New Personal Injury Law may drive up quality of care

Guest PostEarlier this year there was a drastic change in the law concerning personal injury claims. The Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) was introduced in April 2013 and now represents a profound change in aspects of Legal Aid.^. There are winners and losers with this new act but the reason it had to be done has a sound basis. It was basically to combat the many fraudulent claims being made in ‘crash for cash’ illegal groups who arrange ‘accidents’ just to claim and also the surprising amount of legal companies who were making money from this.

Before the New Act:
Previously a personal injury claim was done on a ‘No Win No Fee’ basis and nobody could fail to notice the intense media advertisement of the companies handling these claims. If you were injured you would actually receive the full amount of compensation due with no personal cost at all. The solicitor handling your claim would rake back any costs involved, e.g. medical reports and expenses, fees from the court etc from the other party being claimed against – via their insurance cover.

After the April Act:
There is now tougher regulation and a ban on the ability for solicitors and claims management companies to handle any referral fees. Some rogue companies previously also took fees from customers just on a verbal basis without there being any written and agreed contract. This is now also banned.

The client now has to pay any of these additional fees out of their compensation amount awarded; they will be totally responsible for all their expenses.

The crucial part of this regulation is that if there is a dispute fees may be anything from just a few hundred pounds up to thousands. Any complex cases may even result in the personal injury claimant having to pay the defendants costs too. Consequently small claims have to have substantial and hard evidence of proof of accident to make sure that their claim is proven. Even so the problem has to be faced that the claimants costs may rise substantially and even wipe out the amount they are awarded completely. Good legal advice is therefore advisable before any claim is pursued.

So is this Act working?
In July the government reported that many Claims Management Companies have now shut down – and this is not just an odd few – it is hundreds! The Claims Management Regulation Unit (CMRU) released figures that proved the efficiency of the new Act. In March 2012 there were 2,435 registered companies handling personal injury claims. In June 2013 – only 2 months after the new Act was introduced, this number had reduced to only 1,700.

There are still mixed views on the eventual outcome of the new regulations and only time will tell as to whether they have achieved all their goals. However conclusively it has to be said that these measures are bound to have an effect on the ‘compensation culture’ which was becoming far too open to misuse. Ordinary people who are honest have been suffering the consequences of dishonest claims through a rise in their insurance costs. It is therefore definitely now advisable for anyone who feels they have a right to make a personal injury claim from an accident, to consult a solicitor first before contacting a Claims Management Company. The quality of advice honest claimants need can be now almost guaranteed to be of higher quality and the company handling the claim will necessarily take more care in their judgements and legal advice.

Pre-Approved Free Speech

Guest PostIt seems that around the United States, 1 out of every 6 major colleges have designated areas where students are "allowed" their Constitutional right for free speech. In these colleges, exercising your right to free speech requires a permission slip at least a couple of days in advance, as well as having the administration approve the contents of a student's speech.

A prime example of this hilarity recently took place at a California Junior College. As UCLA LAW Professor Stephen Bainbridge reported, “a student found his exercise of free speech shut down" on none other than Constitution day, quite possibly the worst and/or most ironic day of the year for a college to make such a bold restriction.

Law graduates lose out in the early salary stakes

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Despite having a reputation for rewarding its professionals with high salaries, new research suggests that law may not be the most lucrative subject to study – at least in the early years following graduation. New research from the Higher Education Statistics Agency revealed that law graduates typically earn less than the average salary of their peers.

Indeed, even those graduating with degrees in social studies (long regarded – unfairly or otherwise – as being less demanding subjects compared with many traditional subjects) earn more than their counterparts who opted to study law. This is unlikely to be welcome news to current law students studying in London or elsewhere.

Figures from the class of 2008/09 show that law graduates earned an average of £26,000 in November 2012, £1,500 less than the overall average of that year’s graduates. Social studies graduates earned an average of £3,000 more than their peers who studied law.[1]

On the flip side, however, law has one of the highest levels of full-time employment amongst its graduates of any subject.

Some 79% of law graduates are currently in full-time employment, compared with a total average of 72% for all graduates from 2008/09.[2]

Of course, that’s not to say that all law graduates are employed in legally-related jobs, let alone having secured training contracts or pupillages. Indeed, some estimates suggest that of total number of law graduates, as few as 10% - 15% go on to become practising solicitors.

Nevertheless, law has long been recognised as being a well-respected and worthwhile subject to study and one that equips its graduates with a vast array of useful, transferable skills that employers are anxious to see.

While the legal profession is undoubtedly changing, with fewer graduates going on to qualify as solicitors and barristers as firms develop a preference for armies of paralegals, law remains a solid choice. It also happens to be an exciting and challenging degree. Universities are also increasingly offering law courses which combine law with other disciplines such as Law and Management to provide even more diverse and specialised courses.

Potential law students should not be discouraged from studying law just because their first salary post graduation might not quite match their peers who studied other subjects. Adopting a longer-term view of the quality of career that law can offer, there are lots of far worse subjects out there.

^{[1] Story cited from the Law Gazette 09/09/13.
[2] Story cited from the Law Gazette 09/09/13.}

Even lawyers need a break from the day job

According to the ABA Technology Survey (which the Lawyerist blogged about here) only 41% of lawyers claim to read the terms of service for cloud computing services.

Note the words “claim to”. I think the percentage of lawyers who actually read the terms they claim to read is more likely to be 4.1%!  In my experience, lawyers are the least likely to read contract terms when purchasing things online for themselves.

And that applies to practising lawyers right through to those in academia!

After all, there’s only so much of that stuff that anyone can stomach. Everyone needs a break from the day-job.

Put it another way: how many restaurant chefs do you think go home and cook for themselves at the end of a tough night’s service?

Working with Legal Interpreters: 6 Things Every Lawyer Needs to Know

Legal interpreters are crucial within the legal field. They work with lawyers in helping them communicate with clients as well as represent parties in court, tribunals and the like. Without interpreters, one could argue, there would be no justice whenever a language barrier exists.

Working with interpreters, to get the best out of their expertise, is something every lawyer should know, no matter their status or position.

This guide offer 6 points every lawyer needs to know about legal interpreters.

1.  Set ground rules
Legal interpreters work in a highly pressurized environment; so planning is key to effective communication. Before you begin working with an interpreter, it is useful to agree some ground rules. For example, you may want to agree in advance where the interpreter will sit, how parties will be introduced, when the interpreter should translate and how sensitive subjects should be approached.

It’s always useful to provide a written confirmation of the rules you require adherence to in advance, as this will make things easier for the interpreter who will then be able to focus on the task at hand.

2.  Speak clearly and slowly
The tone of your voice, your body language and facial expressions will all help you in getting your point across, so when speaking through an interpreter stay calm, speak slowly and take regular pauses and breaks. Always remember an interpreter has to remember exactly what you have said before translating and relaying that; giving them time to process what you say helps them become more accurate. If you feel you have rushed a sentence, simply repeat it or say you want to rephrase it.

3.  Prepare the interpreter for the task ahead
If an interpreter is going to translate in a complex legal matter or for something sensitive, it will help if they have some time to prepare for the task ahead. It will help if the interpreter has access to some useful background material which highlights any issues involved. These usually come in the form of case notes, witness statements and the like. Anything written in the press also helps gives context. If specialist legal terms are going to be used, it will be helpful to explain this in advance so they can familiarise themselves with the best-fit translations they can adopt during the case.

4.  Guide the interpreter
If the interpreter is speaking too quickly, or is not making points clearly enough or carrying out their job in a manner you are not happy with, you should always say so. This helps the legal interpreter give you exactly what you require. If you are unsure of something you should be forthright and request that it is explained again. This avoids misunderstandings that can crop up from time to time. Always remember the interpreter is there to translate what you say and help you; they should not have their own agenda.

5.  Stay away from humour
Humour is notoriously difficult to interpret so when communicating through an interpreter it is best to avoid it altogether. The same applies to idioms, sayings and phrases which will cause the interpreter headaches and get in the way of clear, simple communication. Keep your language simple and straightforward.

6.  Use visual aids
If the interpreter is to be asked to interpret something which has been prepared in advance, for example a speech or a legal submission, it is a good idea to give the legal interpreter a copy of it in advance if possible. This will be a helpful aid and it can really make a huge difference in the quality of translation. Similarly, use visual aids whenever it appears that people are confused or haven’t quote understood what is being discussed. Photos, images, graphics, etc can all help cut through potential confusion.

Interpreters working in the legal world are first and foremost professionals. They are aware of the demands of working within the sector and the protocols that govern their conduct. However, it is important as a lawyer to ensure the interpreter does the job you need them to do; and this can only be done by working closely with them, communicating your goals and agreeing boundaries.

This Guest Post comes from Kwintessential, a UK based translation and interpreting company. 45% of their work is carried out for legal firms giving them unique insight into the need and use of language services within the legal sector.

Late-Life Crisis Caused By Bereavement and Personal Injury

Guest PostWe’ve all heard of mid-life crises, but until recently, hardly any research had been performed on what is now being dubbed the ‘late-life crisis.’ Perhaps this is a symptom of higher levels of longevity in the modern world. Either way, one-third of 60-69 year-olds suffer from this psychological shift in the UK.

Late-life crises are largely periods of withdrawal, depression, isolation, and anxiety about this time of life. Unlike the mid-life crisis – which is largely caused by despair at how the chips have fallen, a loss of youth, and worrying financial concerns – the triggers for the late-life crisis tend to emerge from bereavements or personal injuries.

Why? Losing loved ones or your own mobility can make the elderly feel as if time is running out – increasing frailty is hard to accept for some, especially those who depended on their physical abilities to earn a living.

It’s Not All Doom and Gloom
One-fifth of 60-69 year-olds feel as if their views on life are unchanged, and for many, this is a time to take life more slowly – it’s a good time to live and maybe start moving into retirement or spending more time at the allotment/with the grandchildren/going on vacation, etc.

Understandably, this period of life does present difficult obstacles, such as failing physical health and a greater likelihood of friends and close ones passing away.

The online survey recorded the views of almost 300 60+s in the UK. Bereavement was cited as the most common trigger of a late-life crisis, closely followed by personal injury. Usually, stressful events that led to a late-life crisis were caused by poor health of love ones or themselves – it would make them more aware of their frailty and mortality, as a result.

Personal Injuries
As we get older, injuries become more likely. Especially personal injuries from slips or falls. And the older we are, the less quickly we are likely to recover and the less effectively we will heal. It’s important to claim compensation, if you are not to blame for your injuries, as you’re more likely to need expensive care. Road traffic accident solicitors can help you if you were involved in a vehicle collision, so get legal advice.

It’s common for road traffic accidents to jump-start late-life crises, as these experiences often involve loved ones in the car too. The experience can be traumatic and lives can be easily lost.

As people realise they can’t carry on as before, they experience a development crisis. When a person in their sixties is overwhelmed by loss-inducing events, it’s common for a late-life crisis to ensue. With better understanding of this process, psychologists can help treat this problem and aid elderly patients. Mental health issues can have as far reaching an effect as physical ones, and in some cases are so debilitating that living becomes exceptionally challenging.

Environmental liability regulations every business should know about

Guest PostAll businesses have environmental responsibilities and these were made a legal requirement by the Environmental Liability Regulations 2009, which came into force in June 2009. It is essential that businesses make themselves aware of these regulations and the kind of impact their activities will have on the environment.

Environmental Liability Regulations
These regulations introduced in 2009 bring English law into line with the European Commission's Environmental Liability Directive. The main aim of these regulations is to improve and prevent damage caused by the effects of business on water, land and biodiversity.

The way they are implemented is based on the principle that the polluter should always pay. The regulations aim to achieve this by holding businesses financially liable for actual damage or potential damage to the environment. This puts the onus on businesses to foot the bill for any damage caused, or for the cost of preventative measures rather than on the taxpayer. The Regulations refer to businesses as "operators of commercial activities" and insists that they implement precautionary measures where appropriate to avoid damage to the environment and to take action if damage does occur. Environmental solicitors can provide useful definitions and advice on the more complex areas of environmental law, as can the relevant authorities.

Environmental damage defined
The Regulations define environmental damage according to three main categories: water damage, land damage and damage to species and habitat.

Water damage occurs when the ecological and chemical status of surface water or ground water deteriorates. Land damage applies to any contamination of land that poses a threat to human health. Damage to species and habitat occurs when protected species and natural habitats are damaged, especially if there are negative and significant effects on maintaining the optimum conservation status of these species and their natural habitats.

Pollution incidents and severe cases
There are existing laws in place covering day-to-day environmental incidents and the Regulations apply to incidents that cause significant environmental damage or threats. The Regulations list in Schedule 1 which incidents and their causes will be deemed to come under significant environmental damage. Most incidents involving pollution to not result in long-term water damage and damage-to-land incidents are also considered to be rare. Businesses should consult the Regulations for detailed information.

The reach of the Regulations extends to the UK seabed, taking in the Continental Shelf Act 1964 limits and the Renewable Energy Zone waters extending to around 200 miles out to sea. They also apply on land in England.

Environmental Authorities
The primary enforcing authority for biodiversity damage is Natural England. The other main authorities are the Environment Agency, the Marine Fisheries Agency and a range of local authorities.

If your business and its activities have caused actual damage to the environment, or you believe there is a threat, then it is essential that you do all you can to prevent damage or future damage. It is also crucial that you contact the relevant authority and notify them of the situation so that the necessary steps can be taken.

The primary objective of the Regulations is obviously to protect the environment, but they also aim to make businesses accountable by enforcing the polluter pays principle. The Regulations do cover incentives for businesses to prevent environmental damage. If a business owner is in any doubt about the effect of their activities on the environment, they can seek valuable advice from experts in this field, including environmental solicitors and the relevant authorities.

Eating in lectures

From Legal Cheek 19/09/13:

A Canadian law student has got off to a bad start to the academic year after a spectacularly grouchy email they sent to their coursemates was leaked into the blogosphere.

The missive [which can be read in full over at Legal Cheek] takes issue with the author's peers' propensity to eat during lectures, with tuna sandwiches and apples highlighted as particularly problematic snacks because they, respectively, "stink up the entire room" and lead to "the gnashing of your teeth and the crunch crunch crunch".

Eating in lectures has always been a no-no in my book. I consider myself to be on the slightly prudish side of the spectrum when it comes to these things (I’m still not completely sold on the concept of eating something walking down the street, for instance), but I think a lot of students would fine eating in class to be an unwelcome distraction.

When I was a student, my attention could be easily broken and trying to take information in during a lecture can be difficult enough with the various, sights, smells and noises that accompany the average bunch of law students. To try and concentrate in a lecture hall immersed in a scene that resembles feeding time at the zoo is simply too much to ask.

Outside of having a medical condition which affects a student’s blood sugar level, there really is no need to eat in lectures or seminars. Certainly the lecturers at my university universities wouldn’t have stood for it and there’s no need to let standards slip now.

As an aside, in a former job, I was once astounded by the audacity of a colleague who decided that despite eating her mid-morning snack, it was the perfect opportunity to go up and discuss something with the MD. He took it in good humour; personally, I would have told her to come back and see me after she’d finished munching on her apple (and done so in no uncertain terms!). Clearly he was a more tolerant chap than I am.

Newsreader reinvents the iPad

From the Guardian 18/09/13:

It is a blunder worthy of fictional broadcasters Ron Burgundy or Alan Partridge, but BBC News presenter Simon McCoy outdid both characters on Wednesday when he presented a report while carrying a stack of photocopier paper – after mistaking it for an iPad.

The 51-year-old broadcaster was fronting a live piece to camera from the BBC newsroom when he picked up a refill pack of A4 paper instead of his more high-tech prop.

Instead of acknowledging his mistake and swapping the items, McCoy carried on with the report with the batch of paper clearly visible in his hands.

How is this even possible? I understand that the pressure of presenting live television must be immense, but surely it’s not so much that you mistake the normal weight of an iPad for that of a ream of A4 paper?

In any case, once realising his mistake, he should have salvaged what little of his dignity he could and gracefully placed the ream of paper on the ground instead of presenting the story in the manner of a shelf-stacker at Staples.

Or something. 

More tweaks to the Dangerous Dogs Act

From: BBC News 09/09/13:

Dog owners will be safe from prosecution under revised dangerous dogs laws if their pet attacks someone trespassing in their home - even if the "intruder" is doing a good turn.

Ministers say dogs cannot be expected to "ascertain the intentions" of those entering a property before reacting.

The clarification comes in response to MPs who are scrutinising proposals to update the law in England and Wales.

The government plans to extend existing laws to cover dog attacks in homes.

It is currently updating the controversial 1991 Dangerous Dogs Act.

Ah yes – one of the most heavily criticised pieces of legislation that has ever been enacted!

In fact, in the seven years following the original enactment, there were 35 editorial items in the press that used the Dangerous Dogs Act as an example of bad regulation. And just in case there was any doubt of the extent of the criticism, a very interesting article* I came across sets the record straight:

In public debate the DDA has become a synonym for any unthinking reflex legislative response to media hype. Indeed, the Government's own Better Regulation Task Force (BRTF), the official arbiter of good and bad regulation, has condemned the Act.

Back to the trusty BBC article:

At present, the act covers only attacks by dogs in public places and private areas where animals are banned from being - such as a neighbour's garden or a park.

[D]og owners will not be able to be prosecuted if the victim was trespassing in their home.

In a response to MPs on the Environment, Food and Rural Affairs Committee - which has made a number of recommendations to ministers - the government rejected the idea of a similar exemption in relation to attacks on people trespassing in gardens or outhouses.

"A child retrieving a ball from a garden, or a neighbour retrieving garden cuttings, should be protected from dog attacks," officials said.

I think the drawing the distinction between those trespassing within a dwelling with those trespassing elsewhere is a sensible one (particularly when you consider the scenarios of a friendly neighbour retrieving hedge cuttings or a child collecting a lost ball given above).

However, I’ve long thought that it should be mandatory for all dog owners to erect signage of a specific size which is featured prominently at all likely entrances of premises where a dog is kept.

I accept the point that it’s more likely for a trespasser to have ill-intent if s/he enters a dwelling (compared to just a garden, say) and it’s therefore logical for the Act to not apply should a dog attack subsequently take place. However, we would be on much firmer ground – from a good regulation standpoint – if any trespasser who went on trespass within a dwelling did so knowing that a dog was on the premises.

After all, all dogs have the capacity to be dangerous, but often times you don’t find out which ones actually are until it’s too late.

* Hood, C., Baldwin, R. and Rothstein, H. 2000. Assessing the Dangerous Dogs Act: When does a regulatory law fail? Public Law, Summer 2000: 282-305.

Upper age limit for jurors is amended

From Gov.uk 20/08/13:

People up to the age of 75 will soon be able to sit as jurors in England and Wales under plans announced by Criminal Justice Minister Damian Green today.

The proposal is part of a drive by the Ministry of Justice to make the criminal justice system more inclusive and to reflect modern society by giving people aged 70 to 75 the opportunity to serve on a jury.

Currently, only people aged between 18 and 70 are eligible to sit as jurors.

I find the jury selection process absolutely fascinating.

Anecdotally, you hear of large swathes of potential jurors who are ready, willing and able and yet never get a look in. Others, rather strangely, get called up more than once.

The Criminal Justice Act 2003 introduced a raft of sweeping changes in which previous exceptions to serving on a jury (including those relating to judges, practising lawyers and law graduates) were removed. That resulted in a much larger pool of jurors than was previously available.

The government have been keen to stress that this most recent change is more about amending the law so it reflects increased life expectancy and is not discriminatory against older potential jurors.

Still, it seems a bit harsh to make a 75 year old sit through a painfully slow and dreary trial.

We can’t be that short of potential jurors, can we?

Taxing Times: UK Corporate Tax System In Need Of Overhaul

Guest PostUnless you’ve been hiding out in the Himalayas you can’t have missed the recent uproar over the extent of tax avoidance by global corporations like Google, Amazon and Starbucks. As small businesses and individuals feel the financial pinch there has been growing discontent over the comparatively minor amounts paid by huge companies, resulting in the cross-party House of Lords committee on economic affairs calling for a huge overhaul of the UK corporate tax system.

Although the current low-levels of tax paid by these companies are legal, they rest on the exploitation of loopholes in the international tax systems. For an idea on just how little tax some companies can pay US technology giant Apple paid no UK corporation tax in 2012. That’s right: none. When you consider the huge profits such a company makes it’s not hard to see why there’s a consensus that change needs to take place.

The House of Lords committee believe that the ability of global corporations to avoid tax to such a huge extent, while smaller UK-based businesses are forced to play by the rules, calls the whole tax system into disrepute. The lost revenues are also enormous, and at a time when state benefits and public sector services are being stripped back to the bone to make savings it only seems fair that these corporations be forced to pay their fair share.

To help facilitate this the peers, led by Lord MacGregor, have recommended that companies be forced to publish tax summaries which would allow the Government and the general public to see what they have paid.

A major hurdle that would need to be overcome before such a system could be put in place is the current duty of confidentiality that HMRC has to taxpayers. Although the House of Lords committee has suggested a joint committee made up of members of the Lords and the House of Commons, which would review reports and evidence in confidence, HMRC believes a change to the current laws would need to be made.

In addition to disclosure by the companies, the committee also suggested new regulations for tax advisers to adhere to. It’s felt that the issue of major corporate tax avoidance is facilitated in part by tax advisers encouraging companies to sign up to what the committee called ‘blatantly contrived’ tax avoidance schemes. The committee recommended stiffer regulations, with the removal of their right to practice if tax advisers breach the proposed codes of conduct.

These findings chime nicely with the current plans being formulated by the OECD to help bring about wider change to the international tax landscape. However the committee are also urging the Treasury to explore other options including a destination-based cash flow tax system similar to VAT.

With the growing voice of public disapproval mounting, fuelled by disclosures in the media, it seems that the days of low tax or no tax for the big multinationals might be coming to a close.

‘Ignore your sat nav’ signs need to be given green light

From BBC News 30/08/13:

The Highway Code should to be amended to include signs which warn motorists where sat-navs are not suitable, it has been claimed.

Armand Toms, a councillor for Cornwall, wants traffic laws changed so that drivers do not get stuck in many of the narrow roads across the county.

"If you had a sign that said, 'don't use this route' it would help. But the Highway Code doesn't have that at the moment and we would like the government to take notice and put in some commonsense and say 'switch your sat-nav off'," Mr Toms said.

"It's about putting some reason back into driving. The quickest route is probably not always the safest route."

Well said that man!

Driving in an unfamiliar part of the country can be a daunting prospect at the best of times and being ‘guided’ by your satnav can lure drivers into a false sense of security.

When I travel back home to Cornwall, I’m always reminded that drivers should treat driving in Cornwall like they might a foreign country. Its roads and streets can be ridiculously narrow and completely unsuitable for the types of vehicle that sometimes try to squeeze down them. Drivers unfamiliar with those types of road (read: tourists) should stop and consider in advance that the types of roads and situations they might encounter may be totally alien to them. A bit of foresight can go a long way.

Using Sat Navs in the right way would be a big step in the right, ahem, direction too. They’re a navigational aid and not a replacement for signpost reading and common sense.

Amending the Highway Code to allow for these ‘ignore your satnav’ signs is a no-brainer and long overdue.