Take a risk by being positive

Risk management is a concept which does not sit easily with the legal profession. But lawyers are soon to have a rude awakening on this front when Lord Irvine's reforms begin to take shape.

The idea is that, since they make money out of cases, they should be willing to fork out money to support their professional assessments of cases worth pursuing. If they make a mistake, too bad. They must bear the costs as other businesses have to. Logically, the Government does have a point. However, in arriving at its conclusions, it seems to have forgotten the cautious approach to date of the insurers to the legal market.

Only a handful of companies deal with "after the event" legal insurance. Of these, the experience has mainly been of conditional fees in the area of personal injury – which is arguably the easiest area to ascertain risk as it is largely predictable.

However, even here the research is relatively sparse. In other areas the lack of research and the unpredictability of the courts ensures that the insurance industry is wary of this area. If it is such a great idea, why have they shied away?

The reason is that it is extremely difficult to calculate risk in the legal field. Even legal expenses insurance has only achieved moderate success for the insurers. If the insurers are concerned about risk in the legal field, it does not bode well for the Government's plans.

There does not seem to have been any major consultations with the industry before the Government launched its plans. Only now does it seem that reality is sinking in. And how is the Law Society performing in all this? Its negativity is likely to spur the Government on, given that the ministers can say that lawyers are concerned that their gravy train is soon to come to an end.

Better to be positively constructive, ask the right questions and let the Government trip itself up.