A Barrister's Guide to Your Personal Injury Claim (eBook)

SECTION 4: THE DIFFERENT LAWYERS YOU WILL ENCOUNTER AND THEIR ROLES

HOW DO ‘LAWYERS’, ‘SOLICITORS’, AND ‘BARRISTERS’ RELATE TO MY CASE?

62. This is a question which individuals often want to ask but feel too embarrassed: are there two or more different types of lawyer, and if so – why, and what do they do?

THE SOLICITOR

63. In a nutshell, a personal injury solicitor works in a ‘firm’ or ‘partnership’. Solicitors are lawyers, who have met the qualifications and training requirements of the Law Society (www.lawsociety.org.uk.en).

WHAT DOES THE SOLICITOR DO

64. In general terms, the solicitor builds and shapes your claim. They start by meeting you (and/or getting you to complete a detailed questionnaire/s), explaining their terms of business, learning about the accident, and gathering factual and expert evidence to support the claim.

HOW DOES A SOLICITOR ATTRACT/OBTAIN WORK?

65. A firm of solicitors traditionally attracted work by ‘word of mouth’ recommendations and by local presence (e.g. on the High Street). While this continues, solicitors (particularly very large firms with a national presence) now typically obtain work by advertising on the internet, or on social media, or television.

66. It may seem an obvious point, but it is worth remembering that there is no reason why the slickest advertisement will necessarily lead you to the most appropriate lawyer. You must look around, especially if you have been told you have an unusual medical condition, because there may be specialist solicitors in that field.

67. Also, do not ignore smaller, more traditional firms of solicitors, where a small number of individuals conduct personal injury litigation. Those individuals probably receive their work from the traditional recommendations, local presence, or indeed because they are highly specialised in a particular field (perhaps occupational diseases, or pain syndromes). There is no reason why a solicitor in a smaller firm should be less likely to represent you with excellence.

68. Clearly, in a large firm, there may be a ‘pool’ of knowledge solicitors can usefully share, but equally, an expert in a small firm may be able to devote more time to your claim than might be possible in a large firm, where each solicitor may have a very large caseload or might have to spend a significant amount of time supervising junior staff instead of working on their own cases.

69. It is worth keeping in mind that most of the firms which represent injured individuals advertise themselves as ‘specialists in personal injury litigation’.

70. Given that you have already suffered an injury, you need to feel relaxed about the way your claim is being handled. So, without being overly critical, try to judge whether you feel as if you are a valued client:

(a) Who is dealing with your claim - a trained lawyer with experience? (see later on in this section);

(b) Do they respond reasonably quickly to your calls, emails or letters?

(c) Do they deal sensibly with your concerns or ‘fob you off’?

(d) Is your case progressing, and if not, have you been given reasons for any delays?

(e) Have you received an interim payment, and if not, what is the reason? (see section 19);

(f) Have you been sent to be examined by a medical expert who is a specialist in the injury you have suffered? (see section 13).

71. If answering those questions does give rise to concerns, you should tell your solicitor, so that they can be addressed. If that does not happen, you should consider moving on (see section 6), and if you decide to do so, grasp the nettle immediately, and start your search.

THE PEOPLE YOU MAY ENCOUNTER IN THE SOLICITOR’S OFFICE

72. Firms of solicitors also employ people who have different qualifications but can still provide useful services (at a lesser wage cost to the firm). The typical composition of a solicitors firm may include all of the following individuals acting for an injured person:

DO THE SAME SOLICITORS ACT FOR INJURED INDIVIDUALS AND INSURERS?

73. Nowadays it is much more likely that firms of solicitors will represent either injured individuals or defendants (i.e. insurers), but not both. The fact that solicitors spend much of their career in one ‘camp’ or the other could be regarded as a reason for the increase in the sense of ‘us’ and ‘them’ within litigation – because neither ‘side’ has a ‘feel’ for the position the other ‘side’ is in.

74. The same trend has unfortunately developed in relation to expert witnesses, who tend increasingly to provide evidence to one ‘side’ or the other, despite the fact that the expert’s duty is, above all, to the Court (see section 13).

THE ‘BARRISTER’ – ALSO REFERRED TO AS ‘COUNSEL’

75. A barrister, just like a solicitor, is a lawyer. Barristers have a long and interesting history (see the link to ‘Middle Temple’, one of the four ‘Inns of Court’, which all barristers must be affiliated to: www.middletemple.org.uk). There is still something of a mystique about them, probably because they still wear a very historical costume in court, the best known parts of which are a horsehair wig (which is itchy!) and a long black gown.

DIFFERENT TERMS FOR DIFFERENT BARRISTERS

76. There are only two ‘levels’ of barrister. About 90% are ‘just’ barristers, who are also known within the profession as ‘junior counsel’. About 10% of barristers are ‘senior counsel’, who are also known as ‘King’s Counsel’ (or ‘KC’). Being appointed KC is recognition of excellence and seniority within the profession. As a rough guide, in personal injury work, KCs are appointed after about 25 years in practice.

77. There are a number of different names for KCs, including, ‘silks’ (because they wear a silk gown), and ‘leading counsel’. The phrase ‘leading counsel’ reflects the fact that sometimes a silk and a junior may be instructed together (the silk is said to ‘lead’ the junior). These are typically in cases involving many complex legal issues, a large volume of documentation, or a very high value claim, such as the multi-million-pound lifelong care claims seen in catastrophic brain injury cases.

78. There are many skilled and experienced barristers who, for a number of reasons, choose not to ‘apply for silk’ (for example as many cases settle it is very difficult to gather the number of judge’s references required; another is because there is not enough work at the KC level in some geographical regions).

79. Within the profession, more experienced juniors are sometimes known as ‘senior juniors’. It follows from what I have explained, that in the vast majority of personal injury cases, you will be represented by a barrister who is not a KC.

QUALIFYING TO BECOME A BARRISTER

80. A barrister must meet the qualifications and training requirements of the Bar Standards Board (www.barcouncil.org.uk).

81. Traditionally, barristers have been considered the ‘advocates’ among lawyers, i.e. the lawyers who actually present a case in Court. In injury claims, there are often several...