I have just finished reading the recent issue of APIL Focus magazine.  In which there are 2 editorials.  One by the past president and one by the current president.

The current president bemoans the public image of PI lawyers.  The past president bemoans the governments plans to change litigation funding for clinical negligence.

The public image of PI lawyers is tied in with the attempts to stop the changes being brought in with LAPSO.  The majority of PI lawyers are not rich people but the people that employ them are.  Those who owned law firms doing PI work over the last decade made bumper profits off the back of increased claims (due to CFAs opening up access to justice) and success fees.  That those profits were not stored for a rainy day is not the government or the public's problem.  It was always the case that the golden era for PI would end.  That is the way of things and those who thought it wouldn't or that they could lobby to stop it were fooling themselves.  The image of the fat cat lawyer has been replaced by the fat cat PI lawyer whilst the public sees its car insurance go up year on year. 

That the 2 things may not be linked is irrelevant in terms of public perception.  The public sees a compensation culture making PI lawyers rich so that must be true even if that is a media invention (compensation culture anyway). You only have to watch 2 hours of day time TV to understand why they think there is a compensation culture.

This public image is not helped when those who have benefited from a closed market place for catastrophic injury in medical negligence try and prevent a government doing something that one imagines the public is ok with.  They would rather see Legal Aid cut for medical negligence than more cuts to the NHS or front line policing.  Especially when they think (rightly in many cases) that the firms who have done that work have become rich off the pickings.

The truth behind the LAPSO concerns are masked by arguments about access to justice.  In truth clients will still find they can bring claims.  The qualified one way cost shift (QOWCS) should work in practice.  Lets not forget (as many LSC proponents seem to have done) that if you have LSC funding and then your circumstances change after you lose the case (lottery win for example) you can still be chased for costs.  If you fail to beat a Part 36 offer then the costs still reduce or wipe out your damages under the current system.  Will insurers pursue beyond this as it is unlikely they would ever see their money?  Could firms not indemnify clients for the eventuality that (upon their advice) they reject what proves to be a reasonable offer? Surely no one bills a client after getting it wrong?  Why not give them peace of mind as well?  How often should a decent lawyer get advice on a Part 36 offer wrong anyway? 

If a client conducts the claim unreasonably now under a LSC certificate that behaviour results in discharge or revocation of the funding leaving them at risk for costs as the shield is gone.  If a client does that on a CFA funded basis then the lawyer stops acting and walks away.  They would also lose ATE cover as that is often a requirement of the policy (behaving reasonably).

The advice given to a client should not be much different to that given now.  If you don't beat a reasonable offer, if your finances change after a lottery win or if your behaviour is unreasonable then you could pay costs to the other side.  We give that advice now and clients accept that they must follow our advice and conduct themselves reasonably. The QOWCS will make no difference.

None of the main objections hold any water in reality as the situation is not earth shatteringly different to the current situation.

The truth is that those shouting loudest about LAPSO are those who stand to lose the grip on high value medical negligence or realise that the lack of success fee (be honest no one will take damages off a client) means lower profits and a reduction in their standard of living.

Those who believe the secret to a CFA based practice in medical negligence is "cherry picking" and being risk averse are misleading themselves.  There are plenty of lawyers who will still take the same calculated risks post LAPSO.

If are best argument is that the public (who are seeing less money on frontline services) should fund lost cases so we can take risky cases then we will lose even more public support.  As it is I do not see massive public support for the campaign to change LAPSO.  Will the Lords and the coalition care what lawyers think or what the electorate think?

In truth our public image is being harmed by the campaign to retain Legal Aid.  The public are not stupid and see that the real issue is reduced profit for those who own the firms.  Time to come clean.  LAPSO was always coming and the system can work.  The problem is that many law firms are running with overheads that mean they cannot stand a reduction in fees or to fund out of pocket expenses.  Sensible management of any business means keeping costs under control.  Law firms have felt immune from the rules of business for too long.  The market place is coming and market forces are no respecter of tradition.  The ABS's will be able to carry on providing these services and here at Price & Slater we plan to carry on funding disbursements and winning cases to get paid.  Perhaps the firms lobbying for the status quo would be better served focusing on that as a business model and accept the reality of what is to come.  Or perhaps they have so little faith in their ability to win that they need to preserve the status quo.

If PI lawyers want to feel the love of the public then we should take our share of the pain now.  We cannot change perceptions of compensation culture as we know there isn't one (in terms of case volumes anyway).  But we can look less like "fat cat" lawyers.  Tme to lead by example and accept our profession's share of the austerity package.