Unbundling research

The LSB and Legal Services Consumer Panel commissioned MORI to produce an interesting piece of work on experiences of unbundling.  The report defines unbundling has:

an ‘unbundled’ service separates a package of legal services into parts or tasks. The consumer and legal services provider agree which parts of the package the provider will provide, and which tasks the consumer will undertake.

They interviewed 35 consumers, mainly those who had had good outcomes and so who may have responded positively partly as a result.  The sample was designed to include a range of consumers in three areas of law (family, civil and immigration).  They were drawn from Ipsos MORI’s online panel and Ipsos MORI’s “face-to-face nationally representative omnibus survey”.  Of those, 259 had a civil, family or immigration problem for which they had used a fee charging legal service and had agreed to make use of this by way of unbundling (my intuition is that this figure is on the high side).  From these leads 35 interviews were arranged and conducted. 14 practitioners were recruited by a variety of methods: most were solicitors.  Six Judges were also recruited. Five District Judges and one Immigration Judges.

As a qualitative study, the report’s authors indicate:

Qualitative research is designed to be exploratory and provides insight into the perceptions, feelings and behaviours of people. Findings are not statistically representative of the views of all consumers and providers of unbundled legal services, nor members of the judiciary. Although this report includes some indications of how typical views or experiences were across the sample or within subgroups, indicated through the use of words such as ‘most’, ‘many’ and `few’, this should be considered indicative among those interviewed. It does not give a measure of the prevalence of different views among the population of consumers and providers. The perceptions of participants make up a considerable proportion of the evidence in this study, and although such perceptions may not always be factually accurate, they represent the truth to those who relate them.

Within their sample of clients the views were generally positive on unbundling:

  • Unbundling reduced cost, for some clients sufficiently to be the difference between getting some access to justice and not.
  • It provided clients with an extra sense of control, some could take more responsibility this way for their case and act, sometimes, more quickly than busy lawyers.
  • Unbundled services were being requested by clients rather than being marketed by firms, or emerging in discussion with lawyers when clear that the client could not afford for representation (often either whilst they were represented and had to move away from full representation or whilst unrepresented when they had hit a significant complication they could not handle alone).
  • Clients generally felt that the division of labour, whilst not always explicit, was generally well understood by them. They also generally felt they had the confidence and skills to take matters on. Agreements were not always felt to be clear and there appears to have been some anxiety about unbundling being provided by unregulated providers from a couple of clients.
  • Client’s felt they got better outcomes than they would have done without unbundled support (if acting alone).

The providers they spoke to were generally positive about unbundling but also more anxious about the risks. Unbundling had emerged as a response to legal aid, changes in the small claims limit and a more competitive legal services market. It was generally offered on a fixed fee or pay-as-you-go basis, they said (although the clients tend to say they paid hourly). Lawyers were more anxious about the process, in particular:

  • they worried about working on the basis of limited information and with limited control over the matter as it developed;
  • they worried as to whether or clients would understand the limits of unbundling and their own limitations.

In general, amongst this group of respondents, neither SRA regulation nor insurers appeared to be inhibiting unbundling. Conversely, it was evident that some provider approaches were sensitive to risk, with unbundling being more prevalent in lower risk areas.  One provider is quoted as saying:

“I think it’s very easy to make an error, be negligent with regards to a case involving money, property, or whatever, whereas with regards to Children Act cases if you make a mistake you tend to be able to rectify it, and therefore the risk is a lot lower, the risk of being negligent and not being able to rectify it.”

There are some interesting other details in the report.  For instance the report says, from the consumer perspective, arrangements typically took one of the following three forms:

  • Where the provider acted as a legal ‘safety net’ in case anything was wrong. They provided some advice and support, though the consumers did most of the work and required small amounts of provider input.

  • Where the provider was used to add value. Here the consumer performed administrative tasks solely, but used the provider to impart their legal expertise throughout.

  • Where the provider acted as an advocate for the consumer at court hearings. The consumer typically helped with some of the preparatory work.

Similarly, providers who did offer unbundled services appeared to have approached this type of work in one of three main ways, the report says.

1 Some had committed to unbundling as a core element of their business model, and had developed one or more specific products, designed to cover a range of situations. These providers promoted such products quite heavily.

2 Others had also developed specific products, which were again advertised, but for a narrower range of matters, and covering a relatively small proportion of overall workloads.

3 A third, more low key approach, was to offer unbundling as an extra level of service, but on an ad hoc basis; here its availability was not always advertised.

A couple of points are worth emphasising here. One is that the consumers the researchers spoke to appeared to have come solely or mainly through route three. Further, firms were very clear that they needed to think more carefully about how to structure and embed unbundling within their business. Experience elsewhere, in the Californian courts for instance, suggests a range of approaches and infrastructure might be developed by providers keen to do a better job and to steal a competitive march. Put more crudely, unbundling appears primarily to be an ad hoc and experimental endeavour at the minute.

Another interesting point is that consumers had different motivations and expectations:

[One group of] Consumers often spoke about the “clout” a legal service provider offered in terms of their expertise, reputation and leverage to bring about a successful outcome; the provider’s involvement was seen as critical rather than peripheral to outcomes.

[Another] group of consumers were not only cost conscious, they were also aware of getting value for money from their provider. Many saw great benefits in the provider passing on their expertise or using the reputation of the firm in their correspondence, but felt that some of the work required to resolve matters did not necessarily need the input of a legally qualified professional. Consumers were therefore reluctant to pay for services which did not offer anything beyond their own capacity; they wanted providers to offer added value to resolve their matter. As such, consumers often used providers for input where they were not capable of effectively doing something themselves or to enhance or validate work that they had already prepared.

And, it is worth emphasising that providers were very sensitive to whether or not clients had sufficient skill and capacity to undertake parts of their problems. The researchers made a comment which seems to support and echo that, from the consumer’s perspective. The unbundlable client, may not be the typical client, but a relatively competent and prepared individual:

In many circumstances consumers had made a significant start to dealing with their matter by doing research, starting correspondence, or putting their case files and documentation in order before consulting the providers. These consumers appeared to be particularly engaged with the processes, often having researched the steps they would need to take to resolve problems some way in advance. To some extent this may have been a factor behind their willingness to take on some of the work with the legal services provider.

A final comment; as well as the qualitative nature of the research, one of the other limitations is worth emphasising. What this essentially tells us is that clients, and the firm providing bundled service, feel that unbundling is a beneficial service that extends access to justice. Both perspectives are valuable, but we should be wary of accepting them entirely at face value. The providers were clear that bundling with new they were feeling their way.  Clients rarely have the expertise or counterfactual experience to judge whether services in fact useful, for instance. There was much more to be learnt about unbundling.

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…to those getting email alterts from lawyerwatch. I have had an error posting ghost blogs, which I have put a stop to. Apologies for the inconvenience.

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Harvard graduates study: women who succeed

A very interesting study emerging from Harvard Law School has a raft of findings on gender, including the following which is based on following a number of Harvard Law School cohorts well into their careers (ten years plus):

  • Female respondents are less likely to be married than male respondents.
  • The percentage of male partners who are married far outpaces the percentage of women partners who are married.
  • The percentage of women partners who have never been married is significantly greater than the percentage of male partners who have never been married.
  • Twice as many women partners as men partners report having zero children.
  • Women respondents took significantly more actions, such as going part time, as a result of having a child as compared to men.
  • Women respondents report feeling significantly more work place consequences, including loss of seniority, as a result of having a child as compared to men.
  • Even with no children, women HLS graduates in the sample are just as likely as their male counterparts with two or more children to be in the full time work force
  • Less than half of female respondents with two or more children are still in the full time workforce
  • Women have spouses/partners that work, on average, more hours than the spouses/partners of men.
  • Women partners have spouses/partners that work, on average, more hours than the spouses/partners of non-partner men.

The report is here.

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It’s all in the Game: Immigration Lawyers vs the High Court?

I have on a few occasions blogged on the High Court (and indeed the now LCJ’s) exasperation, justified or not, with the conduct of some immigration solicitors.  There’s an interesting post on the latest episode on Colin Yeo’s blog.

According to Colin, Mr Justice Green opines in his judgment:

The facts that are set out below reflect what has become an all too familiar and depressing pattern in which legal representatives demonstrate a lack of care and concern for the substantive and procedural rules governing claims for judicial review. They suggest, in our view, a deliberate disregard for the professional duties that all legal representatives owe to the Court, and in the present case to the Tribunal.

The firm are reported as saying to Legal Futures:

We are aware of the referral by Mr Justice Green of a small number of immigration matters in which we were referred to the SRA for review.

Whilst it would be inappropriate for us to comment in detail at this stage whilst the SRA review is ongoing, we are confident that, in due course, once the same has been completed, we will be found to have acted appropriately and in accordance with our professional obligations at all times.

I want to move beyond this particular firm.  When I last wrote on this matter, I got quite a lot of comment from immigration lawyers suggesting the problem’s Mr Justice Green is now referring to were a problem within the immigration sphere and needed stamping on and those who, with varying degrees of clarity, regarded these kinds of tactics as justified given what they saw as a) the extreme peril their clients faced and b) the varied failings of government agents and organisations involved in such cases which similarly disregarded rule of law obligations.  In the words of a Baltimore street gang,* It’s all in the game, you feel me?

The issue Colin seems to be raising, aside from whether such tactics, were they to be proven, are unprofessional or not, is whether judges should report the matter publicly. The professional regulators almost always maintain a practice of not naming those they are investigating.  Judges calling out solicitors this way circumvents the usual protections. Equally, it is not uncommon for complainants to reveal that they have lodged complaints and that the SRA have indicated to them that they are investigating, making the privilege afforded to lawyers when investigated somewhat contingent.

But Colin’s point remains a decent one, should judges use their courtrooms as – he seems to be suggesting – a kind of bully pulpit?  Or is judgment (as I imagine they would say) a key opportunity to remind the profession of their obligations.  Certainly Mr Justice Green will have got the attention of many immigration practitioners.  One might argue that it would be more appropriate for the judge to write to the SRA, outline their concerns and make available the relevant information to allow the SRA to investigate and leave it to the SRA to decide whether and how to issue more profession wide warnings.  That would be a lot slower and much less likely, with the greatest respect to the SRA, to garner the profession’s attention; but it might be argued to be more proportionate.  Conversely, with justice meant to be transparent and this behaviour being dealt with in a courtroom, why not have the judges thoughts made public, with the usual avenues of accountability in place (appeal, complaints, etc.)?  They are clear matters of great importance to the health of the justice system and matters of public interest.

It is to be hoped that the SRA investigation is well resourced and swift so that if the firm of Solicitors has been poorly treated by the judge further information can become available quickly.  It’s a fairly folorn hope though.  There is also the intriguing point raised by the suggestion that government lawyers and immigration staff are just as bad or worse in their disregard of the key professional obligation to protect the rule of law and the administration of justice.  If it is a well founded allegation, do judges call these breaches out?  If not, why not?  Are they the kind of administrative breaches which judges see as lying beyond their concern? Whatever the merits of judges calling one set of problems out, the continuing issues in the sphere suggest broader concern’s that may need a wider approach than simply criticising firms that get reprimanded by the High Court, or the judges that do the reprimanding.


*Okay, apologies, I’ve just finished the Wire boxset

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Loyalty moments and online dispute resolution – a lesson about complaints?

There’s a couple of very interesting (and short) posts by Colin Rule, doyenne of online dispute resolution, on lessons eBay learnt when implementing their online dispute resolution systems (here and here).  The key lesson was that a better, more accessible, complaints system: a) led to more complaints; but b) increased the volume of business for eBay.  Another way of putting it is that it increased trust in eBay and did so in measurable ways.  A particularly interesting claim, not entirely surprising to students of Tom Tyler’s procedural justice theory, is that even those complainants who were unsuccessful were more likely to use eBay than they had previously.  Dealing quickly and (in a way that is perceived to be) fairly may extend beyond simply being damage limitation.  Rule puts it like this:

What that meant was that buyers who “won” their case increased their activity, but buyers who “lost” their case also increased their activity. Now it is true that the buyers who lost their case did increase their activity at a slower rate than the buyers who won their case, but most surprisingly, both of those buyers increased their activity more than buyers who never filed a dispute in the first place.

Lawyers may not get repeat clients often enough to get very excited about this, but they do get word of mouth referrals.  Capturing complaints at the very earliest opportunity and dealing with them fairly, may still be good business – as well as the right thing to do. And with more legal business being sought, handled, even transacted, online, the need for online dispute resolution with clients may become more pressing.

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Big Data and the Linguistics of Law

With the hue and cry about big data, artificial intelligence and law being accentuated by all the talk around Watson/Ross, I was interested to see this thoughtful, carefully carried out and documented piece of research into the qualities of brief writing before the US Supreme Court from US political scientist Adam Feldman.  It uses corpus based techniques to examine quantitatively the quality and sentiment of brief writing and its impact on judicial decisions.  It’s basic measure of quality is the extent to which the judges adopt phrases from the brief in their judgment, but also whether the party actually won the case. There are some interesting findings in support of the view that experienced lawyers do better.

Among the positive findings are:

  • “Increased attorney experience positively affects the amount of language the justices share with merits briefs” (they also win more cases)
  • positive brief sentiment positively affects the amount of language the justices’ share with briefs (though these elements are associated with losing more cases) suggesting, “that attorneys benefit from writing with a positive tone and from excluding negative and offensive language in briefs.”
  • “…the justices’ tend to share less language with more complexly written briefs…”
  • “Increased wordiness and passive verbs in briefs, both indicators of lower quality writ­ing, leads to less language shared between opinions and briefs.”
  • Increasing complexity as measured by reading age is beneficial but only, “until a post-high school grade level of around fourteen.”
  • Similarly, legal briefs should balance complexity (desirable up to a point) with readability.

The findings on more experienced attorneys is particularly interesting.  They do better in terms of the results they get and the extent to which the justices use their language, but there are, “no dramatic differences in the median values for any of the quality criteria between more and less experienced attorneys.”  Linguistically they are not much different to the inexperienced attorneys, although:

More experienced attorneys tend to write briefs that use more complex language. This is apparent from their higher readability and reading grade scores. Less experienced attorneys tend to write briefs that have more sentence complexity and as a consequence the justices may perceive their briefs as more rambling. More experienced attorneys write briefs with higher sentiment values, which may be a sign that they are attuned, with their additional experience, to the justices’ preferences towards such briefs.

…The overlap values indicate that the justices tend to adopt more language from briefs by more experienced attorneys when the quality levels of their briefs are the same as briefs from less experienced attorneys.

Of course, the study cannot explain why this happens: do experienced attorney’s pick better arguments; write more persuasively in ways not measured by the linguistic software; have clients with stronger cases; or, are they more trusted by the Supreme Court justices?

Adam Feldman has posted another paper on who wins in the Supreme Court here http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2643826  which I have not looked at yet.

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The fickle world of promotion

The Sutton Trust continues its run of interesting research on diversity in education and the professions with a new report on ‘private pay progression‘.  They introduce it by saying this:

Whilst the issue of access to the professions is relatively well understood, there is limited understanding of the impact of entrants’ backgrounds on success once in graduate employment.


The main findings that are that:

over a period of three years, private school alumni’s pay grew by 11% more than their state-educated peers (see Table 1).


This is supported by, “a study by the Social Market Foundation for the Sutton Trust has shown that, by the age of 42, a privately educated person will earn £193,700 more than a state educated person,” and, “Laurison and Friedman’s report on the ‘Class Ceiling’, which explains that “the upwardly mobile have, on average, considerably lower annual incomes (£8-14k) than higher-origin colleagues” even when they control for a range of different variables.”  In the Sutton Trust study:


Over half the pay difference can be explained by the variables controlled for in our research, such as type of higher education institution attended. However other factors also play an important role in graduate pay progression

They suggest:

A plausible explanation is that non-academic skills such as articulacy or assertiveness could play an important role in accessing high-status jobs and career progression once in employment.

And add that:

…while candidates from non-privileged backgrounds score highly in most non-academic skills, they disproportionately lack self-confidence and awareness.

What they mean by awareness is not immediately clear.  They go on:

differences in social capital [networks etc.] explained part of the pay disadvantage of the upwardly mobile.


There is the  usual suggestion that employers should better train their non-privileged employees to be more self-confident and ‘aware’ and an acknowledgement that in areas such as the the solicitors’ profession much of the progression in salary during these first three years is baked into the training contract.  The results may thus suggest that it is as much from more privileged backgrounds getting the better (in terms of salary ) training contracts as it is them being more assertive, articulate or having better networks.  And whilst the survey speaks intelligently to a concern that professional employers are as great at identifying (and now promoting) talent as they think they are even though this should be an fundamental  for human capital businesses, I can’t help imagining any managing partner reading the survey and then saying, well we want articulate, well networked , assertive individuals so what’s the problem?  (Yes, I know it’s implausible to imagine a managing partner reading the survey, but you get the point).

Of perhaps greater interest to that rather insensitive, kind of bottom line thinking is another finding from the survey:

graduates from less privileged backgrounds are marginally more likely to remain in high-status jobs, with 71% still in such employment three and half years later (compared to 65% for their more privileged peers) (Figure 1), although this difference is only marginally statistically significant.

Rougher, more loyal diamonds vs floppy haired fickle fellas*?  Well, we can see who is winning that fight so far.


  • Apologies for the excessive, steroptypical alliteration, but I had to work the title in somewhere.


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