HOW DO ‘BEST LAWYERS’SOLICITORS’,AND ‘BARRISTERS’ RELATE TO MY CASE?
56. Individuals often wonder if there are different types of lawyers involved in their case and what these types are. This question may be uncomfortable to ask, but it is important to understand the roles and responsibilities of each.
THE SOLICITOR
57. In brief, a personal injury solicitor operates within a law firm or partnership. Solicitors are lawyers who have fulfilled the qualifications and training requirements set by the Law Society. Further information on these requirements can be found on the website.
WHAT DOES THE SOLICITOR DO?
58. Generally speaking, the solicitor is tasked with constructing and molding your claim. This process typically begins with a meeting where you may be asked to complete a detailed questionnaire. The solicitor will explain their terms of business, gather information about the accident, and collect factual and expert evidence to support your case.
HOW DOES A SOLICITOR ATTRACT/OBTAIN WORKS?
59. Traditionally, solicitors have attracted work through word-of-mouth recommendations and by establishing a local presence, such as having an office on the High Street. In recent times, however, some larger firms offering personal injury services have obtained work through referral agreements with other businesses. For example, they may pay a fee to an insurance broker or claims company in exchange for them referring injured individuals to their firm (commonly known as a ‘referral fee’). Additionally, trade unions may refer their injured members to solicitors who have successfully tendered for such cases. Furthermore, some companies advertise for injured individuals to contact them directly or employ tactics like approaching people in shopping centers to sign them up for their services.
60. These companies, often referred to as ‘claims companies’, heavily advertise their services on television, radio, and the internet, as well as in newspapers. They refer individuals who reach out to them to specific solicitors with whom they have a commercial agreement, typically in exchange for a fee. However, it is worth noting that the government plans to eliminate these “referral fees” and implement other significant changes to the funding of injury claims starting from April 2023. We will update our website accordingly to ensure that you are kept well-informed.
There are other, often smaller, more traditional solicitor firms where a select group of individuals specializes in personal injury litigation. These individuals typically receive their cases through traditional recommendations, local presence, or due to their high level of expertise in specific fields, such as occupational diseases or pain syndromes. While it may not have been feasible or desirable for them to pay for referrals, there is no reason to believe that solicitors in smaller firms are any less capable of providing excellent representation.
62. In larger firms, solicitors have access to a collective pool of knowledge that can be shared and utilized effectively. However, it is equally possible for an expert in a smaller firm to allocate more time and attention to your claim compared to what may be feasible in a larger firm, where each solicitor may be burdened with a substantial caseload or the responsibility of overseeing junior staff rather than focusing solely on their own cases.
63. It is important to keep in mind that many firms that represent injured individuals proudly advertise themselves as specialists in personal injury litigation.
64. Considering that you have already endured an injury, it is crucial that you feel at ease with the manner in which your claim is being handled. Therefore, without being excessively critical, assess whether you are being treated as a valued client by considering the following factors:
(a) Who is managing your claim – an experienced and trained lawyer? (For more information, refer to the later section.)
(b) Does your solicitor respond promptly to your calls, emails, or letters?
(c) Does your solicitor address your concerns in a sensible manner?
(d) Is your case progressing as expected, and if not, have you been provided with reasons for any delays?
(e) Have you received any interim payment, and if not, what is the reasoning behind it? (See section 19 for further details.)
(f) Have you been referred to a medical expert specializing in the type of injury you have incurred? (See section 13 for more information.)
65. If answering these questions raises concerns, it is imperative that you communicate these issues with your solicitor so that they can be appropriately addressed. If your concerns are not addressed satisfactorily, you should consider exploring other options (see section 6).
THE PEOPLE YOU MAY ENCOUNTER IN THE SOLICITOR’S OFFICE
66. Firms of solicitors also employ individuals with various qualifications who can still offer valuable services (at a reduced wage cost to the firm). The typical makeup of a solicitors firm may consist of the following professionals representing an injured person:
(a) Equity Partner: A solicitor who possesses a partial ownership (‘the equity’ or value) of the firm, usually in conjunction with others, and receives a portion of the firm’s annual profits.
(b) Salaried Partner: A solicitor (or occasionally a legal executive) who is bestowed with the esteemed title of ‘partner’ but does not have ownership in the firm. Consequently, they receive a salary.
(c) Associate Solicitor: An experienced solicitor who typically aspires to become a partner in the future.
(d) Consultant: Generally, an experienced solicitor or legal executive who provides specialized expertise and advice.
(e) Solicitor: A lawyer who is qualified in accordance with the standards and requirements set by the Law Society (refer to the website link for further details).
(f) Assistant Solicitor: A fully qualified solicitor with relatively less experience.
(g) Trainee Solicitor: An apprentice solicitor undergoing practical training and learning the ropes of the profession.
(h) Legal Executive: A lawyer who is qualified in accordance with the standards and requirements established by the Chartered Institute of Legal Executives (refer to the website link for more information). They can undertake all tasks that a solicitor can perform under the supervision of a solicitor.
(i) Litigation Executive: An individual without legal qualifications, but possessing substantial experience and knowledge in the field.
(j) Paralegal: Often similar to a litigation executive, undertaking tasks frequently associated with legal professionals.
DO THE SAME SOLICITORS ACT FOR INJURED INDIVIDUALS AND INSURERS?
In recent years, an increasing number of solicitor firms have specialized in representing either injured individuals or defendants (i.e., insurers), but not both. This specialization has led to a growing sense of division and conflict between the two sides.
The same trend has unfortunately extended to expert witnesses, who increasingly provide evidence exclusively for one side or the other, despite their primary duty being to the Court itself (refer to section 13).
THE ‘BARRISTER’ – ALSO REFERRED TO AS ‘COUNSEL’
Similar to solicitors, barristers are legal professionals with a long and fascinating history (see the link to ‘Middle Temple’ on the website). Barristers continue to possess a certain mystique, partly due to their distinctive courtroom attire, which includes a traditional horsehair wig and a flowing black gown.
DIFFERENT TERMS FOR DIFFERENT BARRISTERS
There exist only two levels of barristers. The majority, around 90%, are known as “just” barristers or “junior counsel” within the legal profession. The remaining 10% are referred to as “senior counsel,” also known as “Queen’s Counsel” (QC). Appointment as a QC signifies recognition of excellence and seniority in the profession. As a general guideline, QCs in personal injury work are appointed after approximately 25 years of practice.
QCs are known by various names, including “silks” (due to their silk gowns) and “leading counsel.” The term “leading counsel” reflects situations where a silk and a junior barrister may be instructed together, with the silk taking the lead role. This typically occurs in cases involving numerous complex legal issues, extensive documentation, or high-value claims, such as catastrophic brain injury cases involving lifelong care claims worth millions of pounds.
Despite their considerable skill and experience, many barristers opt not to pursue QC designation for several reasons. One reason is the scarcity of cases that proceed to trial, making it challenging to gather the necessary judge’s references for the application. Another reason is the limited availability of QC-level work locally.
Within the profession, more experienced junior barristers are sometimes referred to as “senior juniors.” Consequently, the vast majority of personal injury cases are handled by barristers who are not QCs.
QUALIFYING TO BECOME A BARRISTER
74. To become a barrister, one must satisfy the qualifications and training requirements set by the Bar Standards Board. For more information, please refer to the link provided on the website.
75. Traditionally, barristers have been recognized as the advocates among lawyers, specifically those who present cases in court. In the context of injury claims, multiple hearings usually take place during the progression of a case, making the involvement of a barrister crucial due to the significant impact these issues have on the outcome of the claim.
76. Solicitors often seek the expertise of barristers to assess the necessary evidence required to establish different elements of a claim. They also engage in conferences with clients to discuss the strengths and weaknesses of such evidence and explore strategies to address any gaps.
77. The majority of barristers are self-employed and operate from offices known as “a barrister’s chambers” or “set or chambers.” They pool their administrative expenses. Solicitors typically provide barristers with work through the form of “instructions to counsel,” as discussed further below.
THE ‘CAB RANK’ RULE
78. Barristers generally adhere to the “cab-rank rule.” This rule obliges them to accept any work that meets the following conditions, similar to a taxi waiting for a passenger on a taxi rank, regardless of attractiveness:
(a) The work falls within their area of expertise, and they are available;
(b) The work corresponds to their experience and seniority;
(c) Their fees will be paid regardless of the case’s outcome.
It’s important to note that this rule does not apply in cases where the barrister is only paid if their client wins. These types of cases, known as conditional fee agreements (CFAs) or “no win-no fee” cases, only require legal fees to be paid upon winning. Most personal injury claims are funded either through legal expenses insurance or conditional fee agreements (CFAs), as mentioned in section 8.
HOW DO BARRISTERS RECEIVE THEIR WORK?
80. The technical term used is that solicitors “instruct” barristers, which essentially means inviting them to undertake work. In practical terms, solicitors send a file of papers to the barrister along with a document called “instructions to counsel,” which outlines the details of the case and the specific work the solicitor requires from the barrister.
WHEN SHOULD A BARRISTER BE INSTRUCTED?
81. Some solicitors prefer to gather all the evidence before instructing a barrister, while others involve the barrister earlier in the process. Barristers generally prefer early involvement so that they can contribute to evidential matters before they become challenging to address. For instance, as time passes, memories may fade, witnesses may become unlocatable, or there may be limited time for the barrister to assist in shaping the case before a settlement meeting or trial, as discussed in section 24-26.
82. Determining the ideal time to instruct a barrister can be challenging. Solicitors may consider the cost implications of involving a barrister at an earlier stage, as it may later be deemed unreasonable. This decision typically depends on factors such as the amount of compensation at stake, the complexity of fault and quantum issues, and the specific issues counsel is asked to consider. As a rule of thumb, in claims exceeding £50,000 in value, solicitors who involve a barrister at an early stage are unlikely to face criticism.