Gender and the market for students

Legal Week have just posted an interesting looking survey.  This caught my eye:

The top five reasons that influence students to apply for a training contract at a particular firm are career prospects post-qualification; the brand of the firm; gender equality; impressions gained from a summer placement and the availability of LPC funding. Salary and benefits are lower priorities, according to our survey, with perceptions of work/life balance and a law firm’s performance at a graduate fair further down the list.”  (my emphasis)

With gender diversity at partnership level still concerningly weak.  May be firms will start to take this issue seriously And, dear students, when making your assessments of firms, do not be fooled by mentoring schemes and the like.  These have their virtues but what really counts is numbers: what proportion of women are on the partnership; what proportion have been promoted recently.  Firms can fiddle with process to give the feeling and appearance of action, but soon or later reality will bite.

Legal Aid Reform: Let’s be Civil

The Government’s proposals for legal aid cuts have drawn a great deal of criticism, but the focus of nearly all of this has been on criminal defence work. It’s a failing I have been guilt of myself (I co-signed a letter to the Times which concentrated purely on the cuts to criminal legal aid).

The proposals include (I have taken these from the Law Society’s summary):

1. Reduce scope of prison law to cases that involve length of detention and adjudications that require representation to comply with Article 6
2. Residence test for civil legal aid restricting eligibility to those with at least 12 months’ lawful residence.
3. Legal aid payments for judicial reviews will only be made if the permission application is successful.
4. Civil cases to have at least 50 per cent change of success – ‘borderline’ cases no longer eligible.

There are a number of potentially serious results which could flow from such proposals. Rather than assume a Government that takes seriously legal obligations and the rights of unpopular individuals in positions of significant vulnerability, let me concentrate on some more pragmatic implications.

By taking matters out of scope, it may generate large numbers of exceptional funding applications (the safety valve procedure by which the MoJ hope the Legal Aid Agency can avoid Article 6 challenges to the lawfulness of denial of legal aid). When turned down some of these will be subject to judicial review. Any judicial receptiveness to such claims through, say, granting some of them may produce a cascade of further reviews and funding decisions. Item three will encourage firms to issue proceedings in any circumstances where they are able to get paid. There is the potential for this to create more cost than it cuts.
There are a number of response to 4. It rather depends on how well firms can identify which cases have prospects of success. I have seen no persuasive work on this. If the nature of the work is such that predictability is very difficult, then firms will be able to pick very few winners; they will cut caseloads dramatically to a small number of ‘dead-certs’ or give up altogether. This may kill off certain areas of work. There is a further concern that specialists in prison law cannot practice without criminal defence contracts. The forced merger/consortia approach of the PCT proposals spreads further. There is a good case for saying it is a wasteful process with uncertain outcomes; though it may also aid prison lawyers to better identify (and therefore increase somewhat) the identification of prison law cases that can be run. It is another way in which the reforms may drive up costs.
Another response is to seek inter partes costs orders in judicial reviews far more frequently than now. This would have two effects: increase the burden on courts; and, where successful, shift what was once legal aid expenditure onto other public bodies and departments.

Now in all honesty, I do not know how bad this is. These are just plausible ideas about potential problems. They make sense to me; but I do not know how serious the issues are in fact. I have read, rather quickly because it pained me so, the Government’s impact assessments. These are never very convincing documents; but these ones looked more superficial than normal. I was not at all convinced that the Government knows what it is doing. If costs rise and costs are spread to a wider range of departments, the MoJ may look incompetent to its sibling departments and the Treasury. It will be of little comfort to anyone: bad cuts, beget more cuts.

Public law work associated with immigration and prison law cases is not glamorous or popular, but it can be important in rule of law terms, and also deal with matters where human vulnerability is intolerably acute. Cases that deal with children, mental health problems, and the hospitalised as well as some of the State’s dirty washing (aberrant behaviour of troops abroad, behaviour of the security services) protect essential elements of humanity and democratic health. These changes may also cost us more because of a hasty intervention to save modest sums of very small parts of the legal aid budget.
There is a meeting at the LSE on Monday to discuss these issues. I hope practitioners and others come with good questions and even better answers as to what these proposals mean. There is a good deal of understandable, but overheated rhetoric, on other elements of legal aid and associated reform. The professions need to speak up beyond criminal law but do so in measured and forensic terms that speak to the Government’s concerns. Details of the event are here.

Managing Behaviour Change: Ethics and Risk

I have been thinking quite a bit recently about how lawyers conceptualise and manage ethics within their organisations. Also, separately, I have begun to look at how they conceptualise and manage legal risk. Whilst the temptation is to see these processes as preventing aberrant behaviour, elements of both risk management and ethical practice involve behaviour change. In that light, I came across this work by Michie et al on managing behaviour change which provides an interest framework for thinking about interventions designed to modify existing behaviour or prevent aberrant behaviour.

Michie et al call their model the behaviour change wheel. It is a non-linear and therefore does not specifically model linkages between the different categories and subcategories within the model. However, it does provide a framework within which one can reality check comprehensiveness of analysis behind behavioural change initiatives.

They create the COM-B framework which suggest that capability and opportunity influence motivation which in turn generates behaviour (4). Capability is split into physical and psychological capabilities; opportunity into social and physical influences on how we think and act; and motivation into automatic and reflective processes. I have been doing work on the role of values, culture and incentives on the reflective processes of lawyers, so this struck a chord with me. I have modelled ethical decision making by suggesting that behaviour is influenced by three Cs: character, context and capacity – many of the sub elements of this model map onto the Michie model. There are two further layers to the model making it of practical interest. The kinds of policies that are used to influence behaviour are familiar to most of us (communications/marketing; guidelines; fiscal incentives; regulation; legislation. There are two more – I would be interested to hear if these two are used by law firms or in-house teams to manage risk and ethicality, they are: environmental/social planning (designing and/or controlling the social environment) and delivering a service (internal anonymous advice hotlines for ethics problems may be an example here, though do firms offer these?).

The most interesting element was the way the Model anatomises about how these policies actually employed rather different interventions (and here I quote from the article directly). The interventions are:

• education (increase in knowledge or understanding)
• persuasion (using communication to induce positive or negative feelings or stimulate action)
• incentivisation (creating expectation of reward)
• coercion (creating expectation of punishment or cost)
• training (imparting skills)
• restriction (using rules to reduce the opportunity to engage in the target behaviour (or to increase the target behaviour by reducing the opportunity to engage in competing behaviours)
• environmental restructuring (changing the physical social context)
• modelling (providing an example for people to aspire to or imitate)
• enablement (increasing means/reducing barriers to increase capability or opportunity)

I have been doing work on ethical consciousness amongst lawyers and what has struck me to date (the work is ongoing) is how far thinking about ethics is influenced not by ethical rules or principles but by business principles and the needs of the (lawyers’ own) firm. Expectations of reward are geared around billing: heavily economic incentives influence judgments about risk and ethicality. My impression is that attempts to train around ethics are minimal and education tends to focus on instrumental approaches to key rules (bribery being current flavour of the month for obvious reasons). Relatively little work goes into persuasion. Tone from the top is of course seen as important; as is the risk of punishment should egregious conduct be exposed. We could see tone from the top as persuasion or modelling, but I harbour doubts about how deep tone from the top – or indeed the middle –runs within law firms. The babbling brook of financial targets runs more noisily and more quickly. There is a tendency still to see ethics in particular as a matter of education; and something which ought to occur before practice., whereas once in practice ethics is perhaps assumed.

Whether this is something to be worried about is moot. For all that examples of potentially aberrant behaviour are revealed by (say) the hackings scandals or the travails of banks, we do not know how common ethical problems are. The issue of legal risk appears to be a different matter. In-house lawyers and their employers are increasingly concerned about legal risk: predicting, managing and ameliorating it. To the extent that they are trying to modify behaviour within their own organisations . They might want to look through the list of policies and interventions and consider whether there are some approaches which may be missing from their armoury.

Legal Aid Cuts: Some Thoughts

The Government has announced its intentions to make further cuts to the legal aid programme; concentrating especially on prisoners cases; and criminal legal aid.  The oft mooted and abandoned price competitive tendering of criminal work (but not Crown Court advocacy) is of particular interest as an attempt to force through a minimum of 17.5% cuts.  I can’t do much better than refer you to Roger Smith’s excellent blog, but a few points are worthy of further note.

The attempt to force firms to merge or form consortia to bid for contracts is of particular interest  Add tight timetables, reduced remuneration, and a one size fits all contract to the mix and there are opportunities for significant problems even with very well managed bids.  Community Legal Aid Centres and Networks were an attempt to do something similar with a much gentler timescale and within a looser framework.  Competition as a means of forcing unwilling providers together is fraught with difficulties.

The second point, which has not garnered much attention, is that the consultation pushes criminal defence firms and (through direct access) barristers towards charging privately for work.  Messy boundaries between legal aid and private work; the possibility of ‘unbundled’ models of criminal defence practice; the risks of vulnerable punters being the victim of sharp charging practices (exacerbated by the desperate straits some firms will find themselves in) and the rise of unrepresented litigants in Magistrates and Crown Courts may be giving regulators and Courts headaches for some time to come.

Good law, and the Peoples’ Halsbury

The Cabinet Office and the Office of the Parliamentary Counsel have published a very interesting report criticising the complexity and quality of legislation and suggesting a much greater willingness to do something about it through a Good Law initiative.

In the course of this review it appeared evident that while users would like legislation that is simple, accessible, easy to comply with and not unnecessarily burdensome, at present those are not the features of modern legislation.

Some of the reasons for legislation falling short of what users hope for are inescapable. But there are other factors which ought to be within reach of government, Parliament, publishers and others – either acting in their own sphere of influence or in partnership.

For that to happen, there needs to be a shared ownership of, and pride in, our legislation. And pieces of legislation need to be regarded not just as documents in their own right, but as parts of a larger mosaic of legislation. It is the aggregate to which the user will have access to.

There also needs to be a stronger incentive on all involved in the process to avoid generating excessively complex law, or to act positively to promote accessibility, ease of navigation, and simplification.

The Guardian are hosting an online debate at 12 noon today (Friday). The extent to which simplification is possible and desirable is, of course, a matter for debate; and a debate which will have to encompass the sometimes counter-productive approach of common law decision making; but the prize for any progress on the initiative is improved in efficiency, effectiveness and access to justice (see here for my previous thoughts on that subject).

Let me highlight some of the findings in the Cabinet Office Report as part of my encouragement for you to read it

• “Even legally qualified users frequently complain about the excessive complexity of legislation and often tend to read the explanatory notes accompanying the Bill, rather than the legislative text.”
• “The vast number of legislative effects and their complex interconnections mean that currently the legislation.gov.uk database is not currently entirely up-to-date. However, the National Archives are tackling this problem via their Expert Participation Programme.”
• “The mystification of legislation though, seems to be generated by the difficulty that users experience in accessing reliable, clear information on their rights and duties, combined with a lack of guidance on the compliance requirements relevant to them and their specific circumstances.”
• “The legislation.gov.uk user study also found that the comprehension level of legislative texts by both legally qualified and non-legally qualified users was generally quite low and that all users found it challenging to read legislation and demonstrate their understanding of it. Most users interviewed said that they expect legislation to be hard to read – even barristers.”
• “until recently, legislation, legislative techniques and interpretation were often neglected in undergraduate teaching”.

   

A sense of the complexity is shown by this diagram of the links between when looking at the current in-force state of just one Act.

That legislation.gov.uk should not be an up-to date and public database of statutes in force is something of a scandal given that, as citizens, our ignorance of the law is no excuse even, as this report shows, if that ignorance is inevitable. Publishers put substantial resource into current law together and making it (more) intelligible; but then sell it on to those who can afford it. It will be interesting to see whether there is any incentive on them, or suppliers of legal services to provide anything approaching digestible access to the law. What we really want to see is a People’ Halbsury’s Law of England – a Hurculean task (and one requiring a name the public rather than us lawyers would recognise). LSB/LSCP research suggested that the public is mistrustful of private providers doing this job (partly, I suspect, because provider information tends to rather quickly signpost the user towards paying for advice). Unbundled service providers have more of an incentive to produce genuinely useful information, but risk significant investment which cannot be recouped. Universities have something of an interest in getting involved for the educative benefit of their students; and as part of their broader mission to engage with the public; but that interest has real practical and resource limits. Furthermore, as we are beginning to see as regards pro bono clinics, these kinds of initiatives risk being used as part of a process of differentiation or marketing by law schools. This militates towards reinvention of wheels and fragmentation.

So the path towards good information about law; never mind good law, is a difficult one, facing significant obstacles; but it merits significant support.

Judging? Poetry, innit

Sir Alan Ward  has signed of his “penultimate judgment in the Court of Appeal” with some rather poetic prose; so poetic in fact, I could not resist the urge to put in line breaks. The two key passages of the appeal, which carry some pathos are here.  After underlining that the appellant must lose, he continued…

But all of that is of no moment.
He had indicated that he was soon to move
and he has moved from the mooring.
He has thrown off the bow lines
and sailed away from the safe harbour
though whether to catch
the trade winds in his sails
or just withstand the buffetings
of the gales in the English Channel
I know not.

After underlining that this is his penultimate judgment after 18 years in the Court of Appeal, he continues:

I am a kindred spirit
who has sailed away from the safe harbour
of the Royal Courts of Justice,
not at all sure how to explore,
or what to dream
or what I am about to discover.

I wonder if his final judgment is written. Perhaps a judgment in blank verse beckons.

(HT Adam Wagner and Andrew Keogh for spotting this)

No truck with ABSs and litigants in person? Stobarts in hot water

For those in the professions, or elsewhere, who like to wax lyrical about the problems created by litigants in person and the potential problems of Alternative Business Structures then the Stobart Group Limited and Others v Peter Elliot [2013] EWHC 797 (QB) makes interesting reading. It is also an important reminder for lawyers of their obligations when filing ex parte applications. I also think it is more interesting about what it says about litigant in person than for what it says about Stobarts. However, I expect more hay to be made than I will do out of their most recent press release which begins with the words: In the legal world, reputation is everything.

This case was one of series brought by Mr Elliot, a whistleblower turned litigant in person various people connected with Stobarts. For our purposes the most interesting of these is Mr Trevor Howarth, Stobarts Group Legal Director and Managing Director of Stobarts Barristers. Mr Elliot’s case is a troubling one on a number of levels, which HH Judge Pelling QC sets out admirably. Twice committed for contempt (once suspended), and bearing a significant grievance for having a final hearing proceed in his absence shortly after (he alleges) leaving prison and having attempted suicide he has somewhat remarkably managed to get some of his 59 allegation of contempt beyond the leave stage. The case is a salutary lesson in how, buried within long, irrelevant and ill-founded applications sometimes made by litigants in person, even those at the more difficult end of the spectrum, may have points. And points of some significance.

It is probably wiser for me not to stray too much into the allegations, but some key points can be outlined. They relate to allegations that an injunction was sought ex parte restraining Mr Elliot on the basis of oral evidence, and then witness statements which, in material respects were untrue. Two of those questionable statements were made by Mr Howarth. It is worth saying that Mr Elliot was imprisoned as a result of subsequently breaching that injunction.

To succeed at this hearing Mr Elliot had to provide strong, prima facie evidence that the allegedly false assertions contained in witness statements filed by the Stobart Defendants were made knowing them to be false, and that they would be likely to interfere with the course of justice. Knowledge is also proved if a statement was made by someone who effectively does not care whether it is true or false (i.e. they are reckless). Carelessness is not sufficient.

At trial, he will have to show this beyond reasonable doubt. As a litigant in person. I am guessing he’ll be up against a QC, but I may be wrong. The mind begins to boggle and judges begin to book their holidays or have a quiet word with their listing officers. Mind you, he has done astoundingly well to get this far, and all credit to Judge Pelling on the patience necessary (I apprehend) to deal with the pleadings and the considerable care needed (I imagine) during the hearings. As the judge points out: permission will only be granted if there is a strong prima facie case shown and the Judge is satisfied a) the public interest requires the committal proceedings; b) they are proportionate; and c) in accordance with the overriding objective. These are not easy tests to satisfy, although that does not mean his allegations are made out. He also had to satisfy the judge that his applications should succeed even though he had been previously found to be an untruthful witness by another judge on another occasion. HHJ Pelling appears, then, to have been looking very carefully at corroboration in deciding which allegations should proceed.

In a nutshell, the key points in so far as they related to Mr Howarth, are that his supporting of two statements made by the current CEO of Stobarts in the injunction proceedings were untrue and made knowingly (or recklessly). One of those is a claim that it was his opinion that Mr Tinkler has been held to misrepresent documents was wholly untrue. This was in spite of the fact that Sharp J having had said that Mr Tinkler had “misrepresented the effect of a document that he had not exhibited” at a previous hearing (para. 60). Mr Howarth claims he did not recall this adverse statement against his client when making his own statement to the court. As the judge puts it, “The proximity between the date of the judgment (15^thMarch 2012) and the date of the statement to which this Allegation relates (13 June 2012) does not make this self evidently correct. It does not justify simply rejecting the allegation out of hand without at least requiring it to be tested by cross examination.”

One defence appears to be that this was just a slip at the time. That is, Mr Tinkler’s mispresentation was made in error. The judge rejects the relevance of this, “In my judgment the material available establishes a sufficiently strong prima facie case that Mr Howarth’s statement was false in the sense that he could not honestly hold the opinion claimed, and was known to him to be false at the date he signed the statement as was the fact that if it was false the misstatement was likely to interfere with the course of justice.”

A second allegation is that when Mr Howarth says that “… as a consequence of the previous outrageous and incorrect allegations made by Mr Elliott to the CAA that WADI was conducting its flying operations unlawfully, a long expensive and detailed investigation was undertaken by the CAA into the WADI operation”. Saying Mr Elliot’s allegations were “…outrageous and incorrect …” was false and was known to Mr Howarth to be false at the date of his witness statement. There is a letter from another firm of solicitors suggesting that the Company knew, even perhaps accepted, that there was substance to the allegations. Again the judge finds a sufficiently strong prima facie case that the assertion that his allegations were false and known to Mr Howarth to be false to pass the threshold test allowing the allegations to proceed to trial.

Again, I emphasise this is not the same as saying the allegations are made out. Whether they are or not, there is though the broader point which is worth remembering: Mr Howarth’s statement was presumably being made as legal director for the company on the basis that his statements of opinion and fact would carry greater weight with the court as a lawyer. Whether Mr Howarth’s claims were made knowing or reckless as to their truth, they were wrong. Was he straining too hard to help his employer company?

A point raised in the judgment is, is this case just a vendetta by a failed litigant in person with a familiar sense of grievance at his treatment by the courts (or more pertinently perhaps his opponents)? Was he seeking to re-litigate the previously failed litigation and smear Stobarts in the process? Whether this is the case or not, I was surprised to see Stobart Defendants’ counsel, “submit that even if a strong prima facie case of contempt has been demonstrated the court should refuse permission because to give permission would be to facilitate Mr Elliott’s ulterior purpose.” That is if there is a prima facie case of dishonesty by a party and their legal director we should pass over it because it pours oil on the troubled water stirred up by a litigant in person. That is an argument I would not relish making: should we do not care about the honesty of lawyers in such situations? It may illuminate, though, an attitude that litigants in person might thought by some as somewhat beyond the normal respect of the courts or the rule of law.

Thankfully, the judge rejects the argument on the basis that a contempt hearing will be confined to the contempt allegation. But also on this basis:

The real point however is this – if, as is alleged, Mr Tinkler and Mr Howarth have knowingly made false statements then the fact that the proceedings may attract unwanted publicity or expose the respondents to unwanted litigation ought not to be permitted to trump the public interest issues that I mentioned at the start of this section of the judgment. Likewise the fact that the Stobart parties were able to obtain the Tetlow Order in the absence of Mr Elliott and without any meaningful consideration of the evidence or the law ought not be permitted to prevent the investigation of the limited number of allegations of contempt where I have found a sufficiently strong prima facie case to justify granting permission.  The requirement for a strong prima facie case to be demonstrated before permission is granted operates as a filter to prevent scurrilous allegations from being made and if the allegations should ultimately be found not to have been proved then a judgment to that effect will vindicate those against whom the allegations are made.

We shall see.