Communication with clients is something that probably deserves a whole subject of its own and this is true for both barristers and solicitors. You have to get things right. It goes ... almost hand in hand with contracts because that’s a form of communication as well.
You have to be sure that you are translating ... into the words of the contract what the client actually wants. All of those soft skills are very, very important and will be even more important if we want to keep our edge.
Barrister
2.84 The quotation above encapsulates many of the findings from the data on communication.
While the research generated some debate (and disagreement) about the range of
communication skills which needed attention, concerns about two areas came particularly to the fore: written skills and advocacy.
Non-billable Work/
2.85 New lawyers’ written skills have previously been a matter for concern. A large number of comments in the survey and Discussion Paper responses referred to poor spelling, grammar and punctuation.44 Fuller responses from the LETR research data point also to gaps in the structuring of written communications, developing familiarity with writing for different purposes, and their relationship to legal analysis skills and meeting client expectations:
One skill that I perceive comes up time and time again is the ability to actually produce a coherent written piece of advice. And this is so difficult to teach to students, because most of them are coming with their undergraduate heads on. When they’ve had the luxury of time, being able to sit in a library and produce a beautifully written dissertation. But it’s completely different, particularly when you’re under pressure, time pressure to be able to produce sensible coherent and correct written advice.
Academic (LPC)
... on the written side it is distilling vast quantities of information - they get ever increasing volumes of information - succinctly and getting the analysis right. Brevity is something that’s all too uncommon amongst the younger generation.
Solicitor
2.86 The data tend therefore to align with Hilsdon who, in a study of undergraduate students’
writing skills, (Hilsdon, 1998:34) pointed to the need for more guidance in topics such as:
• describing, defining and explaining concepts or points;
• reporting, referring to and quoting the views of others;
• supporting a position with reasoned argument;
• evaluating information, views and ideas;
• summing up points and coming to conclusions.
2.87 There is a strong view amongst stakeholders that writing skills require further development at the degree stage, though a number of concerns were also expressed about the quality of writing and, particularly, drafting on the LPC.
2.88 Advocacy is, of course, a critical and definitive legal skill. The risks flowing from poor quality advocacy and case preparation can be substantial. It is also an area of work where there is significant and growing competition: the BSB, the Costs Lawyer Standards Board (CLSB), Intellectual Property Regulation Board (IPReg), IPS and the SRA regulate advocacy; the Council for Licensed Conveyancers (CLC) applied to do so and paralegals are also operating in the field.45
2.89 Standards of specialist advocacy training on the BPTC and through the Inns of Court were generally very well regarded. The advocacy component of the Professional Skills Course (PSC) was not for the most part strongly endorsed, and was widely considered irrelevant to City practice. Several CILEx members in the online survey expressed a desire for enhanced advocacy training.46
44 Objective evidence of a general decline in writing and literacy is difficult to obtain; two studies by Massey and others published in 1996 and 2005 have analysed technical standards of writing in GCSE English language examinations conducted in 1980, 1993, 1994 and 2004. The analysis indicated some fall in standards between 1980 and 1994, but a return to about the overall 1980 standard in 2004. In spelling specifically, 1980 pupils were much better, whereas in other aspects (eg, punctuation) the 2004 students exceeded those in 1980. The use of non-standard English was also shown to have increased through the years: results reported in Rashid and Brooks (2010:36-37).
45 Advocacy is authorised outside the LSA 2007 under other statutes, eg, s. 223, Local Government Act 1972.
46 CILEx Fellows do not have automatic rights of audience. However, for those Fellows who want to train as advocates there is a robust application and training process which must be successfully completed before rights of audience can be obtained.
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2.90 The amount and quality of advocacy training on the LPC came in for the strongest criticism:
‘... advocacy is so poorly taught on the LPC it is almost irrelevant’; ‘pretty rubbish’; ‘very disappointing’ are among the phrases used.
2.91 A number of these criticisms of the LPC were echoed by a group of district judges who, commenting on advocacy in general, highlighted a number of common failings by advocates:
• poor preparation;
• lack of familiarity with the papers;
• failure to understand law and procedure (eg, unable to tell the judge what his or her jurisdiction is for a particular action or order);
• limited advocacy skills;
• lack of familiarity with courtroom etiquette;
• inability to learn from own errors.
2.92 Participants in the qualitative research also discussed the importance of understanding different modes of advocacy: telephone and video hearings. Tribunals (which might involve paralegal advocates), international arbitration, statutory adjudication, and mediation emerged as different contexts for advocacy. The growth in numbers of self-represented litigants was also seen as a particular challenge for which training will need to prepare new lawyers. The development of ReDOC in the BPTC was welcomed as ‘a very brave move’ by a participant, but thought not to go far enough:
[T]he arbitration component of ReDOC is very well-thought out and well-designed ... All you need to know is the various different schools of arbitration, how rules work, appeals from that into the legal system and so on ... it’s very difficult to assess the students’ ability to actually do the skill [of mediation advocacy] when all they’ve got to do is write about it, which they could just copy from a book. ...
‘Client-handling’ skills
2.93 The qualitative data also draw attention to a range of skills that link with effective communication skills to enhance the client’s experience or maintain the quality of the lawyer-client relationship. This aspect was described by respondents in various ways: at its broadest it was called common sense, or psychology, and described as an aspect of both professional ethics and commercial (or sometimes ‘social’) awareness. More specifically, it involved elements of being able to see things from the client’s point of view, emotional intelligence, engendering trust, managing the client’s expectations, the ability to deal with difficult or vulnerable people, and displaying courtesy.
2.94 As noted in Discussion Paper 02/2012, consumers’ perceptions of the quality of legal services tend to focus on the extrinsic or ‘visible’ features of the service rather than intrinsic features such as the quality of advice. These are therefore useful in identifying, from a consumer perspective, what constitutes a ‘good’ experience. Most of the data refer to solicitors, or alternative and sometimes unregulated frontline advisers.
2.95 The 2012 LSCP tracker survey recorded a decline in satisfaction in respect of the level of personalised service and empathy, falling from 75% in 2011 to 70%; there was also less satisfaction with timeliness and communication once a matter is in progress. It should be noted, however, that these results are in a context where consumer satisfaction with a range of professional services appears to have declined across the board (LSCP, 2012). To investigate this further the results of the two largest groups of service providers (solicitors and Citizens Advice Bureaux advisers) in the LSB/BRDC dataset were analysed, and
contrasted with the average results for all providers. Table 2.8 details responses to the question ‘How satisfied were you that your service provider clearly explained the service being provided?’ Similarly, Table 2.9 shows responses to the question ‘How satisfied were you that your service provider treated you as an individual?’
Table 2.8: ‘How satisfied were you that your service provider clearly explained the service being provided?’
2.96 The results for both items are similar, suggesting a strong interdependence between being respected and feeling satisfied with other aspects of the service. Both show high levels of satisfaction, and relatively little differentiation between service providers. These findings fit with earlier research suggesting that qualified lawyers do not necessarily deliver a visibly better service than other providers. Nevertheless the similar levels of satisfaction across the board may also indicate that a ‘ceiling effect’ is in play and that important differences may be uncovered by the use of other measures. How communications were handled was rated lower, as was clarity of costs, and speed of process. However, even for these elements, over 75% of users were generally satisfied. It is notable that advice agencies achieved the highest level of satisfaction for speed of service.
Table 2.9: How satisfied were you that your service provider treated you as an individual?
NOT APPLICABLE
Citizens Advice Bureau 56.60% 20.90% 14.00% 3.90% 3.10% 0.00% 1.60%
All Providers 54.70% 28.40% 10.10% 3.50% 2.10% 0.50% 0.70%
PROVIDER
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2.97 The qualitative data undoubtedly demonstrate that these client-facing skills are required, valued, and well understood by legal services provider respondents. Even though the consumer evidence points to somewhere between relatively good and high satisfaction, participants in the LETR focus groups and interviews also felt more could and should be done to develop and maintain these skills, treating them as a matter of ‘lifelong learning’ (see for example the response from the Junior Lawyers Division to Discussion Paper 02/2012), though overall there was little consensus about the most appropriate stage of training.47 2.98 Some participants suggested that providing advice is something which trainees and
newly-qualified practitioners tend to find very difficult, and in some instances concerns were raised about the variation in client contact that trainees (both CILEx members and solicitors) experience. Some also recognised the need for those professionals who had not previously engaged in much direct client contact to develop these ‘soft skills’, especially in the context of ABSs and greater public access.
Legal research and digital literacy
2.99 There was a strong consensus that legal research skills are important and need to be addressed at different stages in the training process. Despite the small proportion of time spent, on average, doing legal research in practice, it is still considered to be a crucial skill especially for trainee solicitors. It was widely recognised that legal research skills were not sufficiently acquired by the end of the academic stage,48 and that the transition from an academic to a vocational training course, and then to the reality of real-world problems, involved the use of different research methods and the development of different strategies:
Well, the one that I’m conscious of not matching up is research. I don’t think we go far enough. Before I became a lecturer I [worked] at a big City firm and they were very conscious of the LPC not producing students with the right written research skills. Because the problem with the way we teach research is that there is an answer. Because it has to be marked. But that isn’t how it works in practice. And so I did a lot of work before I came here on teaching new recruits how to do research and to tackle the issue that you might not find the answer to a question. It might be that there is no answer. And how to deal with that is something which we don’t really equip students for, I think.
Academic
Legal research should be taught using the resources that people will actually have access to in their practice. On the BVC legal research was easy with access to a full complement of electronic and paper resources, but most chambers cannot afford to maintain such a comprehensive library and much of pupillage and the early years have consisted of teaching myself how to find answers using freely available resources.
Barrister (online survey)
47 A more developed view of what happens in lawyers’ meetings with clients can be found in Sherr, 1986 and 1999. These also provide fuller details on training needs.
48 There were in any event mixed views about how well the LLB or GDL prepared students. This was particularly linked with whether enough was done to focus on finding and using primary materials, and notably statute law. The British and Irish Association of Law Librarians (BIALL) Working Party on Legal Information Literacy also put forward the view that the academic stage focused on content too much, so that there has been little space in it for focus on process, ie, how students learn what they learn. It should be noted that the CILEx study unit on legal research, which should circumvent some of these stage problems, is a comparatively recent course development which had not been available to all those who provided data. Consequently there was little commentary on it. One respondent did comment that the research task set did not reflect the reality of practice, as it was more demanding and more time consuming than most research undertaken in the office, which might raise the perennial problem of how far training is meant to replicate routine practice or challenge trainees’ capabilities.
2.100 A meeting with representatives of the British and Irish Association of Law Librarians (BIALL) Working Party on Legal Information Literacy highlighted a number of problems with trainees’
research practices which had been reported to BIALL as part of their research project into digital literacy. Trainees appeared to be generally unfamiliar with paper-based resources by comparison with digital resources. In addition they noted that trainees seemed to depend on one-hit-only searching: in other words they did not check thoroughly and contextually around their findings. They used Google extensively and their searches tended to be shallow and brief. Trainees were also increasingly unable to distinguish between the genres of legal research tools - the difference between an encyclopaedia and a digest, for example. They seemed to lack persistence and diligence in searching, as well as organisation. Digital literacy in general was also raised as part of the wider research and literacy issue. The BIALL Legal Information Literacy Statement (2012), together with the Society of College, National and University Libraries (SCONUL) Digital Literacy Lens, are key documents for the development of digital legal literacies. These provide a framework for a statement of outcomes, as well as for forms of learning, teaching and assessment in relation to digital literacy.
Summary
2.101 It follows from the above that many of the traditional elements of education and training are still relevant and valued. But there are a number of areas where there are gaps or, at least, where something more or better could be done. Key amongst these substantive subject areas is the perceived need to increase emphasis on professional ethics and legal values, on commercial awareness, and, arguably, commercial law. On the skills front, the need to enhance writing skills is almost universally acknowledged, as is a greater focus on drafting skills (particularly in the context of the LPC). There is a perceived need to enhance legal research at all stages, and to maintain a focus on communication and related soft skills, particularly post-qualification.
2.102 The findings on skills offer a number of challenges. The similar levels of relative importance of specific skills in the survey data suggests that all of the skills mentioned are important and therefore need to be addressed somewhere. Respondents were not able to suggest clearly where the teaching for each should best occur. CILEx has pointed out:
There is a temptation to revert to an ‘all you can eat buffet’ approach to skills. The review should consider carefully where the eventual cost burden of skills training will fall.
CILEx response to Discussion Paper 02/2012.
2.103 The issue of skills in the undergraduate degree seems particularly to divide opinion. Students and trainees participating in focus groups and interviews tended to want more skills and employability-based activities. This pressure may well increase in a more highly marketised higher education system. But the same message is not necessarily coming from practice, and academics are also divided:
And I can see that the more you start incorporating these skills into the degree within our sort of timetable, things like communication and mooting and legal skills and presentations and group work and possibly ethics - the more you start getting these skills in, the less room you have to teach philosophy, theory, rights, justice, the liberal arts kind of side of it. And it’s difficult because I can see why employers would want people coming out with these skills.
But then you squeeze the amount of room that’s left for what you consider to be the more traditional academic side of things.
Academic
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2.104 Comments from the Bar in particular raised concerns that a focus on ‘wishy-washy’ skills threatened to divert attention away from the core job of the law degree. This they saw to be to develop a high level of academic knowledge and intellectual (analytical) skills.