While professional negligence solicitors may appear to be in abundance, it is as well to understand that no two solicitors will be the same. Therefore, in this guide, we highlight and explain seven key features to consider when seeking to identify the best professional negligence solicitors to instruct in relation to your particular claim.
Introduction
This guide pre-supposes that you have already decided to instruct solicitors to advise you and/or to act on your behalf. If, however, you remain uncertain about whether to instruct professional negligence solicitors or not, you may find it helpful to read our related guide: Professional negligence claims – Do I need a solicitor?
The purpose of this guide is not to present you with a single ‘one size fits all’ solution to the question of who best to instruct. Clearly, the solicitors who may be best in one scenario will not necessarily be best in another. Moreover, the notion of what is ‘best’ can be highly subjective, being interpreted in different ways by different people.
Rather, in preparing this guide, our aim is to equip you with a better knowledge and understanding of the key features to have in mind while conducting your search, so that you are better placed to make an informed decision on what is best for your needs.
Doing your research
Which solicitors you ultimately instruct can have a significant bearing on both the outcome of your claim and your experience of it. If you have already suffered at the hands of one professional, you may well be cautious about instructing another and it is not unheard of for one professional negligence claim to turn into another. Therefore, limitation periods permitting, it is important to take the time to get it right.
Undertaking some independent research is rarely time wasted and the internet can be a good place to start. However, while the information available online is extensive, it can also be overwhelming and daunting. This is all the more so if you have not had to instruct professional negligence solicitors before, and do not know what to look out for.
Key features to consider
To assist you in this process, we set out below those key features that we consider you should have at the forefront of your mind.
1. Defendant and/or claimant solicitors
The majority of professional negligence solicitors work either exclusively for defendants or exclusively for claimants. This is largely due to the potential for actual and commercial conflicts of interest.
Those professional negligence solicitors acting for defendants will often be appointed by a professional indemnity insurer and be one of a select number of firms on a pre-appointed panel. Often, these firms will act for, and depend for work from, a number of different insurers. Rarely, therefore, will they accept instructions to act for a claimant whose claim may ultimately be notified to an existing insurer client or a potential insurer client.
Both for political and commercial reasons, those professional negligence solicitors who regularly act for claimants against professional policyholders will not usually be appointed by professional indemnity insurers. As a result, they have much less of an opportunity to act for defendants. Equally, and in many cases, they have no desire to do so, preferring to align themselves with the victims, rather than the perpetrators, of professional negligence.
As a consequence, it is relatively rare to find solicitors who have experience of acting for both claimants and defendants, let alone solicitors who act regularly for both claimants and defendants.
When looking to instruct an individual professional negligence solicitor, and as a first step, it is worth ascertaining if he or she acts exclusively for defendants or for claimants or, if they accept instructions from different sides, how regularly they do so.
Whether it is best to instruct a solicitor who acts only for claimants, in preference to one who acts on different sides, is certainly a factor to consider. Those solicitors acting on only one side may assert that they are more sympathetic to their client’s plight. Those solicitors regularly acting on different sides of claims may assert that they have the distinct advantage of being able to provide their clients with far greater insight and objectivity.
2. Experience
Professional negligence claims are renowned for both their complexity and their intricacy. Experience of dealing with them is therefore one of the most important factors to consider when appointing solicitors.
However, ascertaining the true experience of solicitors can be difficult. This is because most firms of solicitors with a litigation practice will list professional negligence amongst the myriad of litigation areas in which their employees ‘specialise’. This is notwithstanding that professional negligence claims are not an everyday occurrence and that the reality in many cases, is that experience is extremely limited, if it exists at all. Where some experience does exist, it is often part of a broader general litigation practice, covering such areas as personal injury, debt recovery or landlord and tenant disputes.
While historically solicitors (and other legal professionals) were admired for the breadth of their practice, an ever-increasing body of law has turned the tables on this viewpoint. Now it is more usual, and perhaps more logical, to observe that the more practice areas advertised by solicitors, the less safely it may be assumed that they are a specialist in any one of them.
In ascertaining experience, clarity should also be sought as to the experience of the individual who will actually be undertaking the work. In some instances, and to their dismay, clients discover that the person working on their claim is not the person with whom they were first in contact but a junior solicitor or, worse still, a ‘lawyer’ with limited or no professional qualifications at all. While in these situations supervision by an experienced solicitor is all the more critical and may offer some reassurance, it can also have adverse cost implications too (as addressed further below).
Therefore, in identifying the best professional negligence solicitors for you, you might well wish to ask for examples of the cases the person likely to be handling your claim has previously worked on and is currently working on. You might also think carefully before instructing a firm of solicitors simply on the basis that you, your company or your family have habitually retained them to act on other legal matters in the past.
3. Professional & client endorsements
Endorsements from independent legal directories, such as the Legal 500 or Chambers & Partners, offer additional confirmation of the expertise and standing, not just of professional negligence solicitors but solicitors generally. However, the liberal usage of such endorsements by some firms, means that a certain amount of caution should be exercised before relying on them.
In some instances, the endorsement or quotation displayed is in fact an endorsement of the firm, not the individual solicitor being made available to handle your claim. In other instances, the endorsement may be personal to the solicitor in question but relate to a different area of practice to the one in which they are to be potentially instructed.
You should also note that because of the length of time it takes to compile the directories, their content is inevitably based on historic information and testimonials. In some cases, these can be in excess of 12 months behind.
Other endorsements, such as client testimonials found on websites and reviews posted on Google, can also provide an indication of expertise, as well as client experience. However, you should not take these endorsements at face value and should be careful to note whether they are specific to the particular solicitor or team of solicitors you are considering.
4. Underlying subject matter
A conundrum for some people wishing to pursue a professional negligence claim, is whether it is best to instruct a solicitor who specialises in the underlying area of law from which the claim arises, or to instruct a solicitor who specialises in professional negligence. For example, if you have suffered financial loss as a result of a negligent conveyance, should you instruct another conveyancing solicitor or a professional negligence solicitor to pursue your claim?
While both may be able to offer knowledge and insight that is in some way relevant, we would strongly suggest instructing the latter. If technical input or practitioner experience is required this can (and usually is) sourced from an expert witness, particularly if the professional considered to be at fault is not a solicitor.
That said, where specialist legal knowledge is required, it can be an advantage to instruct a professional negligence solicitor who has ready access to, and therefore the ability to consult with, colleagues practising in the area of law concerned.
5. Physical location
Advances in travel and modern technology mean that geography has become much less relevant than it once was. Nevertheless, when it comes to purchasing legal services there can still be an instinctive desire to instruct a local solicitor. While instincts should not be ignored lightly, neither should they be followed blindly and without assessment. In our experience, and when probed, the notion of what is regarded as ‘local’ has not been fully considered, and nor has the rationale for imposing it as a limiting criterion.
Geographically, some may consider ‘local’ as being within either their home town, city or county. Others may regard it as their own region, or indeed their own country. When considered, some may foresee instructing solicitors within close physical proximity as being likely to make it easier to attend meetings. Others may assume that it will be more likely that the solicitors will be familiar with the local judiciary.
However, for the vast majority of professional negligence claims, the reality is that ‘in person’ meetings are very rarely required and communication by telephone, email and indeed video link are faster and more efficient. It is also the case that the majority of claims are resolved without court proceedings, with only a tiny percentage ever reaching trial. Further, where meetings are required, and unless the geography is extreme, the solicitor, client, expert and/or counsel, simply travel.
Therefore, while geography is a factor to consider, our experience is that in the vast majority of cases it is one that is considerably less important than others and is not one that should itself determine which are the best professional negligence solicitors to instruct.
6. Hourly rates
In contrast to location, cost is often an important factor in deciding which solicitors to instruct. Whether they are acting under a private retainer or under a ‘no win, no fee’ agreement, most professional negligence solicitors will calculate their fees based upon an hourly rate. However, as solicitors are not currently required to advertise their rates, and very few do, this can make a price comparison more difficult.
Rates can vary significantly and tend to be most heavily influenced by the level of experience the solicitor has. This means that, hour for hour, those at the junior end are comparably less expensive than their more senior colleagues. Rates can also be influenced by location, with solicitors working in the primary legal and financial centres (Birmingham, Bristol, Leeds, London & Manchester) charging more than those in secondary cities and towns. Finally, rates can be affected by the structure of the law firm itself, so that traditional firms with greater operating costs tending to charge higher rates than their new-model counter-parts.
However, it is important not to confuse cost with value. In many firms, junior solicitors (and increasingly unqualified paralegals) are employed to work on claims at what may appear at first blush to be an attractive comparable rate. However, when comparing rates, you should be aware that as many junior solicitors (and paralegals) are learning on the job, they will often take longer to perform a task and will invariably require a greater amount of supervision. In turn, this can lead to greater expense and make the perceived rate saving illusory. Equally, and due to inexperience, the compensation ultimately recovered by junior solicitors (and paralegals) can be at a lower level than might otherwise have been achievable. As a consequence, the net cost to you as the client can be much greater than you anticipated, again making the perceived economy a false one.
Although experience is extremely valuable, it comes at a price and should be balanced against both affordability and proportionality. If, for whatever reason, you do not have, or cannot secure, the resources needed to instruct an experienced solicitor, or if the value of your claim is very modest, then a junior solicitor may well be the best option for you, notwithstanding the potential cost implications highlighted above.
Therefore, in summary and when considering hourly rates, it is important not to confuse cost with value and to be clear on what is both affordable and proportionate to your claim.
7. Personal chemistry
Personal chemistry is perhaps the most subjective of all the considerations, but no less important for it. Professional negligence claims can be very stressful for those involved. They can also involve a high degree of trust, as well as an element of collaboration, sometimes over an extended period of time. For all of these reasons, you might favour a professional negligence solicitor who is able to provide you with a service that is both personal and tailored, in preference to approaching the many, frequently faceless, claims management companies and large-scale litigation practices, whose adverts are prolific on the internet and across social media.
Equally, you should satisfy yourself, so far as it is possible to do so, that the solicitor you are intending to instruct is someone you feel comfortable communicating with and can be confident in.
Conclusion
Ascertaining the best professional negligence solicitors to instruct will require you to consider a number of features. Those listed above are key in our view, but the list in not exhaustive and others may come into play, depending on your circumstances.
We very much hope that, equipped with the information in this guide, you will feel more confident in identifying and selecting the best solicitors for you and that you are able to achieve a more satisfactory outcome to your claim as a result.
Further legal assistance
We do act for clients nationwide, to resolve claims against a wide range of professionals. If you would like to arrange an initial consultation with us, free of charge or commitment, please do not hesitate to contact us on 0800 195 4983 or by email at mail@pnclegal.com.
