Soft skills in a hard market

The study was triggered by a number of concerns including unmet consumer demand, ie consumers not seeking to purchase legal services when they have legal needs, complexity of the regulatory framework, regulatory rules that dampen competition, but also concerns over service standards and low levels of customer empowerment. Its interim report, published in July, concluded it is predominantly a lack of information that is currently restricting competition in the sector. The CMA is engaging with professional and regulatory bodies, including the Bar Council and Bar Standards Board, to find ways to improve transparency of price and service quality in the legal market.

Market snapshot

In 2011, statistics published by the Law Society showed that total turnover in the legal sector had fallen to £25.4bn. Law Society figures for 2015 showed turnover of £25.7bn (of which £1.3bn was NHS clinical negligence work and £16.8bn was business-related cases). Growth areas between 2014 and 2015 were found to be arbitration and ADR (+44%), commercial/corporate, consumer and residential property, whilst crime (-9.4%) and landlord and tenant (-12.4%) showed a decline.

New competitors and trends

Chartered legal executives can deliver the same range of legal activities as barristers and solicitors, with the ‘potential to dramatically re-shape the legal services landscape in the long term’, according to the Legal Services Commission (LSC) Annual Report 2014-15. New market entrants include the Institute of Chartered Accountants in England and Wales, now able to regulate and licence its members to provide probate services.

Meanwhile, the civil market is showing signs of moving towards a fixed fee industry. The Solicitors Regulation Authority (SRA) report in the Legal Services Consumer Panel tracker briefing 1 (23 May 2014) shows that 46% of all transactional work is conducted on a fixed fee basis (versus 38% in 2012). In family, 45% of work is done for a fixed fee, compared to 55% in immigration.

Online services are also evolving. The LSC Annual Report cited a March 2015 research study into divorce online which, in general, was perceived by customers to be working well. The SRA revealed that one in three of those charged with minor road traffic offences now make their plea online. Further moves are afoot to simplify processes: eg the proposed, largely ‘lawyerless’ online court process put forward in Lord Justice Briggs’ civil justice review. The Legal Services Consumer Panel advocates ‘self-lawyering’ by 2020.

Growing direct access

Dissatisfaction with the current provision of legal services was also noted in the SRA’s Risk Outlook 2016/17, with 70% (albeit up from 65% in 2011) only ‘satisfied’ with the choice of provider available to them. Signs are that direct access will suddenly boom once there is wider public awareness. The Bar Council’s Direct Access Portal, for example, has 12,000 hits per month. Search statistics from a sample of more than 9,000 individual searches made between 1 January and 1 August this year revealed the top five most common search terms were: civil; property; employment; EU; and professional negligence. How many convert to instructions is unknown, but our own experience was five enquiries in the first week of putting up a few members’ profiles.

1MCB has carried out a number of research projects in conjunction with ESCP Business School (see below). With regard to direct access, we found that 80% of interviewees were unaware that they could seek the advice of a barrister directly. Once made aware of this possibility, 75% said they would prefer to do so. Corporate use of direct access has increased by almost 300% during the previous five years, according to Hardwicke’s Direct Access Report 2010, with corporate clients’ confidence in instructing barristers directly increasing from 40% in 2008 to 87% in 2010.

Market perception

The SRA’s Changing Legal Service Market report reveals that:

• 80% of lawyers think they’re delivering ‘above average’ service, but only 40% of clients say they’re receiving it;
• 81% of lawyers believe they provide regular updates on progress throughout the legal matter, but only 61% of clients agree;
• 95% of lawyers think they explain the charging system clearly at the outset, but only 70% of clients agree;
• 94% of lawyers think they fully appreciate their clients’ needs and expectations when taking a case on, 69% of clients agree;
• 63% of consumers were satisfied with value for money in 2014, up by 6% from 2013;
• satisfaction with quality, service and professionalism is static since 2011; and
• lawyer perceptions of levels of service often exceed the level the client perceives they have experienced.

Choice factors in barrister selection

‘Understanding what drives consumer decision-making is critical for both providers and regulators,’ says the Legal Services Consumer Panel in its 2016 tracker survey: how customers are choosing their legal services. It found that reputation persists as the most important factor when choosing a legal service provider, followed by price and specialism (see graph below). This is backed up by the 1MCB/ESCP research, which found that:

• faced with an employment law issue, 80% were most likely to ask a friend (80%) for advice when looking for a barrister; and
• after word of mouth, the most utilised means to find legal representation is search engines (80%).

With increased competition for work, and the opening up of direct access, it therefore becomes much more important to create and maintain strong relationships. Our research revealed how much emphasis is placed on softer skills, as well as legal experience and knowledge. In employment law, we found that solicitors delegate around 15% of cases to barristers for the following reasons:

1. time and cost-effectiveness (even with in-house experience to be able to do the work themselves);
2. specialist knowledge required;
3. complexity of the case.

Barristers are chosen through:

1. word of mouth: colleagues, court performance, lectures/ seminars, clerks; or
2. research: Chambers and Partners, Legal 500, legal magazines.

The six qualities solicitors take into account when choosing a barrister were found to be, in order of importance:

1. communication;
2. user friendliness;
3. personal interaction;
4. imaginativeness;
5. pricing; and
6. long standing reputation and experience.

The top three indicators of a successful barrister, according to solicitors, were:

1. interactive with client;
2. organised and proactive; and
3. number of cases – and results.

Time to think about unique selling points

Perhaps when it was all about who was the most senior and experienced, it was easier to pitch barristers for certain work. But the legal market is beginning to think more like the commercial sector, choosing when and whom to instruct for a wider variety of reasons. Positioning in the marketplace is key and should be reflected throughout chambers culture and promotional material. A couple of our own USPs, for example:

• The ability to offer advice in several practice areas – beneficial, for example, in child cruelty cases where the law and procedures are very complicated in terms of disclosure and re-use of evidence between the criminal and family proceedings.
• An understanding of cultural issues involved in cases given our multi-cultural (and multi-lingual) nature as a set.

Making soft skills a tangible reality

Whilst clerks may complain about barristers not attending enough events or phoning solicitors, and barristers complain about clerks not getting enough of the ‘right type’ of work in for them, the reality is that everyone needs to think about ‘sales’, ‘relations’ and ‘service’ all the time. Task yourself and your clerks to diarise soft skills activity, to include for example:

• Attend x events.
• Make x contacts, and x follow ups.
• Update Twitter, Linked In, profile pages.
• Get feedback from customers (both to check service levels but also as a chance to talk to your customer).
• Phone solicitors/clients with outcome of cases promptly–take the chance to find out how things are going.
• Alert solicitors/clients to changes that may affect them or their clients – newsletters, emails, personal prompts.
• Also set up individual practice meetings with senior clerks; consider training in relationship management, negotiations and networking; and reward those that bring in new business.

There are opportunities for those who can adapt to the increased emphasis on soft skills. Solicitors have busy lives and do not want to deal with unhappy clients or chase for invoices or outcomes from barristers. Getting your service levels in shape before direct access accelerates yet further should pay dividends. When dealing directly with the public, procedures and relations will be even more vital in avoiding complaints and gaining referrals.

Contributor Julie Clarke, practice manager, 1MCB Chambers

Criminal legal aid

The legal aid cuts hit hard in crime when first introduced, but the more experienced can, at the moment, make a good (albeit busy) living. Good cases are being referred to us from other chambers unable to cover them, but chatter in some robing rooms is more pessimistic.

According to the MoJ/LAA Legal aid statistics for October to December 2015, expenditure on crime lower reduced more than workloads. Expenditure is down 14% (due to the 8.75% fees reduction in March 2014), whereas the number of cases reduced by c 50,000 per quarter in two years to c 310,000 per quarter (260/310 are lower crime cases) – as such a 7% and 6% reduction respectively in lower and higher crime workload.

Very high cost cases (VHCC) reduced by 35% to £6.3m vs Q4 2014 due to the change in rates paid and a reduction in the proportion classified as VHCC (the threshold of 40 days increased to 60 days in April 2013).

Civil legal aid

Civil legal aid is, in general, 12% down and family is down 13%, according to the MoJ/LAA Legal aid statistics (October to December 2015).

• Family: increases in the last decade include domestic violence conviction rates (from 59% in 2005 to 73% in 2012) and parental child abduction cases dealt with by the Foreign Office, up by 88% (abductions to non-Hague countries stood at 149 in 2012, mostly Pakistan).
• Employment: the introduction of tribunal fees for individuals had a significant impact. There was a peak in claims just before the fee came into effect on 29 July 2013, and then a huge drop of 650%. If you allow for the peak boost, the drop is still 400%. As a £830m market, employment is still significant. The biggest volume of cases continue to be in the areas of: 1. working time; 2. unauthorised deductions; 3. unfair dismissal; 4. breach of contract; 5. equal pay; and 6. sex discrimination.
• Landlord & tenant: From October to December 2015, there were 36,601 landlord possession claims in county courts, 4% down vs Q4 2015 (62% involving a social landlord, fallen from 83% in 1999). 25% were accelerated claims, risen from 7% in 1999. There were 28,476 orders for possession (down 6% vs Q4 2014) and 18,644 warrants for possession, which is pretty flat. The annual total claims in 2015 were 153,694, down 7% on 2014. The number of orders and warrants also declined by 7% and 1% respectively. In addition, there were 42,728 repossessions by county court bailiffs (up 2%) which is the highest figure since year 2000. The Guardian reported that bailiffs in England and Wales evicted over 11,000 families in the first three months of 2015 – 8% higher than previous year and 51% higher than same period five years ago – representing a six-year high.
• Immigration: Continues to stay relatively steady, although the impact of the changes to appeal rights is that the number of appeals has declined. However, this has led to a corresponding increase in the number of judicial review claims in immigration matters. We wait to see the impact of Brexit.