Is it surprising that we are so little loved?

According to Professor Gillian Hadfield1 we all live in a world that is flooded with law. But what of the everyday life that falls short of crisis, that sets the path on which a crisis may occur or may be averted? We live in an everyday world that is, in fact, flooded with law how our children are supposed to be treated in school, what lenders are supposed to tell us when they sell us a mortgage, when our employers can and cannot change our conditions of work or pay, what is fair play in consumer markets, and so on. Every time we sign a document, click a box that says I Agree, enter a retail shop, or get on a local bus we navigate a world that is defined by legal obligations and rights and, importantly, one that assumes that the ordinary citizen who moves in this world is doing so as a functioning, choosing, legal agent. Should that citizen end up in a crisis that requires more active use or response to the legal systemfiling or responding to a lawsuit or enforcement actionshe will inevitably be treated as if she functioned with this kind of legal agency on the path that brought her to this point: bound by the contracts she agreed to or the risks she was given notice of or the legal consequences of the actions she took in caring for her children.2 Surely lawyers, with their training, experience and understanding of legal issues, should be overwhelmed with demand for their help in navigating a safe route through our daily existence? Yet all the evidence suggests otherwise. The Legal Services Board has recently published an analysis by Professor Pascoe Pleasence and Dr Nigel J Balmer of an extensive and far reaching survey of nearly 10,000 small businesses3 into their use of legal services and responses to legal problems.4 These same authors have previously conducted similar extensive research into the consumer legal market5 and, in their view, there are striking similarities between the current way in which the consumer and the small businesses legal markets operate.

Kirtland Professor of Law and Professor of Economics, University of Southern California Fordham Urban Law Journal, Volume 37, Issue 1 2009, pages 131-132 3 comprising of a demographic mix of single person businesses, micro businesses with fewer than 10 employees and small businesses with fewer than 50 employees 4 In Need of Advice? Findings of a Small Business Legal Needs Benchmarking Survey, Pleasence and Balmer, LSB https://research.legalservicesboard.org.uk/wp-content/media/In-Need-of-Advice-report.pdf 5 English and Welsh Civil and Social Justice Panel Survey: Wave 1, Pleasence, Balmer et al, 2011, Legal Services Commission
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P a g e |1 Simon Goldhill Consultancy 2013

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One major problem is that, despite Professor Hadfields views, there are many instances where issues that have a legal flavour are simply not recognised as such. So where individuals and small businesses have a problem where legal advice could be of benefit, they often look elsewhere for help. Theres not much that individual lawyers can do to influence this; this may be an area where so-called Public Legal Education can, in due course, have an effect, but thats a topic for a different article.6 What is highly revealing, however, is the response of both individuals and small businesses once, in each case roughly a third of the time, they recognise that they are facing a legal problem. The percentages turning to lawyers (solicitors or barristers) for any help or advice when faced with a legal problem are strikingly small. Problem resolution strategies Small businesses No action Dealt with entirely by self Informal help from colleagues & friends Formal independent help From lawyers 15.9% From non-lawyers 13.1% 9.0% 51.9% 10.1% 29.0% 6.5% 22.8%

Individuals 10.4% 45.7% 14.5% 29.3%

Small businesses
No action 13.10% 9% 15.90% 51.90% Legal help 10.10% Help from non-lawyers 6.50% 14.50% Self help 22.80% Informal help

Individuals
No action 10.40% Self help Informal help 45.70% Legal help Non-legal help

Watch this space!

P a g e |2 Simon Goldhill Consultancy 2013

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By contrast, the proportion of small businesses and individuals who look for no help at all is staggeringly high. And there is a real and significant cost. The Department of Justice economists have estimated the cost to individuals as over 13.5bn over a 3 year period. For small businesses the cost could be much higher as much as 100bn a year. What an opportunity! And what should law firms be doing to take advantage of it? For many, the biggest challenge will be to get beyond the passive mentality of just being there when clients decide they need them. There is a wealth of other research7 which demonstrates quite clearly that people (and businesses) tend only turn to lawyers for event-drive transactions (rare at best, if not merely once or twice a lifetime). Lawyers only tend to get used when people dont think that they can deal with an issue or transaction without them. Thats an awfully difficult service to try to sell. Come and see me when you decide to move house/change your Will again/when one of your parents dies in 10 years time doesnt lend itself to a client-centric marketing and sales strategy. This lack of a strong distribution channel is one significant reason why many firms business models appear vulnerable. I know from my own days as a commercial litigator how difficult it is to build a practice on the back of a series of unfortunate oneoffs and reluctant purchases. While I was confident that I could bring in the new work to meet my targets (and I did), it was simply impossible to demonstrate where it would be coming from. Developing sustainable business is difficult to achieve on a mixture of hope and opportunism! So back to that question I posed above. One answer is a move away from the current largely reactive engagement with the public. Firms need to get properly and pro-actively engaged with their existing and potential client base. This goes much further than just sending out legal newsletters and news of staff charity fund-raising days. Im talking here about a real shift in mind-set, adopting the sort of customer service values that operate successfully in the commercial world outside of the legal market to provide things that people actually find of value. This may be anathema to those who equate commercial values with an inevitable lack of the standards that only a professional can provide. Im afraid that they are wrong. The reason that Amazon and Tesco have become successful is by looking after their customers, not ripping them off. In any event, the liberalisation of the market means that, whatever they think, what is successful in the commercial world will be introduced into the legal market. So amongst the ideas that might work, how about providing, for free (yes, really!), the sort of information that enables individuals and businesses to understand the flood of law that surrounds them and that there are ways to access advice and assistance that suit them, without all of the actual and perceived risks that put people off approaching lawyers. And break down some of the

See, for instance the Baseline Survey to Assess the Impact of Legal Services Reform, Ministry of Justice, March 2010 and YouGov/SixthSense, Legal Services, November 2010

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barriers make yourself accessible via the internet, demystify the language you use to communicate, remove the ticking clock. There are even ways to put the client in control of the extent of the legal input they require and pay for. And lets use technology not to replace people, but to assist. When you see the newly elected President of the Birmingham Law Society take pride in the fact that he does not have a computer, you have to wonder why he feels this is such a good thing for his clients. Is this really his vision for the future, or simply a hankering to keep past methods that make him feel comfortable? Those of us who are looking towards the future of the legal market are starting to see a rather different picture emerging8. There will be greater focus on the needs of the client and the potential client rather than operating in a way that suits the service provider. The move towards innovation in business models, distribution strategies and technology will help to bridge the substantial gap between law firms and the client base. Will we ever be loved? That may be stretching it a bit. But it will be a good start if we can become better understood, more respected and perhaps most importantly for those in practice - used more frequently.

Simon Goldhill 31 May 2013

See, for instance, Baker Tillys Legal Innovation Report 2013, June 2013 and their discussion of the start of unbundling legal services

P a g e |4 Simon Goldhill Consultancy 2013

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