Recent Developments in Law and Practice: Challenges and Opportunities for Junior Practitioners

June 29, 2016

Below are excerpts from a speech given by Fergal Maguire, Associate at the Bar of Northern Ireland, Young Bar Association’s Conference on Friday 6 May 2016.

“One of the biggest challenges facing our profession stems from the aftermath of the recession of 2007 and 2008. As the economy declined, and since it has done so, clients have become more sensitised to the need for improved efficiency and value and most importantly costs.  Certainly, it is my experience from my time in Cleaver Fulton Rankin that there is greater pricing competition between firms leading to efficiencies, the commoditisation (or packaging up) of legal work, and more examples of non-hour billing arrangements with clients, such as fixed fee or capped fees for certain types of work. These all appear to be permanent changes in the legal landscape for law firms.

It is clear that clients today are in the driving seat asking law firms to provide more value at a reduced cost. Technology is one way that law firms can improve efficiency and reduce costs (such as the use of process management software, the provision of smartphones to employees, digital dictation, receiving voicemails to your mobile that have been left on your landline in the office etc.) but it does not provide of itself the client-centred focus and attention to detail that is now expected by clients when providing legal services. Clients want to pay less, they want more predictability in legal spend and alternatives to the billable hour.

Technology continues to have a profound impact on the legal profession, particularly in two areas namely, increasing efficiency and on social media. Firstly, technology can offer law firms and their clients more efficiency and if properly structured, reduced spend and value.  It enables firms to automate certain processes to reduce costs to produce legal services. For example, some practice areas are very paper-sensitive or form-driven and by automating processes or outsourcing to reduce costs, that value is passed on to clients.  We are beginning to see more firms outsource these types of processes to focus their efforts on the more strategic legal work. For example, it is not unheard of for the larger commercial firms to outsource their secretarial or photocopying support.

Social media is another area where we are seeing increasing changes. Solicitors are seeing the enormous benefit social media can have in promoting their services and brand. Over the last number of years many law firms in Northern Ireland have revamped their websites. Instead of showcasing long CVs, law firms are streamlining their websites for use on tablets and mobiles and offering a more concise and progressive brand image with their firms. Websites are now more focussed on getting across the message about solving the client’s problems than they are about boosting the law firm itself.

The increased use of IT resources now makes it easier for solicitors to work remotely. Email and mobile phones with email capability mean that the solicitor can contact the client or expert or barrister at any time, both day and night, whether or not they are at work or in the office. Remote desktop facilities mean that solicitors can access documents and electronic diaries from any computer or mobile device.  All that is required is an internet connection.

The other noticeable impact that technology has had is that working as a solicitor or barrister can now mean the ability to work 24 hours a day, 7 days a week. It is difficult to ensure that time is taken to switch off from work, or indeed to give yourself thinking time.  Back in the good old days (which was before my time!), when correspondence was largely by letter or fax, the recipients would have time to peruse the correspondence received and consider a response.  Previously, time was more available for reflection and consideration.  In the modern era, emails and smartphone responses are sometimes immediate and run the risk of being ill-considered.  There is greater pressure than ever to respond to correspondence straight away, regardless of the time of day, or to pick up emails when you are on holiday.

Work–life balance is about prioritising between “work” (for example, career and ambition) and “lifestyle” (for example health, pleasure, leisure, family). Everybody has their own definition of what is an acceptable work-life balance. During the first few years as a junior solicitor or barrister you will no doubt experiment on what does and does not work for you in terms of when you do your best work, (for example, are you a night owl or a morning person). There is no right or wrong answer to the question of what is an acceptable work-life balance and it is a matter of you experimenting to figure out what is best for you.

Public Spending Cuts

Since the formation of the coalition government in May 2010 you will have read about and perhaps felt the range of public spending austerity measures which have been brought in.

These can affect law firms in various ways. Firms that work for clients and sectors which rely heavily on public funding such as health care, housing, local government, transport, education, infrastructure and charities have found much of their work drying up.  The Government has tried to trim the legal aid budget affecting areas like crime, family and personal injury.

I suspect that commercial firms, have not been substantially affected by work in this area however I am aware that our family law department do assist legally aided clients and that they have noticed a increase in queries concerning applications for legal aid, especially in respect of the financial criteria applied by the Legal Services Agency. I do however appreciate the time-consuming nature of making applications for legal aid and sometimes the effort involved in dealing with the Legal Services Agency.

Cuts to the legal aid budget also mean that individuals are less likely to get assistance from the Government in relation to civil cases. This means that litigants have to spend their own money on legal assistance, or represent themselves as Litigants in Person, which can on occasions lead to more time in Court at longer Court reviews.

Cuts to the legal aid budget also puts pressure on litigators and barristers to be cheaper and litigants are now choosing where and how best to spend their money.

Staying on top of your area of practice

One of the difficulties that I have found as my practice becomes busier is staying on top of the latest developments in my area of practice. Whilst we are all busy ensuring that we return emails and telephone calls to clients, or lodging pleadings on time in accordance with the latest directions, it can be easy to forget about practice development and developments in the law. I have found that subscriptions for the latest judgments published by the Northern Ireland Court Service website, or the Practical Law Dispute Resolution weekly email, or the Irish Daily News to be useful. The Irish Daily News, whilst quite new, is particularly useful as it appears in my email inbox around lunchtime and can provide information about what is going on in the legal market, both north and south.

When I started practice in 2008, the Law Society would have almost every month published it’s magazine, The Writ. Now, The Writ is published occasionally only and the Law Society provide members with a weekly email called the E-NFORMER – which is more accessible, containing links to various matters of interest and can be read on a tablet or mobile anywhere.

It is now perhaps easier than it has been previously to stay on top of your area of practice.

The Future – An English perspective? The Legal Services Act 2007 

When considering what the legal landscape in Northern Ireland will look like in 10 years time it is often been the case that we can look across the water at England and Wales for a heads up, as it were.

The Legal Services Act 2007 is an Act of the Parliament that seeks to liberalise and regulate the market for legal services in England and Wales, to encourage more competition and to provide a new route for consumer complaints.

The introductory text to the Act states that it is an Act to “make provision for the establishment of the Legal Services Board and in respect of its functions; to make provision for, and in connection with, the regulation of persons who carry on certain legal activities; to make provision for the establishment of the Office for Legal Complaints and for a scheme to consider and determine legal complaints; to make provision about claims management services and about immigration advice and immigration services; and to make provision in respect of legal representation provided free of charge.”

The Legal Services Act 2007 came into force in England and Wales on 6 October 2011. In a nutshell, the Act aims to liberalise the market for legal services allowing non-solicitors to become partners in law firms and so-called Alternative Business Structures to allow lawyers to team up with other professionals to offer services.  Alternative Business Structures also allow firms to seek external investment and more than 300 ABS Licences have been granted so far with legal services now offered by the Co-op, the AA, Eddie Stobart, Admiral and KPMG.

I understand that so far this influx of new legal service providers has not led to a massive upheaval in the way people get their legal advice in England and Wales. Notably, no supermarkets have so far gained an ABS Licence despite the fact of the Act being dubbed “Tesco law” because it potentially allowed legal services to be bought alongside groceries at your local supermarket.

But is this one for the future in Northern Ireland?

Further, some of you may be aware of Lord Justice Gillen’s wide-ranging Review of Civil and Family Justice in Northern Ireland, with a view to improving access to justice; achieving better outcomes for court users; creating a more responsive and proportionate system; and making better use of available resources.

The last comprehensive review of the civil justice system in Northern Ireland was 15 years ago. Since then, both the landscape within which the civil and family courts operate and public expectations of what that system should be able to deliver have changed substantially.

The Lord Chief Justice at his Annual Address in September 2015 stated that:

there have recently been major, judicially-led reviews in Scotland and in England & Wales which have highlighted better ways of working. Many of the ideas that have surfaced through these reviews, such as the scope to make greater use of technology to run the business of the courts and to give the citizen easier access to justice, are just as applicable to Northern Ireland as they are to other parts of the UK.

He went on to say that:

This is the first opportunity in a generation to effect meaningful change in how we deliver civil and family justice, and I believe that the system is ripe for reform. While our principal aim is to deliver a better experience for court users, and so we are more interested in the high human cost of the system than the financial one, I think it is likely that a natural by-product of this work should be an overall reduction in cost. For instance, we need to look at more proportionate ways to settle low value claims; we need to make more use of alternative dispute resolution; and we need to avoid the courts being used tactically to inflict hurt on others when relationships have broken down, particularly where there are children involved.”

Therefore, it appears that change is on the way.

Finally, and moving on from the comments of the Lord Chief Justice, I haven’t even touched on the opportunities offered by Alternative Dispute Resolution and how the rise in popularity of adjudications, mediations, arbitrations and early neutral evaluations to settle disputes can open new opportunities for junior practitioners who are often more adept at adapting to change. Many solicitors and barristers are now training, or have trained as mediators and adjudicators, which can only add to our skill set and help us attract work as the Court now really becomes the forum of last resort to settle disputes”.

Should you have queries about the content of this article, please do not hesitate to contact Fergal Maguire, Associate.

E: f.maguire@cfrlaw.co.uk

T: 02890271307