Category Archives: Legal practice

How to improve the Law Society of England and Wales

IP Draughts congratulates Robert Bourns on his recent appointment as Chair of the new Main Board of the Law Society of England and Wales (LSEW). As a former President of LSEW, Robert is familiar with how the organisation currently works. IP Draughts hopes that Robert is sufficiently independent-minded, skilled and determined, despite his years of working within the organisation, to use his position to achieve real change in a body that badly needs it.

This appointment is part of a reorganisation of the governance structure of LSEW. In IP Draughts’ view, a reorganisation is long overdue. As chair of a specialist committee (several layers down in the organisational hierarchy), he has observed how LSEW has operated in recent years. He has the following recommendations for change:

  1. People. Appoint a chief executive and senior management that includes people who really understand the solicitors’ profession. Experience of other membership organisations has its place, but an insight into how solicitors work and think, both in private practice and in-house, is invaluable.
  2. People. Direct the senior management team to focus on two key areas: (1) creating a supportive but challenging, service-led environment for staff; and (2) understanding and delivering what the profession wants from LSEW, rather than what the LSEW thinks it should have.
  3. People. In relation to staff, identify the good people, and train and encourage them to focus on providing an excellent service; and identify the people who need to improve, and train and encourage them, or if they are not up to the challenge, sack them. Having and communicating a vision, and following it through consistently, which includes removing those who are not up to it, will improve staff morale in the longer term.
  4. People. In relation to members, identify the main segments of the profession and what each segment needs from LSEW. Use the specialist committees more: LSEW likes to say that they are at the heart of what the LSEW does, but sometimes it doesn’t feel that way from the committee side, when dealing with elected officials and LSEW employees. Improve the service offering. Use modern technology well in support of this objective. Ensure that the staff are open to new ways of interacting with members.

The Chair will have an important role in steering staff to achieve success in these areas. IP Draughts hopes he will spend time walking the corridors and getting to know people at all levels in the organisation, and not just the Board and the Council.

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Why the internet age needs traditional lawyers

Competition. Disaggregation. Legal engineering. Offshoring. Onshoring. Automation. Blockchain. Artificial intelligence. If you believe half of what the visionaries tell us, the legal profession is spiralling into a vortex from which it will be unable to escape. The values, attitudes, business models, and pricing of lawyers are from a bygone age, and won’t survive for another generation. We’re all doomed!

IP Draughts would like to offer an alternative vision, in which genuinely traditional lawyering (as distinct from the variety that has grown up over the last 30 years) thrives and is welcomed as a reliable anchor in an anarchic world.

If you want to find out about a subject, what do you do first? You Google it, perhaps on the mobile device on which you are likely to be reading this article.

Maybe you find an answer to your question. But how reliable is the source of the information? And does it answer your exact question, with all the nuances of your situation, or is it more general? In the case of answers to legal questions, is it even based on the law that applies in the place you are located? How do you filter the noise of an unregulated internet?

For some tasks, automation may smooth the way. You may have the right mindset for filling in online forms, without the mediation of a professional adviser. But many of us do not have that mindset, and the attention to detail that legal issues often require. Or we may be too busy to spend the time to become a self-taught expert.

Amid the chaos of the internet, where everyone has an opinion and is able to express it, and there are plenty of sharks trying to make a fast buck out of the gullible, how do you find information and assistance that you can rely on?

Some people will just go for the cheapest, quickest source of information, and hope for the best. In some societies, consumer protection laws may provide a safety net, but more often the individual takes the hit.

In this unregulated world, using a solicitor provides important protection for the client. Not everyone values this protection, and if you don’t, good luck to you. But if you do, then there is genuine protection in a legal profession that:

  • has high standards of professionalism
  • is trained to put the client’s interests first
  • is insured against the possibility of giving negligent advice
  • has mechanisms to sanction and, in extreme cases, expel members of the profession who don’t meet the required standards, and uses those mechanisms regularly

Combine these institutional protections with building up a trusting relationship with your favoured lawyer or law firm, and you have a recipe for success.

As for pricing, a few generations ago the English legal profession had tariffs for particular tasks, but abandoned these in response to client pressures and moved to a more transparent system based on hourly rates. If enough pressure comes in the opposite direction, we may move again to more of a tariff-based approach, just as private medical treatment includes standard charges for particular tasks, and a time-and-materials approach for others.

But don’t be deluded into thinking that this is going to mean that all legal tasks will be performed within a client’s budget. It is difficult to predict the progress of many legal matters, not least because the time spent often depends on factors outside the lawyer’s control, such as the behaviour of other parties. If the client wants their lawyers to take this risk, they should expect significantly higher charges to offset the risk, and not all firms will have the scale to take on this risk.

In practice, though clients claim to be price-sensitive, many clearly are not, or they would not “play safe” by instructing firms who (in effect) charge a premium for their brand name. Nobody got fired for choosing IBM, it is said. Getting value from their lawyers requires the client to do some hard work and really understand what they are buying.

 

 

 

 

 

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Thinking (and communicating) like a lawyer

Readers of a certain age will remember the film and TV series, the Paperchase. Set in a US law school, it tracks the lives of a bunch of law students and their teachers. The star of the show is Professor Kingsfield, a teacher of contract law, whose voice is heard on the introduction to the show saying:

You come in here with a skull full of mush, and, if you survive, you leave thinking like a lawyer.

The good lawyer will first learn how to think, and communicate, like a lawyer. The excellent lawyer, having learnt those skills, will learn when not to think and communicate like a lawyer.

In a different context, Picasso supposedly said:

Learn the rules like a pro, so you can break them like an artist.

Picasso first learnt to paint like this…

IP lawyers learn, if it is not already innate in them, the importance of rigorous accuracy in their professional communications. Errors, or even just looseness of language, are likely to be picked on by supervisors, opponents in litigation, and judges, and criticised. The ambitious, junior IP lawyer or patent attorney learns to make their documents fastidiously accurate.

…before he learnt to paint like this.

IP Draughts has long wondered whether this approach reflects the scientific training of many IP lawyers, or their competitiveness, or both. Or is it just a mysterious trait that has developed in the IP world, without any obvious explanation? IP Draughts would like to know whether the same approach is followed in other areas of law. He suspects, for example, that in the world of entertainment law, personality may count for more than a misplaced semi-colon.

Precision and accuracy may be important qualities, perhaps even dominating qualities, in IP protection and litigation. No-one wants their submissions to be torn apart by opponents or by a bad-tempered judge, in front of one’s clients.

IP Draughts has long thought that this is taken too far. Should a judge criticise a court bundle because of inaccurate pagination, or because a page went through a photocopier askew, leaving some text unreadable? Let’s assume the bundle is 90% right and it has taken 2 hours to get it to that level. It may take another 2 hours (or greater supervision by a more expensive lawyer) to check it so carefully as to ensure that the 10% of errors are removed. Is it a good use of expensive lawyers’ time (and client’s money) to double the scale of the exercise to make the bundle perfect, or should the judge “get a life” and live with the 10% imperfection; or if he needs a replacement page, to ask for it politely and with no hint of criticism?

Whatever the rights and wrongs, meticulous accuracy is a prized skill in the IP professions. For some, it infuses all their communications. They don’t know when to switch it off. Letters to non-lawyer clients read like submissions to the court, and are a big turn-off. Articles on their firm’s website read like an academic thesis.

In IP Draughts’ view, the first thing to think about when writing a letter, an article, a memorandum of advice, or a short reply to an email, is who is the intended reader? What are their expectations? How do they process information? Where on the scale of informal chat to PhD thesis do they want your communciation to be?

Of course, this is not always the only consideration. If you are writing a letter to the other side in litigation, you may also want to advance your client’s cause, influence the other side’s (or their client’s) behaviour, anticipate how a judge would view the style and tone of your letter if it is scrutinised in court, and so on. But for many communciations, the focus should be on the reader.

A small example illustrates the point. IP Draughts has recently been leading on the preparation of a note from the IP professions to government, on the subject of Brexit and IP law. The note is a short document (2-3 pages) that is intended to be read by non-specialists such as politicians and government officials; they will have to consider dozens of areas of commercial law and practice that may be affected by Brexit, and not just IP. Our note needs to be short, clear and quickly engage their attention. The IP professions have made other, more detailed submissions that are being considered by the UK Intellectual Property Office. This note serves a different purpose and has a different audience.

One of the points discussed in the note is the Unified Patent Convention. The note suggests that the UK should seek to participate in the UPC after Brexit, and to keep the court for life sciences that David Cameron, when Prime Minister, negotiated to be located in London.

In IP Draughts’ first draft of this note, he referred to this court being for “the life-science part of the central division of the court”. He was aware that the London court would cover more than just life sciences, but he thought this was a convenient shorthand for the non-specialist reader. During the many rounds of negotiation of the text of this note, he was asked to change this first to the “chemistry (including life sciences)” section. For a quiet life, IP Draughts went along with this form of words, even though it sounded rather lawyerly to him.

This form of words survived several drafts, but at a late stage, when the draft was almost finalised, he was asked to change this to “the section dealing inter alia with life sciences and chemistry”. The person making this request pointed out that, technically, the London court would be for “human necessities” which was wider than just life sciences and chemistry. Thankfully, he recognised that this phrase might not mean much to the intended reader, but he thought it was important to be accurate, and that it would be better to use the phrase that he had suggested.

IP Draughts tried, gently, to push back on this request, but met with firmness.

For a submission to a patent office or court, one could not fault the logic of the IP professionals who requested these changes. But for a short note to a civil servant or politician who knows very little about IP and may care even less, this level of nit-picking accuracy is, in IP Draughts’ view, not only unnecessary, it is positively disadvantageous as it reduces the readability of the note.

Most of the suggested changes to the note were beneficial, and IP Draughts is grateful to all the people who gave up their time to help improve it. The final document was a collective effort and, in IP Draughts’ view was clearly and concisely written. But he wishes he could have been firmer in insisting that questions of tone and style should be left to his judgment.

 

 

 

 

 

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Which is more important – experience or ability?

Everyone has to start somewhere. In entry-level jobs, the candidates tend to have limited experience, so an interviewer is inevitably focused more on ability, and potential, rather than their track record. Academic achievements sometimes get undue prominence, simply because there is nothing much else to go on.

The more senior the role, the greater and broader the expectations on the candidate. A senior associate in a law firm may be expected to have have several years’ experience of practising law, interacting with clients, managing projects, and so on. There is more data on which to assess whether the candidate is good at the technical aspects of the job, at getting on with clients and colleagues, at working hard, and at achieving the client’s objectives. Candidates for partnership need these skills but, depending on the firm, they may also need an ability to run and build a business, work with fellow owners, manage budgets, hire and fire, and so on.

It doesn’t stop there. IP Draughts has recently applied, unsuccessfully, for two part-time roles chairing organisations in the legal field. He thought he had the ability to do both jobs well – he wouldn’t have applied otherwise – and that he had relevant experience. But it seems that his CV lacked certain elements that were considered important. Sometimes, these elements are not fully brought out in the job specification and only become clear when the recruitment panel considers the candidates who have applied.

For one role, the feedback after the first interview mentioned various desirable traits. On several, he thought he had a strong or reasonable case. The one on which he probably had least experience, and which had only briefly been discussed at interview, was “holding the Chief Executive to account”. It is true that his various chairing roles haven’t included that responsibility, though he does have experience of managing people. Whether this means he couldn’t have performed that role well is, of course, a different question.

For another role, the recruitment exercise was re-run without interviewing the candidates who had applied the first time. The stated reason was that the candidate pool wasn’t sufficiently diverse to enable the recruitment panel to make a choice. This sounds, of course, like a polite way of saying that they didn’t like any of the candidates.

But taking it at face value, what does it mean? Are white, middle-aged men no longer suitable candidates? Having gone through compulsory diversity training at the Law Society, IP Draughts is aware that diversity comes in many forms. If he had known that this was going to be an issue, he could have laid it on thick about how his parents left school at 15 and 16, how he was the first person in his family to go to university, etc. But this wasn’t one of the stated criteria when he applied. As a good lawyer, he answers the questions that are asked, and isn’t so good at anticipating and answering the questions that are not asked.

IP Draughts’ message for anyone applying for a job (including our current vacancy for a trainee) is that you just have to give it your best shot, and hope that the job advert is an accurate reflection of the selection criteria. Beyond that, it is out of your hands. We all experience rejection, and we just have to keep plugging away.

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