A right to be understood?

Following up on yesterday’s post where I got to trot out a minor interest in readability scores, I saw this on twitter (courtesy of Prof Ed Cape) about whether rights to remain silent are understood.  You can read it here on the Open Society Foundation’s website. Here’s an excerpt, but the whole thing is not long and well worth a read.

A study in the United States evaluating police officers’ recitations of arrest rights revealed that the level of comprehension required to understand the rights varied from a 4th grade reading level to a college reading level. However, according to the National Adult Literacy Survey, 70% of inmates have the equivalent of a 6th grade reading level or lower. In other words, the recitation of rights upon arrest may be beyond the comprehension of the average arrestee.

In Hong Kong, a survey of customs officers who combat crime at the border revealed that 55% did not understand the right to remain silent as a protection against self-incrimination. This is a problem, because an officer who does not fully understand the right to remain silent cannot adequately communicate that right to arrestees.

Another study in the United States published by American Psychologistrevealed that 31% of defendants believed that remaining silent in the face of police questioning could be used as incriminating evidence at trial. This misunderstanding can compel individuals to offer information, including incriminating information, for fear that remaining silent will make them seem more culpable, thus completely defeating the purpose of the right to remain silent.

The current method of reciting to arrestees their right to remain silent does not take into account the varying levels of comprehension that different people may have. People who are uneducated, mentally-ill, or intellectually disabled are more likely to come into contact with the justice system; many people are arrested when they are under the influence of drugs or alcohol, all factors which inhibit their ability to understand the rights read by police.

In Canada, the “Operating Mind Test” is used to determine whether arrestees have sufficient cognitive capacity to understand their rights. However, this test looks at whether the warnings provided are comprehensible in theory, rather than whether the arrestee actually understood them. In the 1994 case ofWhittle, the Candian Supreme Court determined that the warnings provided were comprehensible even though the defendant was suffering from schizophrenia and auditory hallucinations. This standard does not take into account the physiological effects of a mental disorder that may impede the ability to understand one’s rights. The Whittle decision has made it more likely that people who do not understand their rights will be found guilty.

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Warning signs: Who’s to blame when commoditised legal services go wrong?

The recent Court of Appeal decision in Proctor v Raleys [2015] EWCA Civ 400 raises the interesting question as to whether commoditisation of legal services, which may lead to cheaper more accessible justice for consumers, should be held to the same professional standards as lawyers providing services in a more traditional manner.  Put like that, the answer seems to be a plain yes, though I am tempted to complicate the case by suggesting that, as long as consumers understand that ‘commoditised’ services are a riskier proposition (if indeed they are a riskier proposition) , then a market for legal services might very sensibly allow a lower standard of service to be provided.  There are signs in the research on wills and online divorce that consumers have something of a grasp of this, but I would not say it was a good grasp (yet).

In this case a personal injury claimant had a relatively straightforward claim for compensation which he pursued with a firm (Raley’s) who tended to use questionnaires and standard form letters to communicate with their clients.  These letters were long and gave the Court of Appeal (Tomlinson LJ gave the judgment) concerns about being misleading in that they failed to describe ‘service claims’ in a way that was clear.

For whatever reason, the claimant did not make a claim for ‘services’ (the cost of having to get someone to do his own gardening etc.) when it seems he would likely have succeeded.  There were a number of warning signs (especially in his medical evidence) that he might be able to make such a claim but because the claimant did not tick the relevant box saying he wanted to make a services claim Raley’s assumed he did not want to make that claim.  Subsequently, having accepted an offer settling the claim without making a service claim (and having definitely turned down another element of the claim he might have made which would have delayed his settelemnt) he decided to sue Raley’s for negligence.

The case provides something of a lesson in how the evolution of legal case management systems needs to be adaptive to the humans it works with.  Raley’s clearly did try and adapt (they seem to have picked up the potential claim but were not able to say they spoke to the claimant about the point either in person or on the phone). They could point to three long standard letters where the potential to make the claim was explained  to the claimant but that was not enough.

It is worth observing that not only were these letters pretty long, but using the Flesch–Kincaid readability score (which I did on the third letter) the letter did not fall into the category easily readable by a 13-15 year old using this test.  According to the Wikipedia page on this test, insurance policies in the US are required to be written to something like this standard.  Also the letter got a similar readability score to Moby Dick (although it was of course shorter).  I don’t know about you, dear reader, but I’ve put Moby Dick down at Chapter One more than once.

Because the judge at first instance did not accept that the letters were misleading, it was submitted by Counsel for Raleys, “that it was not open to the judge to conclude that the solicitors should have done more to ensure that Mr Procter [the claimant] actually understood the advice he was receiving.”

It is worth observing also that (according to the judge at first instance):

…The Claimant had stated in evidence that his education was limited. Even if the Defendants were not aware of this they could have assumed that most miners were not highly educated. …it was clear from the documents …that the Defendants knew there were risks in accepting information from the clients at face value. …There is some indication from the Defendants records that they were regularly experiencing clients who had not notified them of a potential service initially, but changing their minds at a later stage on receipt of further information.

That evidence suggested the firm had changed its procedures to speak to clients in person or on the telephone when dealing with offers because, “more clients made claims for services if they actually spoke to the lawyer directly about the issue either in person or on the telephone.”  Given a series of warning signs that the client might have such a claim, the guts of Tomlinson LJ ‘s judgment is as follows:

In my judgment the situation here cried out for a short discussion with the client, preferably face to face, but if necessary over the telephone, in order to ensure that the client understood the circumstances in which a claim for [services] could be made. … [As calls were had with the client this could easily have been discussed]

I would add that, on the assumption that the client was responsible for payment of the solicitors’ fees, taking up the point in the course of these telephone conversations would have been likely to increase the cost to the client by only a trifling amount, if anything. At the hearing I was under the impression that Mr Procter had himself been responsible for Raleys’ fixed fees, and that Raleys would receive a fee in respect of advice concerning a services claim only in the event of a successful claim under that head. Closer perusal of the documents subsequent to the hearing leads me to wonder whether Mr Procter in fact had any potential liability for Raleys’ fees, as the documents seem to suggest that the relevant fees were paid to Raleys by IRISC. For the avoidance of doubt however I reject the notion that a solicitor should feel inhibited from ensuring that his client has understood advice given to him by the consideration that so ensuring might generate a further fee payable by the client.

Whilst it is clear that Tomlinson LJ is suggesting that the solicitors cannot resist the idea that a client cannot be advised in person (or on the telephone) on an economic basis, and that they must so advise the client, in person or on the phone where the facts demand it, he is also doing so in circumstances where he can see that Raleys’ could readily adapt.  It seems to me the judges may have been influenced also by the uncertainty over who had conduct of the file, although they do not say so explicitly.  The judges also were plainly influenced by the series of warning signs that the Claimant probably did have a services claim and had not explicitly declined the opportunity to pursue it.  Tomlinson LJ returns to the commoditisation point:

…Mr Pooles drew to our attention the difficulties posed for solicitors in modern conditions, where financial constraints may require them to “commoditise” their advice to potential claimants. …The circumstances in which a claim for services could be made were not complex but as I have already pointed out not entirely straightforward. These letters in my view signally failed to give a clear exposition [on the services claim] …Furthermore, whatever may be the practical and economic constraints in conducting face to face meetings or telephone discussions with clients in claims handling of this nature, it is apparent that in this case there were at least two opportunities to give, without significant additional cost, a straightforward exposition …It is to the solicitors’ credit that their system did generate internal reference to these very matters. To impose liability for the failure to follow up the issues flagged in this way does not, to my mind, involve the imposition of an unrealistic standard. The solicitors were dealing with a client who could fairly be regarded as unsophisticated in the relevant field. The written advice given to him was unclear, and there were clear indications that it may not have been understood. It is not asking much of a solicitor in such circumstances to make sure that his client understands the opportunity apparently being passed up.

To my mind, this passage is important.  What is being shown here is a system that is not, for a certain class of clients, effective; that Raley’s knew they had a problem; and, that they failed to deal with it adequately.  An attempt to pass the system’s inadequacy back onto the client failed and responsibility remained with the professional service provider.  I think that is a good thing.  Of course, there is a potential for injustice if the claimant had understood he was turning down a service claim, but that is a risk which Raley’s can adopt to – apparently relatively cheaply- by having a better system.  The interesting question will be whether other cases provide a better contrast between a rough and ready system which it would genuinely not be economic to run the other way. Tomlinson’s judgment seems to me to leave that question open, whilst leaning towards the view that lawyers’ will not easily push responability for errors back onto clients.  Of course, such claims will not generally be brought, as rough and ready systems are likely to apply to minor cases, but it’s not impossible.

One further point is worth noting.  Lawyers are not always notoriously brilliant communicators with lay clients. Traditional legal service providers might get an easier ride if they have had a meeting with a client and given them a muddled explanation of a services claim which a client then fails to pursue.  In such a case, the commoditisers might be subject to higher standards: the judge is forcing on them something of a requirement to develop systems that clients genuinely understand.  Whilst I do not think the courts should close their minds to the argument that rougher justice may be necessary to make some types of case economic, they probably should resist for now attempts to shift the blame for negligence claims onto clients not filling in convoluted forms properly.


Gordon Exall has written an interesting piece on his excellent blog on the commoditisation argument which I think is important context.He says this:

The “economics” of the situation makes for interesting reading.

According to the Mellor Hargreave’s Blog

“The fee income of Raleys as a result of handling these claims under the compensation scheme, which also included a scheme for respiratory disease illness, rose between 1999 and 2003 from £2.5 million to £15.7 million and £11.8 million for 2004. Mr Firth and Mr Barber the two senior equity partners took respectively as their share of the profit for the years 2003, 2004 and 2005 a total of £9.9 million and £7.2 million.”

…Far be it for me to ponder on the economics of running a practice. However it appears likely that, for a tiny smidgeon, of that amount it would have been possible to hire at least one (and possibly several) fully qualified lawyers whose sole task was to explain settlements  and offers personally to clients and ensure that the client understood what they could claim for. If I have misunderstood this I am sure that there is an accountant or solicitor out there who can put me right.

I too perused the Mellor Hargreaves blog and it says this:

Raleys handled in excess of 12,000 claims under the scheme. It is understood that in the region of 63% of the miners qualified to claim for services, yet this defendant only claimed for 20% of those. Notwithstanding the fact they submitted to the court this claim would not have been successful, their own statistics suggest that 97.2% of those claims submitted, were in fact successful.

If they are right, and I must emphasise it is an if, then the question raised is whether Raley’s undersettled a raft of cases and whether that undersettlement was caused by the design of their system?

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What makes tax lawyers morally limited?

I find the psychology of professional ethics endlessly fascinating. Take this piece by Elaine Doyle, Jane Frecknall Hughes and Barbara Summers (2013) An Empirical Analysis of the Ethical Reasoning of Tax Practitioners, J Bus Ethics (2013) 114:325–339 DOI 10.1007/s10551-012-1347-x (open access here), which I thank Iain Campbell for mentioning to me.  The researchers used Rest’s original Defining Issues Test (and a tax specific version) to compare the moral reasoning of Irish tax practitioners and a control group of non-tax specialists.

They find that:

(i) tax practitioners generally reason at lower levels in tax contexts than in social scenarios (i.e. they can be moral, just not in tax situations);

(ii) that the professions do not appear to attract people who reason at lower levels (i.e. tax does not, on the evidence here, attract bad apples); and

(iii) that practitioners appear to be affected by training/socialization in their professional context (in particular tax practitioners in private practice demonstrate lower levels of moral reasoning than practitioners working for the Irish revenue service).

 The research is based on Rest’s well known six stages of moral reasoning:

1. The morality of obedience: do what you are told

2. The morality of instrumental egoism and simple exchange: let’s make a deal

3. The morality of interpersonal concordance: be considerate, nice and kind: you’ll make friends

4. The morality of law and duty to the social order: everyone in society is obligated to and protected by the law

5. The morality of consensus-building procedures: you are obligated by the arrangements that are agreed to by due process procedures

6. The morality of non-arbitrary social cooperation: morality is defined by how rational and impartial people would ideally organize cooperation.

The higher up the scale, the higher the level of moral reasoning that is applied by the subject of the test.  On a quick read of the paper the authors seem particularly concerned with accountants (who we are told to expect may already be prone to, “a lower level of moral reasoning than would be expected, given their age and education” based on other research).  Similarly, “auditors and accounting students… [appear to] apply a more principled level of reasoning to resolve social dilemmas than to resolve moral dilemmas in accounting or auditing.”  However, their study is on tax practitioners and this its seems may include lawyers, accountants and possibly others.

…The research instrument was administered to 384 tax practitioners and 306 non-specialists in Ireland in 2009 using a combination of random, convenience, and snowball sampling techniques.

What did they find?

The fact that tax practitioners do not reason significantly differently from non-specialists in the social context sug­gests that individuals whose reasoning is less principled than the norm (as measured by the non-specialist control group) are not self-selecting into the tax profession. …Once the context changed to tax, however, differences in moral reasoning were evident, with tax practitioners utilizing significantly lower level moral reasoning than non-specialists who remained con­sistent in their reasoning across both contexts. This dif­ference was substantial in size, with the level of principled moral reasoning being 34 % higher in non-specialists.

An interesting question is whether we (or they) should care.  Are tax practitioners more prone to a a kind of lazy positivism: a client friendly convenient roolz is roolz approach may fit with the architecture of tax law:

This may be driven by the weight tax practitioners give to legal rules in the tax context, of which non-specialists are unaware, but further analysis is needed before any such conclusions could be reached.

The interesting thing is that Revenue practitioners, who are operating in the same legal architecture after all, are rather different:

… Revenue practitioners show a pattern of reasoning that is very similar to non-specialists and their reasoning is not at a significantly different level in either the social or tax contexts. On the basis that Revenue practitioners fulfill a public service role with an emphasis on collecting the maximum tax revenue in accordance with legislation, in order to fund government spending and support society as a whole, this finding is, perhaps, not surprising. The fact that Revenue practitioners reason dif­ferently from private sector practitioners, however, indi­cates that tax knowledge and experience are not what is driving the difference between reasoning in the social and tax contexts for practitioners, as Revenue practitioners also possess tax knowledge and years of experience working in tax. Equally, moving from a social context to a work-related context is not driving the difference, as tax is also the working domain for Revenue practitioners. The results suggest that the differences observed in the reasoning of tax practitioners in the tax domain arise only in a private practice environment. While the results do not identify the reasons for the differences in moral reasoning in a private tax practice domain, the differences found may be due to a socialization effect in private sector tax practice.

A more pithy way of putting this might be that private practitioners in tax become morally inhibited because it pays or because their ethical rules demand that they prioritise the client’s interests over others (that’s not the case in this country but it may be the case in Ireland).  The fascinating question posed by the study (but not answered) is what if anything might be done to redress the problem (if indeed, it is a problem).  To boil it down unfairly: do tax practitioners need training to be more principled or should they be more tightly proscribed by rules?

Finally, if one likes a joke at accountants and tax practitioners’ expense (we’re only human after all), then there’s this little nugget on which I will conclude.  You’ll remember accountants generally scored poorly on moral reasoning in work contexts, well tax practitioners it seems are worse:

……the scores from this study are most comparable with those of average senior high stu­dents and are well below the level of adults in general and college students. These scores are also much lower than the average P scores of accountants found in other studies …

If the study is right, it seems its not the law, but the cultures and rules of private practice that might be dumbing down tax practitioners of Ireland.  Couldn’t be happening here, could it?



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Legal Risk Study

Readers who have not seen this already might be interested in the executive report from a study I am leading on Legal Risk: Definition, Management, and Ethics. It looks at legal risk practices in large corporates here in the UK.  It can be found on SSRN and UCL’s webpages.

The report raises key questions about the role of in-house lawyers in balancing commercial and professional considerations; the readiness of in-house lawyers for the complex leadership and management tasks involved in legal risk management; and the extent to which professional ethics are embedded within those teams.

• There was no shared sense of the correct approach to legal risk.

• The in-housers we spoke to were not always clear or confident about their approach, or the best approach, to legal risk management

• There is a clear divide between those who take a, ‘I know it when I see it’ approach to legal risk and those who deliberately applied systems, foresight, thematic and strategic thinking around legal risk.

• Those interviewees with the most developed systems seemed most likely to see cultural dimensions to legal risk, with some emphasising the need to be authentically committed to the spirit as well as the letter of the law as part of a business commitment to compliance, legality and business ethics.

• There is a need for in-house teams to reflect on the extent to which processes of legal risk engage rigorously in assessment, mitigation, communication, monitoring and overall evaluation of legal risk management. Many of our interviewees did not have well developed approaches to each of these elements of a risk strategy.

• Some aspects of risk management may lead to overconfidence and approaches to mitigation which shift risk from the company to third parties, with the potential to raise questions about the appropriateness of this in certain circumstances.

• There is the potential for risk management to change risk appetite by altering perceptions of, and appetites for, risk. In general, risk management increased the appetite for risk because it increased confidence that risk was both understood and manageable. This opens up for debate the question: is risk management as robust as such confidence suggests?

• Objectivity and independence are necessary for risk assessment to be accurate and useful to the business but are in tension with the pressures on in-house lawyers to be commercial team players. These tensions are both overt and implicit. There are overt pressures and implicit biases at work which may sometimes undermine objectivity.

• Appetite for legal risk involves accepting, even welcoming, tolerance for conduct which may be, or even may be likely to be, unlawful. This is sometimes in tension with the professional obligation to promote the rule of law and the guidance to solicitors that they must treat the public interest in the administration of justice as definitive of conflicts between professional obligations.

• Such tensions also impact on corporate interests: there are relatively recent, serious conduct risk examples of allegations involving lawyers in and/or instructed by Standard Chartered Bank, the News of the World, Barclays, The Times newspaper, BNP Paribas and General Motors.

• The extent and nature of these public interest facing obligations are neither understood, nor well-articulated in professional practice generally, nor in-house practice in particular.

A significantly more detailed academic piece is in train.

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The SDT and the Chamber of Secrets

harry potter

Neither Steven, nor Birmingham Law Library

This is a Guest Post from Steven Vaughan and Julian Webb.  Steven begins…

I am doing some work on the concept of lawyer independence. I’d read the LSA, and the relevant SRA principles and guidance, and searched the SRA website to see where Principle 3 was mentioned. Principle 3 says that a solicitor must, “not allow [his/her] independence to be compromised.”

I’d then gone to look for case law, found an interesting case from the High Court on referral fees (Reed v George Marriott [2009] EWHC 1183 (Admin)) and had the Farooqi case helpfully pointed out to me by Richard Moorhead. He blogged on it here.

I then went to go search rulings by the Solicitors Disciplinary Tribunal. I’d done this for two reasons. First, the vast majority of cases involving alleged, or actual, solicitor misconduct never get appealed (and so aren’t reported in the higher courts). Second, I had seen in the SRA’s recent report on litigator’s duties a reference to a 2004 SDT ruling which mentioned independence (In the matter of Paul Francis Simms, Solicitors Disciplinary Tribunal, 2 Feburary 2004) and wondered if any other rulings had similar dicta.

The SDT website (http://www.solicitorstribunal.org.uk) allows you to search judgements, or you can browse them all in one long list. If you want to search, you can do this by: (i) Case Reference; (ii) Full Name; (iii) Allegation Type (‘Breaches’; ‘Delays’; ‘Account Rules’ etc); (iv) Outcome (‘Fines’; ‘Strike Off’ etc); or (v) Date. What you cannot do is search by keyword. So, I cannot find all the judgements that consider, say, Principle 3, or the term “duty to the court”.

I emailed the SDT to ask for their help. I won’t put their reply below, as I hadn’t said I was going to publish it, but, in effect, they said this was a resources issue. I can see that. In part.

I posted my incredulity about this onto Twitter. Julian Webb was the first to respond. I’ll let him take over here…

…I can’t say I was surprised by Steven’s experience. It echoed my own from a couple of years ago when I started wondering about the uses the SDT has made of professional disrepute in its decisions, and the range of penalties imposed – a topic which, in the absence of more substantial (ie funded) research assistance, I decided to park in the too difficult box, largely because of the limits of search functionality on the website.

To be sure, what we have now is a quantum advance from the days when SDT decisions were only available on request, and, of course, the SDT is not alone. The Register of Disciplinary Action (RODA) in my new home of Victoria is similarly geared to the simplest of category-driven consumer searches. But it is hard to see why text-based and Boolean search functionality, like keyword searching, should be an issue; indeed the Scottish SSDT website already provides it.

Does it matter? It may be objected that this is a real minority concern (I did joke to Steven that we might be the only two people on the planet to consider this a significant problem; I was wrong; in the end there was six of us in the conversation…) and that the SDT is not there to facilitate research. But the issue actually deserves a better response than that, because there is a more fundamental point to be made about the relationship between accessibility of decisions (and in the digital age that must surely imply a certain threshold of functionality), public trust, accountability and education. Indeed, the Tribunal’s own publications policy makes the point for us:

Publishing Judgments is important in ensuring that the Tribunal’s processes are transparent. The content of Judgments assists in Informing and educating users of legal services and the profession. Publication enables the Tribunal’s stakeholders to be reassured that the Tribunal’s decision-making powers are being exercised proportionately and consistently, and that the Tribunal is accountable for its decisions.

These are sentiments with which we concur, but does the SDT really believe its site has the functionality to enable anyone to make assessments of ‘proportionality and consistency’ at anything but a very basic level of comparison?  In the context of increasing concerns about the accountability of professionals, and the historic evidence from a number of jurisdictions of under-enforcement of disciplinary breaches, the point should not be considered purely academic. Now back to Steven for our conclusion….

…In its 2013/2014 Annual Report, the SDT notes a 2013 running cost of £2.1m. Just under £900,000 of this is spent on employment costs. The Legal Services Act 2007 requires that the full cost of funding the SDT comes from a levy on the profession via the annual practising certificate fee. The SDT’s 2013/2014 Annual Report sets out that the proportion of total practising fee income paid to the SDT was 2% in 2013-2014. In 2013, only £9,600 was spent by the SDT on its website. That’s 0.005% of the SDT’s overal running cost. Wouldn’t it be better to spend say, a little less money on employment costs (or AGMs or Training Days or SDT Members’ fees) and a little more on making the website fit for purpose and allowing the law on solicitors’ discipline and punishment to be better known, and more open to proper evaluation?

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Not robots, but cyborgs?

Mark Gould has written a very (very) interesting blog on the human bit of complex systems. His post is on what keeps (inefficient) law firms alive.  It’s well worth reading.

The bit that caught my eye was this which is taken from Richard Cook’s work on comnplex systems:

12) Human practitioners are the adaptable element of complex systems.

Practitioners and first line management actively adapt the system to maximize production and minimize accidents.


17) People continuously create safety.

Failure free operations are the result of activities of people who work to keep the system within the boundaries of tolerable performance. These activities are, for the most part, part of normal operations and superficially straightforward. But because system operations are never trouble free, human practitioner adaptations to changing conditions actually create safety from moment to moment. These adaptations often amount to just the selection of a well-rehearsed routine from a store of available responses; sometimes, however, the adaptations are novel combinations or de novo creations of new approaches.

It struck me as very relevant to the debate about automation in law and the extent to which we can and should move towards systems and automation in law.  The basic lesson I draw is: systems are (or can be) great, but they need human insight and engagement to keep them healthy.

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Online divorce research: fitter, happier, more productive?

The LSCP have published some interesting research into the online delivery of divorce services, comparing online and face to face services for the first time, at least in this country.

“The objectives of this research were to provide insight into the consumer experience of divorce and to seek to understand whether this differs by type of channel e.g. face to face services vs. online services.” The intention also was to understand potential regulatory risks as regards the tow models.

Clients of the two services were surveyed at periodic intervals during the handling of their case and at the end of the case.  The aim was to get more reliable and episodic data rather than simply relying on one survey at the end of the case where customer perceptions may be influenced by outcomes.  Just over 180 clients were interviewed or surveyed.

As the researchers say, “sample sizes are small.”  But, “the research allows [one might say “may allow”] some comparisons between the different groups in terms of their experience of the service.”  What kinds of things did they find?

The chief earner in online divorces, “was more likely to be in a higher managerial position” than a user of face to face services, suggesting there may be some greater inhibition of more regular members of the public using online services.  Conversely, “the value of the estate for people using a face to face service was twice that of online services” suggesting more complex disputes were handled face to face.  Divorces handled online appeared to be generally more amicable (they may have been more amicable to start with or being online may have kept them more amicable, though the report suggests they started off as more amicable online) and less likely to involved domestic violence (although a third of online divorces were reported as having involved domestic violence).  We are not told whether these differences are significant.  They may be simply be random patterns in small samples.

We are told there is, “a high degree of self-selection with consumers making rational choices about choosing the online route.”  The rational choice argument has picked up some press so it is worth dwelling on what the researchers mean here.   Self-selection means that the researchers are limited in the comparisons that can legitimately make been online and face to face clients.  The implication is that the nature of the cases are different (online cases seem to be more amicable and less complicated) and we might not be able to read very much into a comparison of consumer experiences as a result.    The rational choice argument needs some qualification: what the survey shows is that some (perhaps most) clients think of their choices based on some rational criteria.  I think my divorce is less complicated and amicable and I feel reasonably confident I can do it online so I choose to do it on line.  This kind of rationality judgment is a fairly limited assessment of the quality of those choices.  It does not tell us that the consumer assessment of their own situation is accurate (a divorce perceived as simple may in fact be complex) or that they make the best choice of service for their problems (it is possible, for instance, that (some) heated divorces may be better dealt with online).

So whilst online divorces were “reported to be significantly cheaper” this may be (the researchers observe but do not model this statistically) because, “the complexity and time required on the case, are also likely to be relevant factors here”. Those using a face to face provider found costs were higher than they expected about twice as often as (41%) than online (19%).  If these figures are representative; client care, cost prediction and management still, it seems, has some way to go in traditional legal provision but also -interestingly – online even given greater fixed pricing.  Whether it is better online depends in part as to whether one expects more or less predictability when cases are less complex.

Similarly, one has to bear in mind the different needs and expectations of the two sets of consumers when we hear their evaluation of the service.

“Almost 9 in 10 online petitioners said they would broadly get any future divorce via an online provider. Further, the ‘customer effort’ scores were much lower among online users.

“…There are good levels of satisfaction across all providers (79% for face to face providers and 83% for online providers) and no fundamental issues to address.

“It is clear that online users are nearly three times as likely to recommend their online provider when compared to users of a typical high street law firm.”

It’s a big looking difference, and heartening for those who believe significant (but not all) legal advice delivery can be managed online, but we really need a stronger basis of comparison.

The most important finding is really this:

“Overall from the consumer experience of the process, the research did not find any evidence of any regulatory risks arising from the delivery of services online. While there is room for service improvement in both methods of delivery, there is no evidence to suggest that petitioners initially chose the ‘wrong’ channel and therefore changed midway through the process.”

This finding needs some qualification.  There is a gentle hint in the words, “from the consumer experience of the process” that the finding is a limited one, but it perhaps merits a bit more spelling out.  We know that consumer satisfaction with legal services delivery is generally (and this seems to be true whatever model you are looking at) very high.  We also know that where consumer satisfaction is compared with a more technical or expert assessment of quality (or risk) then there will be a significant body of consumers (I’m thinking roughly in terms of about 20% but it could be higher or lower) who will be satisfied with their case handling even though they have, on an expert assessment, received help which is flawed, less than competent or worse.  This research provides no assessment of that potential problem.  It is to be contrasted with, for example, the work done on wills by IFF for the Legal Services Board and others when reservation of will writing was on the agenda.  That too had small samples but a better assessment of risk.

That said, as long as it is not held out as a thorough risk assessment, the LSCP is to be applauded for conducting research in this important area.  Such small samples and limited methods are not a basis for sound policy, but they are an inevitable result of meagre research budgets and a longstanding culture within the legal profession that they know how the world works and reserchers cannot help them.  It at least provide some illumination on what clients think of online legal services in the key area of family law.  The work also suggests, but no more than suggests, that there is considerable potential for cheaper (and so more accessible) online services to work well.

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