will

need to ensure that their own systems

have the ability to integrate and work

effectively with court room technology.

The forward thinking chambers that

have this integration will have real

competitive advantage within the

courtroom.

Commercial drivers

Successful 21st century chambers will

also be more commercially savvy and

recognise the value of profit and more

importantly, cash. They will combine

information with technology to evaluate

cases to see which are profitable based

on history and comparison and make

informed decisions on which ones to

spend more time on. They will be able

to take on alternative fee arrangements

such as ‘fixed-fee’ work and gain

competitive advantage.

Chambers will also be more familiar

with dashboards that provide key

performance indicators. However, the

forward thinking chambers will again

be more strategic and look beyond the

current trend for financial dashboards

and KPI’s to more operational indicators

that really determine and drive the

financial performance of a chambers.

The way the ‘bill to cash’ process works

in chambers is very alien to the real

commercial world. As the changes

in the legal services market move

more towards a commercial model,

this process must and will change.

Chambers must look beyond the simple

billing functionality being offered today.

They should be looking strategically at

how the full end to end process can be

better managed and automated so that

they have clear visibility of income and

cash generation.

Summary

It is clear that the

combination of

rapid changes in

the legal services

market and

rapid changes in

technology will

continue to play

an important

part in the way

chambers and

barristers as

well as their

clients engage

and operate.

These changes

also present

t r e m e n d o u s

opportunities for

chambers.

This is why it will be the ‘forward

thinking chambers’ that have a different,

more strategic approach and a clear

line of sight to investing in technology

for the longer term that will be able to

take advantage of the opportunities,

differentiate themselves from their

peers and be more successful in the new

legal world. They are the ones that will

be run like a business, win a greater

share of profitable work, attract outside

investment, and ultimately, generate

higher income and profits.

020 7489 0291 [email protected] www.clsb.org.uk

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The Bar of England

and Wales is brought

to life in romantic

and gripping ways

in television dramas

such as Rumpole,

Kavanagh, Silks and This Life where

incisive legal minds battle with complex

crime, a multitude of arch enemies and

the psychotic underbelly of society.

Couple this with the imposing nature

of many court buildings (Grantham

Magistrates and County Court being

a notable exception) and images of

bewigged judges and members of the

Bar on television news it is little wonder

that the widespread public perception

of a Barrister is one of an intellectual

force with the undoubted ability to

communicate exceptionally well with

the man on the street whilst at the same

timenotbeing"ofthepeople".

In 2004 the Public Access to the Bar

scheme started to operate giving

ordinary"punters"theabilitytoengage

directly with the Bar without the

assistance of a Solicitor. This started

the very slow (some may say tectonic)

process of the erosion of the perceptions

of the Bar outlined above. The Legal

Services Act, The Jackson Review and

new ventures like "Stobart Law" are

all catalysts which will transform the

gradual opening up of the sometimes

remote community of the Bar into an

avalanche (after all why pay two bills

when only one is necessary) and the

Bar needs to be ready to address the

problems (and opportunities) that that

will bring.

Disclosure

October 2005 saw Part 31 to the Civil

Procedure rules updated with a new

Practice Direction (now known as

Practice Direction 31a) which has now

(in October 2010) been joined by a new

Practice Direction (31b). Part 31 and its

associated practice directions provide an

extremely useful structure around which

the management of disclosure exercises

which include electronic documentation

is made relatively straight forward.

The presence of this structure, a

significant drop in processing prices

over recent years and a far better

educated Judiciary and Bar means that

the days when parties can simply agree

not to look at electronic documentation

on the grounds of proportionality have

all but disappeared. And so it will only

become more and more important that

the Bar is not only aware of the potential

problems surrounding e-disclosure but

also that individual Barristers are able

to confidently and effectively procure

e-disclosure services when necessary

Whilst the Bar Standards Board Code of

Conduct states at Annex F2 6 (c) that;

"6. Abarristerwhoacceptspublic

access instructions must forthwith notify

his lay client in writing, and in clear

and readily understandable terms, of:

(c) the fact that the barrister cannot be

expected to perform the functions of a

solicitor or other authorised litigator

and in particular to fulfil limitation

obligations, disclosure obligations

and other obligations arising out of or

related to the conduct of litigation."

Barristers that rely on this rule to remain

in blissful ignorance on disclosure issues

not only run the risk of remaining in

the pigeon hole outlined in the early

paragraphs of this article but also of

falling behind the peloton in terms of

competitive advantage.

How to buy e-disclosure services

When considering the purchase of

e-disclosure services on behalf of their

clients there are various major points

which barristers would be well advised

to pay particular attention to these are;

The external service provider’s

capabilities.

The size and experience of the external

service provider.

The external service providers charging

methodology.

The external service providers working

assumptions.

1. External service provider’s

Capabilities.

The way in which external service

providers process the electronic

documents they are provided with can

be very different. Barristers should ask

external service providers about their

capabilities, including;

Where does the processing of data

occur? (if it is outside the EEA there

could be data protection issues)

Does the external service provider use

an off the shelf document processing

engine or is it an application they

have developed themselves? (If it is off

the shelf are there any known issues

with the product, if it is a proprietary

application how has it been tested and

benchmarked?)

Does the service provider’s process

utilise lists of “Noise” or “Stop” words

and if so are these lists modified

depending on the contents of keyword

lists?

What is their daily document processing

capacity? (Not really to assess speed

as most service providers will deliver

documents to a review tool on a rolling

basis faster than they can be reviewed,

but to assess the level of sophistication

of the organisation)

Does the service provider have their own

Direct Access and Disclosure By Mike Taylor, Barrister

28 the barrister

29the barrister

data collection and forensic capability

or do they subcontract those elements

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

contractors who are they and what are

their qualifications?)

What document types, if any, is the

external service provider unable to

process? (there may be specific technical

file types in the litigation which the

service provider cannot handle)

Can the service provider search and

host audio files? (Increasingly important

as many companies record all incoming

calls).

Can the service provider deal with

foreign language documentation? (If not

is that going to be a problem for your

case?)

Can the external service provider

scan, code and OCR paper documents

and then add them to the electronic

document collection? (If they use sub-

contractors for this work who are they

and what are their qualifications?)

Does the external service provider have

a hosted review tool option?

If so;

How good does the internet connection

need to be?

Do the chambers firewall settings need

to be altered to gain access and will

this compromise the integrity of the

network?

How is the review tool supported?

Can documents be printed from the

review tool?

What security measures are there

surrounding the review tool?

How fast does the review tool run?

Does the review tool cope with

spreadsheets?

Can the review tool carry subjective

coding across duplicate documents?

What project audit functions does it

have?

Does the tool incorporate “intelligent” or

“predictive” review technologies?

Can the service provider create load files

for the other parties’ document review

tool? (The ESI questionnaire requires

parties to co-operate on the provision of

documents to one another)

Can the external service provider

paginate and print large quantities of

documents if required? (It may well

be necessary to print large quantities

of documents for the court or less

sophisticated parties)

How does the external service provider

usually archive or delete jobs? (Clients

will usually want all of their data

removing from service providers

systems at the end of a job)

Can the service provider give you

immediate answers to the questions 7,8

& 9 of the ESI Questionnaire?

The capabilities of the external service

provider must, to a large degree, match

the requirements of the legal team if

they are going to consider using the

external service provider for the work

required. However don’t rule out service

providers who are a near match but

offer great value for money.

2. The size and experience of the

external service provider.

The general perception within the legal

community is that it is safer to use

larger service providers than it is to

use smaller less established providers.

This may sometimes be true but there

will always be a trade off between size

and experience and cost. In order to

accurately gauge whether or not it is

worth taking the “risk” of using smaller

service providers law firms should find

out;

What experience and qualifications do

the people working on the electronic

documents actually have?

What were the sizes (total number of

Gigabytes processed and total number

of pages of documentation provided

for inspection) of the last 3 electronic

disclosure projects the external service

provider completed?

How many people do they employ

working directly in Electronic

Disclosure?

Are they willing to provide references?

Many solicitors firms end up developing

very effective working relationships

with smaller service providers who they

have past experience with and who

they trust to do the work on time and

within budget and there is no reason

why chambers cannot adopt a similar

approach.

3. The external service providers

charging methodology.

Most external service providers charge

use one of two broad approaches;

The majority of the overall price is

formed by charging a price per Gigabyte

of data that is provided by the client for

processing and filtering (data “in the

top” pricing).

The majority of the overall price is

formed by charging a price per Gigabyte

of data that is passed for review to the

client after filtering and processing has

taken place (data “from the bottom”

pricing).

Both of the methods above actually give

a great deal of control to legal teams

about the overall cost of their electronic

disclosure exercise.

If “in the top” pricing is used then the

scoping phase of the process becomes

even more important as parties should

only be giving the absolute minimum

amount of data to their external service

provider for processing.

If “from the bottom” pricing is used

30 the barrister

then particular attention must be paid to

development of the data filters to ensure

that as few irrelevant documents make it

through to the review stage.

Legal teams often prefer “in the top”

pricing (even if it proves slightly more

expensive) as it provides certainty of cost

to their clients. “From the bottom” pricing

estimates are only ever best guess quotes

(external service providers are often very

good at providing that best guess) until

the actual data has been filtered and

processed.

On top of these processing charges there

are always a great deal of peripheral

costs that soon add up, these are far

too numerous to list, and by the time

the list was created it would necessarily

be out of date but very broadly there

will potentially be charges for project

management and;

Data Collection

Data Preparation

Data Processing

Data Manipulation

Data Production

Data Archiving

4. The external service providers

working assumptions.

This is often overlooked by legal teams

that are looking to purchase the services

of an external service provider. The

temptation is to say, “All of these external

service providers provide essentially

the same service so we’ll just compare

bottom line pricing and go with the least

expensive one”.

This is a mistake because in order to

provide a quote service providers have to

make certain assumptions about the data

and about the filters that will be applied

to it;

Amount of data collected.

The simplest way for external service

providers to bring the bottom line cost

of their quotation down is to have low

estimates for the likely amount of data

collected from each individual who is

subject to disclosure. This is applicable

whether or not external service providers

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

the bottom” methodology.

Legal teams, with very little research,

can find out the likely amounts of data

that each individual subject to disclosure

is likely to have in their possession.

IT departments can usually give good

estimates of mailbox sizes, file share

sizes and personal server space size, it

is also quite simple to find out the likely

amount of personal data (i.e. non system

data) held on portable storage devices

and laptops.

Given the relatively small size of the task

of finding this information out it is always

best to give assumptions on the amount

of data to be provided to external service

providers to them rather than let them

come up with their own assumptions.

This is not the end of the story though

and legal teams must continue to bear

the following two points in mind

Explosion rates.

E-mail “container files” are the usual

manner in which e-mails are stored and

their qualities mean that it is sometimes

possible for legal teams to collect their

own e-mail data and have a preliminary

look at it secure in the knowledge that

they are not altering the metadata

associated with the e-mail.

Another property of container files is that

they compress the data held within them,

and so when the e-mails are removed

from the container files the sum of all

of the e-mails sizes far exceeds the size

of the original container file. The actual

rate of compression is not uniform and

can vary from no compression at all to up

to 10 times compression (or more).

Most external service providers will

charge for the size of the uncompressed

(exploded) container file. This means that

if a external service provider is charging

£500 to process 1 Gigabyte of data and

their client provides them with 1Gigabyte

of .pst data (Microsoft Outlook’s container

file) the likelihood is that it will not cost

£500 to process but anywhere between

£500 and £5000 depending on the rate

of compression.

Clearly external service providers who

are looking to lower their overall quote

will estimate a lower compression rate

(of say 2 times) working in the knowledge

that the likely compression rate is going

to be higher (more usually 3-3.5 times

the size of the container file) but in order

to get a look in at the tendering stage they

need a low quote and they’ll deal with the

price increase at a later stage.

It would be unfair to say that this practice

is usual, or even widespread, amongst

external service providers but in order

to ensure that quotations are being

compared on a like for like basis it is

advisable for legal teams to specify what

compression rates that their potential

external service providers should use

when giving a quotation.

There are some external service providers

who do not charge on the exploded size

of the file but on the compressed file size.

Filtration rates.

Whilst explosion rates are important

whether or not the external service

provider charges using an “in the

top” or a “from the bottom” charging

methodology, the rates that are

assumed for filtration really only effect

the external service providers costs if

they charge using a “from the bottom”

charging methodology (although these

assumptions will affect legal team

assumptions about review team time and

cost whichever methodology the external

31the barrister

service provider uses).

If a “from the bottom” charging structure

is used then the rates of filtration are

extremely important to the overall cost.

Without testing the filters it is almost

impossible to tell what the proportion

of documents passed for review will

be and so external service providers

use their experience to provide a best

guess, usually the guess is pretty good,

but legal teams do need to ensure that

all external service providers are using

the same assumptions, because, as

with explosion rates, some external

service providers will assume a higher

rate of filtration to bring the estimated

cost down.

External service providers who

charge using a “from the bottom”

methodology are particularly prone to

very large swings in price when both

the assumptions on explosion rates

and the assumptions on filtration

rates interplay with each other and so

sometimes provide a high end quote

and a low end quote. This is useful

from a transparency perspective (i.e.

the external service providers are

acknowledging that the assumptions

may be wrong and so prices may vary)

but not very useful when legal teams

go with the overall prices to their

client who generally want to know an

exact price in order for them to budget

appropriately.

Conclusions

Being prepared before you go

to external service providers for

quotations allows lawyers to take

control of the procurement process.

Using the ESI questionnaire will help

in this preparation.

It is also vital that those purchasing

solutions have a good knowledge of

the broad picture of the litigation as a

whole in order that they keep an eye

on the next steps in the litigation. If,

for example, a service provider has

the ability to speed up the document

review process using “intelligent” or

“predictive” technologies then do the

savings at that stage make it worth

using that provider even if that service

provider is initially more expensive?

Being proactive and engaged in the

process will allow litigators to set the

tone of disclosure with the opposing

party and to demonstrate the open

and co-operative approach they have

adopted (should the court ever be

interested in the conduct of parties!).

The simple comparison of bottom

line costs does not give a like for like

comparison and legal teams need to be

constantly aware of the various ways in

which likely costs can be manipulated

by altering basic assumptions.

It must however also be remembered

that the vast majority of external

service providers wish to offer a great

service and real

value for money,

and have different

a s s u m p t i o n s

behind their

pricing because

they have different

experiences in the

marketplace.

Many solicitors

firms use the same

external service

provider time and

again, and there

are valid reasons

for this, not least

the personal

relationship that

builds between

lawyer and

external service

provider which

can often benefit

legal teams

through preferred

pricing and service

a r r a n g e m e n t s ,

as well as growing familiarity with

working practices and proprietary

tools. However this should never stop

legal teams from always making the

procurement process competitive

and using the purchased solution

which most appropriately solves their

problem. By keeping external service

providers on their toes legal teams

will usually obtain better pricing and

service than if they use an external

service provider out of habit.

Called to the Bar in 1998 Mike Taylor

has, through his firm i-Lit Limited,

been advising lawyers and their clients

on e-disclosure since 2006.

For counsel who mediate

www.ExpediteResolution.com0844 879 3166

www.TrustMediation.org.uk0207 353 3237

Barrister mag ad.indd 1 08/07/2012 19:54

“No attorney is bound to know all

the law; God forbid that it should be

imagined that an attorney, or a counsel,

or even a Judge is bound to know all the

law: or that an attorney is to lose his

fair recompense on account of an error,

being such an error as a cautious man

might fall into …” 1

Chief Justice Abbott’s

words give me a

great deal of comfort.

187 years later

and they are just

as relevant today.

During my first week working at Justis

Publishing I attended a training session

on JustCite, the company’s provider-

neutral citator, and I was overwhelmed

by just how vast in content the world

of law reporting is. I stepped out of

the training room and my head was

spinning. My brain had turned to jelly.

How could anybody even begin to

prepare for a case when there’s so much

potentially pertinent information to sift

through?

I recently had the chance to speak to

several barristers at their chambers

about the proliferation of case law

online. I not only found solace in what

they said but it also got me thinking

about the internet’s contribution to

legal research. If the electronic world is

responsible for making the body of law

even more voluminous, then does it do

enough to make it manageable?

Abbott’s words were sage then and are

perhaps more so now, especially when

you consider that the passage of time

and the advent of the internet have

meant that the body of law has grown

considerably over the last few centuries.

The development of online technology

has meant that greater access has

resulted in the need for greater

navigation.

Luke Harris, barrister at 3 Stone

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

huge amount of material being put onto

the internet now and you need to keep

up to date with the law as it currently

stands. Although the electronic world

now provides services, such as JustCite,

to check the information quickly, the

electronic world probably owes it to

everybody to make it manageable

because it’s responsible for the

abundance of information that’s now

available.”

I found a similar sentiment expressed

when I visited 4 New Square and spoke

to Leigh-Ann Mulcahy QC.

“When I started at the Bar, you would

be trying to find other cases that were

related and the big fear was that you

would be in court and have missed

something. You didn’t have the electronic

access to be able to search everything.

You now do, but it’s caused the opposite

problem: you’ve got everything so you

have to have a way of sifting through it,”

Mulcahy told me.

If the advent of online legal technology

tools has led to this need, then the

question becomes this: are tools such as

JustCite up to the task of sifting through

it? Or is my brain still in danger of

turning to jelly when thinking about the

amount of law that’s now available?

To continue the dessert-based lexicon,

the proof is in the pudding.

The fact that JustCite is provider-neutral

makes it a suitable tool to test. It indexes

over two million legal documents,

including cases, legislation and journal

articles, from over 100 databases

around the world. It’s a reflection of

what legal research has become.

When I search for “Proceedings in

Parliament” on JustCite, Pepper

(Inspector of Taxes) v Hart is the first

case to pop up on the results screen.

This is due to the fact that all the

material that’s indexed on JustCite has

been painstakingly read and referenced

accordingly by Justis Publishing’s legally-

trained editorial team. This, in turn,

fuels the JustCite Ranking system—a

sorting feature that ranks search results

by their true relevance, rather than by

keyword frequency, so the leading cases

are displayed first.

In light of this, Pepper v Hart’s position

is to be expected, given the sheer

The law online: has uploading led to overloading? By Mark Debenham, Justis Publishing

32 the barrister

33the barrister

number of times it’s been cited and

the huge impact it’s had on statutory

interpretation.

At the time of writing, the case has

been cited 429 times. The prospect of

looking at that many cases to find out

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

appealing. Luckily, another benefit of

the editorial team’s hard work is that it

makes it easier to see the relationship

that cases share with one another.

Cases are categorised according to

whether they have a positive, neutral

or negative treatment of the case. In

the case of Pepper v Hart, I can see

that of the 429 cases that cite it, 24 are

positive treatments, 403 are neutral and

8 are negative. I can then narrow my

search accordingly. Furthermore, each

are cited in the context of meaningful

legal terms such as “distinguished by”,

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

and the like.

The first few stages of filtration have

already been done. Furthermore, the

findings can be presented in a way that

makes the information easy to digest.

JustCite’s Precedent Map feature is a

visual tool that shows the network of

authorities for each case. It will place

a case in the centre of the screen as its

“focus”, and then around its perimeter

display the key previous cases that the

focus case has cited and subsequent

cases that cite the focus case. Colour-

coded arrows are used to connect cases

in the network and show the citation

type.

If the electronic world is responsible

for exacerbating the need to sift, then

have such technological advances made

things better or worse?

I visited 4 Pump Court and spoke to

Jeremy Nicholson QC, who introduced

me to the quote at the start of this article.

Too much information has always been

a problem: “Before online databases

were available, the main problem was

searching what was reported, which

depended on using some sort of

secondary source, such as paper-based

citators. Searching through those to find

useful citations was a major task. Now

with electronic databases and services,

like JustCite, you can do it very quickly.

It’s easier now to find useful authority

even though the quantity of material is

so much greater.”

It’s also important to note that the

electronic world continues to innovate.

Citations in Context is one of JustCite’s

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

day which relates to the admission

of hearsay evidence. When I started

examining the cases that cited it and

reading the case analysis for each, I

found that many of them related to

34 the barrister

the strict liability under a particular

statue, rather than the hearsay point. In

that instance, Citations in Context would

have been useful.”

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

result was. They give you the facts,”

Harris explained to me.

The practical value of headnotes in

the sifting process is clear. Of course

not every case is reported though,

and in some circumstances they’re

too general to help practitioners drill

through to the specific points of law

they’re investigating. So how does one

sift through and digest the voluminous

amount of important unreported cases?

The England and Wales Civil Appeal

Judgments and the England and Wales

Criminal Appeal Judgments are two

voluminous full-text series from Justis

that demonstrate how this issue can be

overcome. Both series cover cases from

the Court of Appeal and above, and the

former dates back to 1951 while the

latter’s coverage goes back to 1963.

The vast majority of cases contained in

the two haven’t been reported but the

fact that Citations in Context currently

indexes both means that the user can

digest their content after harnessing the

power of features such as the Precedent

Map and JustCite Ranking to sift through

them for unreported precedents.

The value of such features is highlighted

when one reflects on the importance

of being prepared for scenarios where

headnotes aren’t available, especially

when one considers Lord Denning’s

words below.

“…every decision of the Court of Appeal

on a point of law is binding on all courts

of first instance and on the Court of

Appeal itself. No matter whether the

decision is reported in the regular series

of Law Reports, or is unreported, it is

binding. Once you have the transcript

of an unreported decision, you can cite

it as of equal authority to a reported

decision, so it behoves every counsel

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

reported or unreported – which will

help him advise or win his case.” 2

For me, this raises the following

question: how do you sift through the

unreported cases without missing any?

Mulcahy identified the need to have a

frame of interpretation for such cases

when we spoke: “The vast number of

unreported cases now, and the fact that

they’re available online, which wasn’t

the case when I came to practise at the

Bar, means you need some sort of sifting

mechanism. You can’t always read every

single case that’s related to a particular

area. It’s important to have some sort of

case analysis linked to the transcript of

an unreported case as that saves a lot

of time in terms of sifting through what

35the barrister

matters and what doesn’t.”

Cumming added: “There’s much more

ready-access to a broader range of cases

now, both reported and unreported ones,

so you’re seeing more and more recent

cases being cited in court, particularly

for procedural matters.”

He continued: “Many of the unreported

ones may not merit inclusion in the

formal reports. Now you have better

tools at your disposal to find cases

that might be more on-point, albeit

less remarkable. You still need to think

laterally when using search terms to

find them. JustCite is a good tool for

identifying and sifting through recent

cases so that you don’t miss anything

that’s just happened that you need to

fully consider when preparing a case for

court,” Cumming added.

The need to have an online sifting tool

for such cases becomes even greater

when you consider the fact that cases

may take six months to a year to be

reported.

While the electronic world provides a

solution, practitioners, perhaps more so

than ever, need to be discerning in their

preparation.

“You can be exhaustive with your

research but that doesn’t mean that

you should be exhaustive by putting

the whole lot before a court,” Mulcahy

explained. “The Court of Appeal has

been known to complain that it has

been provided with 10 or 20 bundles

of authorities while only a handful of

authorities have actually been referred

to in court. There is a difference

between having them there because

you’ve referred to them in writing and

actually having the time to take the

court through every single one. With the

advent of electronic databases, we’ve

got access to everything but it’s still

really important to exercise judgment

on what is the best authority to illustrate

something.”

Nicholson had similar views when I

asked him about the future of legal

research: “Selection and identification

of authority are going to be even more

important in the future than they are

at the moment because of the volume

of authority. Presenting a whole stack

of unnecessary authorities to a tribunal

does not go down

well. What an

advocate really has

to do it is identify

the authority of the

authority. Targeting

and limiting

authority to what

is really needed

are more important

than ever.”

187 years on from

Abbott’s words and

they still hold true,

but the landscape

has changed. While

a lawyer still isn’t

expected to know

all the law, they are

expected to be able

to find all that they

need and use only what’s needed.

1 Abbott C.J. in Montriou v. Jefferys

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

2 Lord Denning, writing in the foreword

to the microfiche edition of The Court of

Appeal Transcripts 1951-1980

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36 the barrister

It’s Time to take Tendering Seriously By John Binks Bar Consultancy Network

The 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.unitedkingdom-tenders.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 PQQPurchasers 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

37the 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 co-operate 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

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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39the barrister

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41the barrister

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

Is it REALLY that important

to communicate with your

customers on a regular

basis? The predictions of

industry watchers give

pause for thought:

• Over a 5-year period legal

businesses could see as many as half

of their clients move to competing

chambers.

• Legal businesses can expect to

spend up to 7 times more in terms of

cost-of-acquisition of a new client than

they would have to spend retaining an

existing one.

• Legal businesses that boost

client retention rates by as little as

5% could see an increase in profits of

between 15% and 30%.

Regular, relevant communication can

help ensure that your chambers remain

at the forefront of your clients’ minds. It

can help position you as the experts in

the industry sectors or areas of law in

which your clients are interested.

The content, correctly constructed, can

trigger clients to contact you, cementing

the bond between you and them. It can

make clients feel like you are there for

them, that you are their main source

of legal information and that you are

interested in them even when they

aren’t spending money!

A key factor is how the communication

is delivered. Clearly face-to-face will

always be the best method, however, it is

certainly not the most cost effective way.

Direct mail has it place be it via hard copy

print or electronic transmission. The

key is ensuring that the communications

are sent to the right person and that the

content is relevant to them.

With that in mind chambers’ should also

consider the prospect of more innovative

approaches. In an age where there is

an “app” for almost everything it makes

sense for sets to create apps containing

their legal and marketing content. The

new product BarristeRSS facilitates this

with ease. It allows both RSS feeds

and apps to be created and updated

in a central place and distributed to

many clients and websites. Literally

placing chambers’ information in the

palm of their hands! It comes with pre-

written case information (written by

legal professionals) to which chambers

may add comment and personalise. It

also facilitates the creation of specific

RSS feeds for individuals. For example,

chambers can tailor their messages

to Partners within specific law firms

easily and cost effectively. This ability

to create personalised content and

communicate it direct to the client is as

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

communication without being there and

that can only be a good thing!

Author: Catherine Bailey is Managing

Director of the legal marketing specialist

company Bar Marketing. She has also

been writing about the UK legal market

and its evolution for over a decade. For

further information on BarristeRSS

please contact Catherine on 0771 434

5072 or via email at catherine.bailey@

barmarketing.co.uk

42 the barrister

bar mag 54

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