Selection of representative. How not to make a bad job worse.

Selection of representative. How not to make a bad job worse.

Specialisation:  the buzz word in current legal marketing. But anyone can dub themselves a specialist and expertise is acquired, not awarded. Without doubt, there are proficient people out there, but there are also many who aren’t and their misplaced confidence and incompetence, as they practise on the hoof, can cost their clients a fortune. It’s unfortunately sometimes the case that lawyers fail to accept the limits of their abilities and eagerly accept instructions in areas where they have only a superficial knowledge.

In the new world of compensation, there’s just no room for legal refugees from other branches of the profession; ex-conveyancers or probate clerks who’ve lost their work to the high street brand names like AA and Co-op, to try their hand in areas unfamiliar to them, using the client as a learning curve.

An inexperienced lawyer simply makes a bad job worse. In the forthcoming claims landscape after the 2013 reforms have arrived, that’s an option no-one can afford. It will be more vital than ever to get it absolutely right first time.

Over the past quarter century in which we’ve been looking after the two wheeled road user, we’ve inherited more than enough supposed lost causes from other solicitors who have advised their clients that a particular case has no reasonable prospects of success, or simply given up.

Many of these have proved salvageable. Like the motorcyclist advised by a ‘specialist firm’ that his claim lacked reasonable prospects. Some time later, with an informed and experienced approach he’s £280,000 to the good and now my daughter’s Godfather. Or the permanently crippled cyclist whose solicitors abandoned her claim without obtaining a full copy of all the Police records. Now also a six-figure sum in front. Or the national legal expense insurance firm which discarded a dental negligence case because they couldn’t understand the medical evidence.

I could go on. The point is that the prospect of getting a second chance is about to become even more remote, if not impossible. The most important decision to make at the outset is choice of solicitor.

We’re all familiar with the concept of Polluter Pays when some awful environmental disaster strikes. Well, in English civil law, no longer. The Polluted at best will have to pay towards cleaning up the mess created by the wrongdoer and at worst will be priced out of any effective remedy at all.

When legal aid was abolished for personal injury claims the ministry of justice presented the legal profession with an alternative called conditional fee agreements (cfa) with after the event legal expense insurance (ate). These were intended to permit the wronged to purse redress against the wrongdoers without having to stake the ranch on the outcome. If you won, fine: damages and costs paid. Award ring fenced. 

If you lost, well, that’s life. It would not cost the claimant because the solicitor was on a cfa (no win no fee) and the ate picked up the successful opponent’s legal fees.

The successful claimant was entitled to recover, as part of the legal costs, two important elements. One was an uplift on the lawyers’ fees (called a success fee) and the other was the ate insurance premium.

Why? The success fee uplift gave the lawyers a fighting fund so they could run more challenging cases. Such as those where the victim had maybe been knocked back by an incompetent first representative. The insurance premium which removed the risk of financial ruin was recoverable because in many modest cases the premium could have wiped out a fair chunk if not all of the claimants awards so rendering the whole stressful process nonsensical.

From April 2013 the wronged, the victim, the polluted, will be unable to recover either a success fee from the wrongdoer’s insurers or the ate premium. Instead, those costs will have to come out of the damages pot. Result: uneconomic to pursue many claims, the victim injured due to another’s negligence, is uncompensated.

Start off with a representative who’s not 100{9b4a2c8832b2482ca7eb937f6bfa363e1f3f7cb05e1b42927da41c9eadde8c32} up to speed with the job, who bottles half way and there’s not going to be any chance of picking up the pieces for a second bite. How so?

It’s all down to the cost of insuring against losing. No-one of average means can afford to pay the successful opponent’s legal costs, at least not if they want to keep their roof. If an incompetent solicitor cannot demonstrate to the ate insurer that a case has reasonable prospects, then that insurer has the right to pull the rug to save itself being exposed to the adverse costs incurred through running a hopeless case.

So game over. Or is it? If the victim then finds a second solicitor, more experienced, knowledgeable, proficient, the case could be resurrected. But any insurer asked to underwrite the prospects of success will hike the premium to reflect the increased risk identified by a former insurer having rejected or withdrawn from supporting the case.

And the premium’s no longer recoverable from the wrongdoer. Similarly, the second solicitor being asked to pick the bones out of an incompetent’s muddling may seek a higher success fee to cover his risk of working for nothing.

So the chances of a perfectly viable compensation claim being rendered uneconomic increase. That’s on top of the message sent to the opponent insurance company which will all too readily understand the claimant’s plight. Justice denied.

You only get one chance. Make an informed choice. Insist on credentials, references, testimonials, track record. Identify a passion for and understanding of the cause. Experience is not gained, but is often claimed, overnight.