It’s your operation


This week, surgeons are being asked to publish their ‘survival’ figures.

Outcomes following an operation may, do not necessarily reflect the performance of it. What about the Bar, is the same is true?

Some cases are won or lost by the advocates. More often, outcomes are less amenable to objective analysis – depending on the facts of a case, the evidence in support, the reliability of witnesses, the experience of the judge, and the interpretation of law – a matter on which lawyers and judges habitually disagree.

Over my 34 years of winning cases, and occasionally losing, I have found that rational or empirical approach to gauging success is not the best way to establish performance. Whilst ‘the outcome’ is a measure of ‘performance’, the illusive ‘outright win’ is increasingly rare outside the jury trial. Especially within the family courts, ‘wins’ are hedged with compromise – making an objective assessment from outcomes, impossible.

The faithful reader will recall an earlier blog on QASA. There Lord Justice Moses (the blogger’s favourite) criticised the barrister assessment by judges, saying  that the advocate’s desire not to offend a judicial assessor would lead to defensive advocacy. “The need to be marked, to move up a level or maintain one’s grade is deeply inimical to the proper relationship between advocate and judge”.

Even if  judged by the judges, QASA simply categorise lawyers into bands of practice, rather than speaking to the real question of comparative quality of service. Publications, such as ‘Legal 500’ (of which the blogger was a starred entry) have had a go a this, with their “good fighter”, “doughty opponent”, “a determined advocate” categorisation. But does the entry fee to the publication determine the entry? Whilst the blogger did not pay for his accolade, we know of those who in various ways have paid  for theirs.

With the exponential growth in the number of court advocates, the development of direct public access to the bar, and the decreasing support of a solicitor’s representative at court, there is no adequate way of ensuring a reliable peer assessment of advocates. Even if there were, advocacy is just one part of a more comprehensive service provided by the lawyer.

The blogger believes that the most reliable assessment come from ‘client satisfaction rating’.

Most clients know instinctively whether they have a good case or not, and those that do not, need to be told by their lawyer. Expectations should be managed competently, so that, whilst ‘win or lose’ outcomes remain important, they are not the sole criteria of success.

I have sought client feedback over the last seven years in almost every case I have undertaken, and often throughout my handling of the case. At key stages – usually after an initial meeting, and at the conclusion of the case – I test out the client’s responses to my service by simple criteria.

  • ‘Before we met, on a scale of 1 – 1o, how did you feel about your case?’
  • ‘On the same scale, now that we have spoken, how are you feeling about your case?’
  • ‘To what do you attribute the difference in your scores?’
  • ‘On the same scale, how adequately am I meeting your needs?’
  • ‘On what basis do you arrive at the score?’

Some lawyers may deprecate this approach, on the basis that it is ‘self-serving’, unscientific, or susceptible to manipulation. Of course, it is difficult to monitor. Others may fear the outcome of such interrogation, especially following a lost case.

My experience has been almost totally positive from asking the questions at appropriate moments. It demonstrates sensitivity to the client’s feelings about their case and representation. It says, “I am listening to you, and want to take on board what you have to say”.

It also encourages the sort of feedback that is commonly sought by other service providers. The receiver of feedback can learn from what is said – to make improvements in their practice for the next time. For the giver, it highlights and coalesces their sense of satisfaction with the service they have or are receiving.

Over the next five years, we as individual practitioners (rather than the profession as a whole) will need to demonstrate and justify the quality of our services. On a web search, clients will expect to see evidence of our performance; and the Bar Standards Board and Solicitors Regulation Authority will require proof of what we assert.