If you casually scan the internet looking for articles on conditional fee arrangements (CFAs) or the latest pronouncement on Callery v Gray, as I often do, you will find a whole noticeboard devoted entirely to the subject of 'Bloody Claims Direct Adverts'. Over the last few years, how many claimant personal injury (PI) lawyers can honestly say that they have not uttered that phrase at least once? Honestly? I thought so.
It has not been the easiest of times for practitioners in this area of law. A combination of rule changes, market saturation by claims companies and an escalation in general bad press has not only shaken up the way in which practices market and handle this work, but has also caused many PI lawyers to radically evaluate the way in which they view themselves.
It is interesting to note that, despite the thousands of column inches devoted to PI over the last couple of years, in no exposé of the claims culture, or Watchdog report of shoddy practices, is there any mention at all of the impact on the PI practitioners themselves and of the fundamental changes in procedure and thinking.
My role as a specialist in PI and clinical negligence recruitment throughout this period has given me access to the views of practitioners on how their role has changed and how they perceive their function as lawyers. During this time I have learnt many things, and surprisingly among those are that, a) most lawyers do not enter PI work to get filthy, stinking rich (in fact, you can probably count the filthy, stinking rich ones on the fingers of an obscene gesture), and b) the majority of the PI lawyers you encounter have more than a passing interest in the welfare of their clients. Shocking stuff – and not only unlikely to grace the pages of The Sun, but also worth bearing in mind whenever the society-threatening rise in the 'compensation culture' is discussed.
It is now clear that the rise of the claims companies, most notably Claims Direct, which made a very direct and easy-to-digest appeal to the public, had an enormous impact on the average solicitors' practice, many of which still felt that the act of fixing a plaque to the outside wall was enough to start a queue forming.
The bold – and frankly somewhat 'American' – advertising that has become the forte of many of these companies was once described to me by a very senior practitioner as being “unfair”. Goodness, it was even on television!
|If Claims Direct, Direct Claims or Claims R Us have had any long-term effect, it is ironically in making for more aware and more astute PI lawyers|
Fair or not, the impact was felt very deeply. Not only because it required a radical rethink with regard to sources of work (at one stage it seemed as though it would be a case of join them or give up), but also because it made many re-evaluate their work as practitioners. They were no longer the experts in the eyes of the public. Here was an actor in a nice suit with a backdrop of falling ladders. A clinical negligence panel member told me that the worst moment of his professional career was when one of his clients told him they had gone to Claims Direct on a separate PI matter. “But am I not handling your clinical negligence claim well?” he asked. “Yes,” replied the client, “but Claims Direct are the PI specialists.”
For a long time, many PI practitioners questioned whether they wished to remain in a sector of the law where, for an increasing number of practices, client care seemed to be a poor second to keeping the referral agency happy, and basic human freedoms such as the choice of medical expert were taken away. For what seemed like an eternity, the claims companies had a virtual monopoly on access to PI victims and the future seemed to be a warehouse full of paralegals. However, as the wheels started to come off the claims company bus, with some suffering at the hands of the same tabloid machine that had elevated them to their lofty status, the law firm hit back.
I first caught a glimpse of this at the height of Claims Direct's powers, when visiting a provincial PI practice. Occasionally I am asked to talk to partners, practice managers or whoever about their practices and ways of improving matters. On this occasion I was fully expecting a slick, fast-track team, attending solely to the needs of the referer. Instead, I was told that it had made an active decision to be taken off the Claims Direct panel, and this at a time when firms were falling over themselves to be included. The team had decided, commendably, that it had not entered PI work to lose control of the way in which it handled cases. It had always had a good local reputation, but had done nothing to enhance that, and so fought back with a good and well-prepared campaign of advertising, backed with committed and enthusiastic lawyers and underpinned with a well-thought-out business plan. Could this possibly stem the tide of the man in the nice suit and the falling ladders? It tried and succeeded, and now so many others have taken this route.
Led by the ever-resourceful Kerry Underwood, who was happy to take head-on the spectre of advertising, law firms have begun to take back control of the source of PI work. Many firms now encompass sophisticated marketing plans, go out to potential clients through all mediums and liaise with referral agencies on more even terms, if at all. Law firms have even taken to advertising directly in the tabloid press, a process that has been so successful for one firm that it has now appeared in the legal press advertising for other firms to join a newly-formed panel to share its success. The wheel has turned full circle.
The increase in claims coming through legal expenses insurers in recent times has meant that many lawyers, while forgoing the worry of where the work will come from, have the same difficulty of control. Many lawyers feel that the client is once again not the injured person, but the referrer. It is a difficult relationship at times, but one that practitioners are slowly coming to terms with. Just for once, time has been kind to the PI lawyer.
So where do we stand now? PI lawyers have certainly learned to love themselves again. After a tumultuous couple of years, there is now a certain stability among practitioners. Those who veer towards fast-track, high-volume claims seem to have established a better-organised and more tailored approach. The balance of power between the claims referer and the PI practitioner seems, well… more balanced. Lawyers wishing to have more control of their destinies have been, marketing either locally or nationally to well-targeted potential clients. If Claims Direct, Direct Claims or Claims R Us have had any long-term effect, it is ironically in making for more aware and more astute PI lawyers when it comes to their view of themselves within society. They are now much more likely to see themselves as more than just lawyers.
Uncertainty still exists on a number of fronts, but there is a certain air of being over the worst. I talk to lawyers happy in their dealings with referral agencies as well as these who are now much more rounded businesspeople. PI work has not been, as feared, taken away from the lawyers. I suppose it never was.
The clinical negligence panel member escaped to Australia. I have learnt not to worry so much about the sanity or future of PI lawyers, although I do occasionally surf the internet. I would recommend www.cfa.org, the website of the Contact Flooring Association, for light relief.
Keith Miles is a PI and clinical negligence specialist at recruitment consultancy Graham Gill