Thursday, May 19, 2005

Disappearing Trials

I interviewed a lawyer today who litigates property disputes in the High Court in London. At least that's what he thought he ought to be doing.

His problem is that hardly any cases get to trial: they all settle before. Courts and the rules of civil procedure are pushing cases into the hands of alternative dispute resolution, mainly mediation. The two procedures couldn't be more different. In court the two sides present their cases, their version of truth, then let a judge determine which of them should win. Essentially, it is like a football match. It allows lawyers to be tough. Everyone likes the closing speeches given to juries we see on The Practice or Ally McBeal. They are impassioned, fluent, literate, and emotive. Of course, in real life closing speeches are ponderous, dull, detailed, and inarticulate. The image beats reality hands down. The OJ Simpson trial was perhaps an exception when OJ's lawyer, the late Johnny Cochran, told the jury: "If the glove don't fit, you must acquit." And they did.

Mediation is not like this at all. It's not about winning. It's about the meeting of minds, continuing the relationship, not beating up your opponent, not crushing his nuts. For some lawyers this is hard to take; it's effete. But if they want to remain litigators, then they must adapt. As my interviewee said, "We have become facilitators for mediation! I didn't become a lawyer to facilitate, I want to litigate." But since mediation is not about fighting, different methods are necessary. The ability to listen, not to get personal, not to fight dirty, the capability to compromise and see how the relationship may continue, not be killed. Mediation requires wholly different skills to litigation and some lawyers can't adjust, they can't let go of habitual ways of doing things. I know from research I've done that it takes approximately a generation to succeed in changing the legal profession profoundly. Because that is how long it will take for the new people to percolate up.

My informant told me that although his workload in his law firm is high--disputes are rising--he's lucky if one case goes to trial in two years. All the others settle in mediation. If a lawyer refuses to take a case to mediation and goes to trial, the judge has the power to penalize him through costs' sanctions.

Is it better for society for this to happen? Maybe...or not. Mediation doesn't give a decision, and sometimes we need to have issues determined properly. Was the war in Iraq legal or not? As much as Blair and Bush waffle on the topic, it needs a dispositive answer. If an asylum seeker is about to be thrown out of the country by an obstinate government minister, the court can stop the illegality and make the minister reconsider.There's no mediation there, nor could there be. Take a dispute between neighbours (very common--think of leylandii) and litigating in court isn't going to foster harmony. In most cases both will go away miserable, even the putative winner. Mediation is probably the better course there, since each could come to understand the other and live more comfortably.

An American legal scholar, Karl Llewellyn, talked of law handling certain jobs in society. Dealing with troubles was one of them. It's just that we don't always need the full regalia of the law to achieve resolution. In his study of the Cheyenne with E. Adamson Hoebel, an anthropologist, he showed how societies without formal governments and states were able to regulate themselves and resolve disputes in the tribe in an inclusive and accommodating way. That isn't to say that groups like the Cheyenne didn't ostracize members if called for, if the offence was that egregious.

Tuesday, May 17, 2005


The supposed joy of being an academic is that one has the time to think and then compose those thoughts into scintillating prose, and hopefully have some effect on the world.

Rarely does it work out that way.

Academics are essentially insecure beings constantly in search of praise, plaudits and power. The last one derives from how much of the first two one receives. Academics hate criticism. They dole it out to others all the time--it's part of the job--but when they are on the receiving end all criticism is vitriol. Alongside this runs the fear of being ignored. Having others being indifferent to you will make academics paranoid.

The upshot is that no academic will turn down a request to contribute something to a journal, a symposium or a book. If you do refuse, will you ever be asked again? You might be forgotten. It doesn't matter how loaded with assignments one is, there is always room for one more. It will always be possible to juggle the deadlines...perhaps.

Of course deadlines are sentient beings who know exactly when the other is due. They will lurk in dark places, apparently forgotten and then jump out just as a deadline thinks it has made it to safety by being completed. No such luck! It's like Arnie in Terminator, they will be back.

My deadlines have been plotting against each other in finest rabid manner. I have the article I'm doing with my colleagues, Julian and Andy. I have revised that on the basis of their critiques. (When you want to be nice to someone, even though you don't like what they said, you don't say they criticized your work; no, you say they critiqued you. Much grander.) The article is due the journal at the end of May. I was a day late with the revision.

I have a paper due for a conference in June on transnational law practice that is should be circulated to the other participants this week. I have another five or so pages to write and I have to listen to recordings to do them. I'm doing this with colleagues at the University of Bremen. More about the big project of which we are part can be found here.

I have submitted a paper to Civil Justice Quarterly on the lessons legal aid can learn from abroad. The editor likes it, but wants me to revise it by cutting out what I thought was some of the good parts. But they are to do with crime and it is about civil justice. I must do this in the next two weeks.

I and three other colleagues are doing some research on the ways courts allocate cases to judges. We are linked with researchers at the University of Utrecht and the Dutch Judiciary Council. We are meant to interview judges, but the bureaucratic hoops we have to jump through to do these means our time line is awfully awry. We are frantically trying to work out how to do the research with as few interviews as possible. On the back of this we submitted a research proposal to a foundation for an international comparative project on this topic. Our outline received favourable feedback, but to deal with the reviews (another way of saying criticisms) by the final submission deadline of May 20 would have entailed not sleeping for up to 14 days straight. We've elected to aim for the next date of September. That deadline is snoring heavily.

I also submitted a proposal to re-study barristers' clerks. (See my earlier article.) Fortunately, that one can fit into a small grant category that has no deadline. What does that mean? Will it ever be done?

On top of this lot I am trying to write a book on law and why am I blogging? Now avoidance tactics are another story.

Saturday, May 14, 2005

Fracturing Legal Profession

I and two of my colleagues, Julian Webb and Andy Boon, were recently asked to write an article for the Journal of Law and Society on the proposed Training Framework Review (TFR) put forward by the UK Law Society. Both Julian and Andy worked on this review for the Law Society and are fully conversant with its features. I am not. The journal editor said, "Make it polemical."

Our three interests intersect usefully. I have researched and written about the legal profession, especially about globalization and the profession. Andy has written about legal ethics and is involved in training and education. Julian writes about legal education and is one of the editors of Legal Ethics.

We split the writing into three sections with Andy introducing the article saying what the TFR was and what issues it raised; Julian is looking at the educational and contextual aspects; and my part was to make sense of it theoretically. All to be done within 6000 words! We each wrote our pieces without seeing the others'. Needless to say, when we discussed the three sections at lunch today, we could see that they didn't quite fit together.

A little background: To become a lawyer in the UK, one can take a law degree and do a one-year vocational course followed by an apprenticeship. Or one can do any degree then take an intensive one-year basic law course followed by the rest. In all it takes about six years to become a lawyer--solicitor or barrister. It's expensive, time-consuming and tends to deter a number of people from trying, especially those who come from less advantaged backgrounds, mainly working class and ethnic minorities. The TFR was set up to increase diversity. In its elements there would be a degree (any) which would then be followed by a mix of work experience, vocational courses, in house learning and so forth. The legal profession, conservative as it is, has reacted with some incredulity.

My initial take, which I am now modifying after lunch, is that this is a process of deprofessionalization. By concentrating on skills at the expense of knowledge, law becomes a set of technical tasks. Why then restrict it to lawyers alone? Secondly, it is a desparate ploy by the Law Society to retain control over a legal profession that is fragmenting into many parts that no longer have much to do with each other. The Law Society hopes that by auditing all these educational activities it will influence the growth of the profession.

But the problem for the Law Society is that it is a weak organization. During the 20th century it became quite powerful controlling entry to the legal profession, disciplining errant solicitors, and handling the legal aid fund for the government. Over time the Law Society has lost its power. It no longer controls legal aid. Lawyers made the budget go out of control. The UK spends over £2 billion a year on legal aid. That is about 17 times per capita what the US spends and about 4 time per capita what the Netherlands spends. We were profligate. Government now deals with legal aid. Consumer complaints against lawyers have risen dramatically in the last 30 years and the Law Society has not been effective in dealing with them and inspiring consumer confidence in lawyers. That part has also been outsourced. All that the Law Society has left is education.

The Law Society is trying to put itself forward as an association that represents all lawyers, regardless of whether they come from megalaw firms, small law firms, solo practice, law centres or in house counsel. This is a task reeking of desparation. The legal profession, as research has shown, has never been unified in the way that bar associations and law societies would like to maintain. My feeling is that groups like the Law Society are finding themselves bereft of a useful role in society. They think they can almost create a new profession by controlling and revising the educational process that produces new lawyers.

The TFR won't achieve it. As my colleague, Julian Webb, suggests, it is a post-Fordist approach to education. One that is moving away from the production line model to a more diverse and piecework model. One that it won't necessarily be able to control in a command sense, but one that it will influence by auditing progress, with all the dangers inherent in audit.

We wondered if there would be international or global issues emerging. The type of lawyer that engages in practice at this level is usually one working for a large law firm. And the types of work they do are often not dependent on cross-border education. A Dutch lawyer, provided his/her English language is good, can easily practise in the UK without obtaining a British law qualification. Admittedly there is a move in Europe to harmonize higher education, the Bologna movement, but it probably won't affect legal education and practice.

If anything, the TFR may well accelerate the fragmentation of the legal profession. Lawyers with different bundles of knowledge, skills and experience will be valued in diverse ways. I suspect some bundles will be more highly valued than others. It may well be a false promise.

Friday, May 13, 2005

The Research Assessment Exercise

I belong to a group called the Socio-Legal Studies Association in the UK. We hold a yearly conference, run a newsletter, and other activities including the SLSA website. Today we had an executive committee meeting and among our topics was the Research Assessment Exercise (RAE). This is an interesting if vexing feature of English academic life in that every five years or so, we evaluate everyone's research and grade it. So far, so good, but we take it one step further: your grade determines how much money your department will receive for research.

Up to now the grading has been on 1 to 5 scale (5 the best). It's changing but in ways we are not sure of. When I joined my law school it was with the brief of raising its research profile. My school had focussed on teaching at the expense of research. But research is the key to building a reputation and becoming a good school. Many of my colleagues didn't want to do research. Gradually over time we were able to hire good researchers and those who didn't research became mainly assigned to teaching only. By dividing the school into three sections--professional legal studies, ie, vocational; undergraduate; and postgraduate--we were able to assign the researchers to the postgraduate section where their teaching was concentrated on masters and PhD students, which gave ample time for research. In some ways it was harsh, but it was really the only way that we could push the research agenda.

Our first real effort in the RAE came in 1996. Now as with most activities like this, there is a game element and how one plays that game affects the outcome. In 1996 we were naive. We submitted too many active researchers whose work wasn't good enough. We were graded 2. That was bad. The worst part was that a 2 grade meant no money was forthcoming. It meant our research was considered only nationally ranked. Our university was upset at the grade as well, and it decided that it would not give us any funding for research! For the next five years any funding would have to be generated by ourselves.

To learn the game we asked an expert committee of external law academics to come in and examine us and our research. They were hard saying that our research was spread too thin or we had focussed on research reports instead of finished journal articles. They also criticised the university for cutting off our research funding. Unfortunately the university ignored that part.

We honed our strategy. We used research grants to help younger colleagues and graduate students. Whenever the opportunity to hire a new academic occurred, I made sure I sat on the hiring committee. Too often committee members could be won over by appearances instead of concentrating on the research track record of the candidates. My task was to argue for the best researcher. Others would say "We need a teacher first..." We had too many teachers and not enough researchers. From 1996 to 2001, the date of the next RAE, we hired a group of younger, more radical research types. All basically did sociolegal research, which most law schools tended to ignore in favour of black letter law. We were able to submit a tightly focussed research team with good outputs and a healthy number of research grants. This time we scored a 5! That is, our research was international in stature.

We were shocked but were we pleased. Our law school made the biggest jump of any law school in the rankings. I wish the university had been as enthusiastic. In fact I think they were discomfited by our success. They hadn't backed us and therefore couldn't take the credit--it was all ours. While every other university put their RAE grades on their websites in a matter of hours, Westminster took almost three weeks to put theirs up.

The results have been good. More research grants come our way, better graduate students apply, and better candidates consider applying for faculty positions.

The next RAE is in 2008 and this time the rules are changing... A new grading system is being introduced. This time it will be 4* to 1*. No one knows how it will work. All we have to go on is how we handled it before. For a small research group like ours it is difficult to think of alternative strategies. We still insist on good publications in good journals, etc. But it looks as if the rules of the game are being altered to raise the stakes. 4*, 3*, 2* are now international. In the old 1 to 5, only 4 and 5 were international. Now it seems that 4* will have such a high barrier that only say 10% will be able to achieve it. Perhaps it is to prevent grade inflation, but I think it has a financial incentive which is to confine research funding to fewer schools. This could seriously hurt our law school.

Our university hasn't come to terms with the changes and although we should be hiring one or two new faculty and enrolling new grad students, it won't release the funds. We will do well despite them, but how well?

Wednesday, May 11, 2005

Who Am I?

I am an English socio-legal professor trying out blogging for the first time. You can find my academic vita and other details on my website.

This blog is for me to comment on the academy in the UK and talk about my research and reactions to it.

I used the term socio-legal above, so let me explain it. Most law professors analyze court cases and legislation. It's often done in isolation of what is happening in the real world. Socio-legal studies attempts to reverse that by examining the effect/impact/process of law in the community.

Let me give an example: the first socio-legal research I ever did was a study of barristers' clerks. To those of you outside the UK and mainly Australia, this is a strange job title. You need to go back to Charles Dickens to make sense of this. Barristers have always seen themselves as the aristocracy of the English legal profession, wearing horse hair wigs and gowns, looking like characters from an 18th century drama. If you watch English TV programs, you'll see them as the advocates who present cases in court, eg, Rumpole of the Bailey. They are mostly middle and upper class with private educations. Barristers usually don't deal with clients directly, instead they use a clerk to negotiate their fees, book their court appearances, and advise them on the progress (or otherwise) of their careers. Unlike their masters, barristers clerks are generally working or lower middle class, with little education. They learn on the job as apprentices. The difference between clerks and barristers was summarized by a senior clerk telling his junior:
"When I call a barrister by his first name, you call him 'Mr Smith'. When I call him 'Mr Smith', you call him 'Sir'. When I call him 'Sir', you don't speak to him."
My research showed how the legal system and the ways litigation were handled depended significantly on an unknown group of people who commandered the backstage. I carried out this research by becoming a barrister's clerk for a while, as an anthropologist would. (You can find the book, Barristers' Clerks: The Law's Middlemen by clicking the title.) If I had merely described the rules governing the legal system, little of this would have been picked up or given the due it deserved. This is why I think socio legal studies is important.