What is valued and required by the legal services sector?

2.47     In order to assess attitudes to existing education and training schemes and to identify the knowledge, skills and attributes currently valued and required by the legal services sector, the report draws on:

  • responses to attitudinal questions in the online survey about the various stages of education and training;
  • responses to online survey questions regarding the importance of various knowledge, skills and attributes;
  • qualitative data from focus groups and interviews;
  • data on what consumers value or expect from legal service providers;
  • analysis of solicitors’ working time.

Attitudes to current legal services education and training

2.48     There was a range of levels of support for existing LSET structures among practitioners. There were, however, important differences between established practitioners and those seeking entry.

2.49     Looking at the main stages of LSET for the professions of solicitors and barristers, 79% of all respondents favoured retention of the QLD. The majority also saw the need to maintain both its ‘liberal’ and ‘professional preparation’ functions; as one solicitor respondent to the online survey observed: ‘There must be scope for law as a liberal art, as well as a career, and a balance must be struck’.

2.50     This view was broadly reflected in the responses to two contrasting items in the online survey, which asked whether respondents thought the law degree should (i) primarily adopt a ‘liberal arts’ approach focusing on understanding law in context, or (ii) focus on the knowledge and skills required for the legal profession. A majority of all respondents felt that the degree should not just be a liberal arts degree, and a smaller majority took the view that it should not be professionally-focused either. These overall figures, however, hide some quite substantial variations between the different professional groups, notably a substantial ‘academic’ bias to the Bar response, and a stronger vocational bias amongst CILEx members (Table 2.1).

 

Table 2.1: Law degrees: ‘liberal arts’ or ‘professional preparation’?

Weighted (barristers, solicitors, CILEx members, and weighted average) and unweighted (all respondents).

‘Undergraduate law courses should be primarily liberal arts degrees that look at the law in a rich cultural context.’

Missing Completely disagree Disagree Somewhat disagree Neither agree nor disagree Somewhat agree Agree Completely agree
Barristers 1.0% 17.0% 24.4% 13.1% 10.6% 17.0% 12.8% 4.2%
Solicitors 0.6% 17.8% 27.9% 17.2% 13.5% 11.3% 8.3% 3.4%
CILEx members 4.9% 10.5% 30.9% 28.4% 16.0% 4.9% 3.7% 0.6%
Weighted Average[1] 2.1% 15.2% 28.1% 20.1% 13.7% 10.4% 7.7% 2.6%
All Respondents[2] 1.5% 16.7% 26.6% 17.5% 11.8% 13.3% 8.9% 3.6%

 

‘Undergraduate law courses should be primarily practically focused on the skills and knowledge needed to work in the legal professions.’

Missing Completely disagree Disagree Somewhat disagree Neither agree nor disagree Somewhat agree Agree Completely agree
Barristers 0.3% 26.4% 34.4% 12.5% 4.5% 9.0% 7.4% 5.5%
Solicitors 0.3% 11.4% 26.2% 21.6% 7.7% 15.7% 12.3% 4.6%
CILEx members 4.3% 1.9% 7.4% 8.6% 8.0% 30.9% 30.2% 8.6%
Weighted Average 1.7% 11.4% 21.7% 15.3% 7.1% 19.4% 17.3% 6.2%
All Respondents 1.0% 14.0% 24.2% 15.8% 6.1% 17.5% 15.0% 6.4%

 

2.51 This is also reflected in the qualitative data where barristers were more likely than other respondents to be critical of the introduction of practical skills into the academic curriculum, at the perceived expense of academic rigour. In respect of this issue it is also important to consider the content of the QLD and GDL.

What are the appropriate ‘foundations’ of legal knowledge?

2.52     Most systems of legal education and training have evolved based on a ‘building blocks’ approach, which assumes that there are certain forms and areas of legal knowledge that are foundational or fundamental. In the broad-based professions (the Bar and solicitors and, to some extent, CILEx members), this is particularly reflected in the requirement for the seven Foundation subjects. But are these still considered to be the most appropriate building blocks?

2.53     The argument for retention of the existing Foundation subjects appears to be based on essentially two premises:

a) Some prescription of content is necessary/desirable (eg to ensure basic consistency of coverage across education and training providers);[3]

b) The currently prescribed content represents a reasonable proxy (to paraphrase the Bar Council’s response to Discussion Paper 01/2012) for the necessary underlying knowledge.

2.54     Each of these premises is open to challenge, though there appears to be little appetite across the sector for removing prescription entirely – as the majority of responses to Discussion Paper 01/2012 demonstrated. However, the current Foundation subjects may still be too wide or too narrow or they may be less appropriate, given the new regulatory context created by the LSA 2007 (cp Legal Services Institute, 2010).[4]

2.55     If prescription were to be retained on similar terms, are the ‘right things’ being prescribed? Overall, both qualitative and quantitative data tend to support the status quo. In the quantitative analysis, support for the existing Foundation subjects is notable amongst the Bar, 80% of whom regarded the existing ‘core’ as providing a (more or less) sufficient knowledge base for the academic stage.[5] This view was also held by a majority of solicitor respondents.[6] Table 2.6 sets out the findings in more detail:

 

Table 2.2: The practical adequacy of the Qualifying Law Degree

Weighted (barristers, solicitors, CILEx members, and weighted average) and unweighted (all respondents).

‘The core subjects prescribed within the Qualifying Law Degree (QLD) provide students with a sufficient knowledge base.’

 

Missing Completely disagree Disagree Somewhat disagree Neither agree nor disagree Somewhat agree Agree Completely agree
Barristers

3.5%

1.3%

7.7%

10.9%

8.4%

27.7%

34.4%

6.1%

Solicitors

4.6%

2.2%

10.8%

16.9%

8.6%

28.6%

25.2%

3.1%

CILEx members

15.4%

1.9%

4.9%

13.0%

16.0%

27.8%

19.1%

1.9%

Weighted Average

8.0%

1.9%

8.2%

14.3%

11.1%

28.1%

25.2%

3.3%

All Respondents

6.0%

2.0%

8.4%

13.5%

9.3%

28.0%

27.7%

5.2%

 

2.56     The majority of the key stakeholders, including, for example, the Council of the Inns of Court, the Law Society and the Society of Legal Scholars, share the view that the existing Foundation subjects remain a good proxy, albeit with some qualification.

2.57     As the Law Society response to Discussion Paper 02/2012 indicates,[7] there were suggestions for additions to the Foundation subjects. The range of subjects proposed was diverse, including professional ethics, company or commercial law, (these being the most common suggestions) international law, comparative law, information technology law, and also, on the private plight side, some pleas for more emphasis on ‘social welfare’ areas such as housing law. As is reported in Research Update 12/02, focus group participants also debated the possibility of an increased recognition of divergence between English and Welsh law.

2.58     On the other hand, concerns were also expressed by a range of respondents as to the effect of extending the core. These concerns focused on the risk of diluting emphasis on the existing Foundation subjects (especially if new knowledge components were added to a growing list of skills), reducing depth and intellectual development in favour of breadth, and potentially impacting on the GDL, which has to cover the Foundation subjects in a much shorter time frame.[8] Any extension could also have implications for the CILEx route.[9]

Attitudes to vocational training

2.59     Turning to the major professional courses (LPC and BPTC), a minority of respondents (including trainees) amongst the most relevant occupational groups took the view that the LPC and BPTC are positively unfit for purpose – 29.5% and 31.1% of solicitors and barristers respectively.[10] But there was no strong endorsement either. Thus, 45% of solicitors responding to the survey agreed that the LPC is ‘fit for purpose’,[11] while 38.5% of barristers so agreed with regard to the BPTC.[12]

2.60     A range of opinion also comes across in the qualitative data, where the LPC attracts a range of epithets from ‘superb’ to ‘pointless’. From many of the comments it is clear that the LPC is affected by the growing fragmentation of practice (discussed in Chapter 3). This is reflected in debates about the appropriateness of its breadth and depth, and whether it is intended to provide only a general introduction to practice, or provide a springboard to more specialised subject matter and immediate fee-earning.[13] In this context, it is notable that 43% of solicitor respondents to the online survey felt that the attempt to retain a ‘common core’ course is outmoded. This is not shown in stakeholder responses to Discussion Papers, where a majority indicate approval of the course as it stands. The City sector, represented in some of these responses, has been best placed to take advantage of the flexibility the SRA has built into the system to ‘re-engineer’ the LPC to its own needs. Other groups need to work out how best to do this for themselves and course providers need to be encouraged to work with them in order to satisfy their needs.

2.61     The negative response to the BPTC probably needs to be viewed with some caution. The BPTC has only been in operation since 2010/11, so the majority of LETR research data from those in practice are likely to reflect experiences and perceptions of the BVC. Although some student and academic responses clearly did refer to the BPTC, these were not sufficiently numerous to warrant separate analysis. The Wood Review (BSB, 2008) acknowledged that the Bar had not been effectively brought into understanding and engaging with the BVC, and this effect may still be visible. It is too soon to say whether the BPTC has effectively escaped from any limitations of its past. As with the LPC, qualitative views varied widely from the very positive, through to ‘not completely useless’ and to ‘positively sclerotic and completely inadequate’. Institutional responses tended to the view that any significant problems (except cost) had been addressed by the Wood Review.

2.62     By contrast, attitudes to the training contract and pupillage were markedly different, with 38% of solicitors ‘completely disagreeing’ with the abolition of the training contract. An emphatic 58% of barristers similarly ‘completely’ disagreed with the abolition of pupillage.[14]

2.63     However, those who may have been unable to find a training contract or pupillage, or who face the prospect of attempting to find one, have unsurprisingly negative views about how the current system works. The quantitative data do not show whether this view is driven by a fear of exclusion from the profession, or a more sophisticated perception that paralegal or other forms of work experience should be equally permissible as a route to qualification. Elements of the latter view do emerge from the qualitative material.

 

Table 2.3: Removing the training contract and pupillage: responses of law students/paralegals

Unweighted data.

‘The training contract should be abolished.’

Missing Completely disagree Disagree Somewhat disagree Neither agree nor disagree Somewhat agree Agree Completely agree
Paralegals 5.9% 8.8% 14.7% 8.8% 8.8% 14.7% 11.8% 26.5%
Law Students 13.4% 9.0% 13.4% 7.5% 16.4% 6.0% 4.5% 29.9%

 

‘Pupillage should be abolished.’

Missing Completely disagree Disagree Somewhat disagree Neither agree nor disagree Somewhat agree Agree Completely agree
Paralegals 26.5% 5.9% 14.7% 2.9% 17.6% 11.8% 5.9% 14.7%
Law Students 9.1% 12.1% 16.7% 10.6% 13.6% 6.1% 7.6% 24.2%

 

Attitudes towards CILEx education and training

2.64     Finally, it is notable that CILEx members and their employers for the most part emerge as well-satisfied with their training process. LETR qualitative data indicate that respondents were better informed about the CILEx route than about paralegal options and perceived it to be of utility, particularly by providing more tailored training for smaller firms (which might not be able to offer training contracts). The CILEx route also found some favour among some of the respondents from both in-house practice and local government.

2.65     CILEx members were also positive about their route in terms of accessibility, particularly for mature students – a view that was also advanced by employers. The pathway from Fellowship/Chartered status to the solicitors’ qualification was viewed by some employers as a valuable way of increasing the diversity of the solicitors’ profession (see, eg, CLLS response to Discussion Paper 01/2012). There were some doubts about the suitability of the CILEx route (as noted above) for those who were not already in legal employment.[15] The majority of trainee legal executives appear to progress from secretarial or paralegal work and thus have a familiarity with the firm culture and office practice, which gives them some advantage relative to new trainee solicitors. Although a number commented on the challenges of an ‘earn while you learn’ approach, in terms of the difficulties of distance learning and juggling studying with other commitments, most respondents felt the system worked well for them, and were keen that it be strengthened and retained.

2.66     Positive views about the effectiveness of work-based approaches to education and training were expressed by the smaller professions which adopted them. The integration of workplace and classroom learning will be considered further in Chapter 5.

Professional knowledge

2.67     Table 2.4 shows the importance attributed in the online survey to a list of different knowledge elements by the three largest groups of professional respondents, (separately and as a weighted average) and, in the final column, for all respondents to the survey. The low response rate from the majority of smaller professions has meant that the online survey does not consistently provide robust evidence of the knowledge priorities of those professions. The items are presented in rank order according to the proportion of respondents who designated the topic ‘somewhat important’ or ‘important’, with the most highly rated item at the top.

2.68     It can be seen that legal ethics and procedure came out above all other areas, having been rated ‘important’ or ‘somewhat important’ by over 95% and 94% of respondents, respectively.[16] Contract law, the next highest rated item, was rated important by 85% of respondents. The items below criminal law (50.3%) were all rated ‘important’/somewhat important’ by fewer than 50% of respondents overall.

 

Table 2.4: Ranking of importance of knowledge items by legal services providers

Weighted (barristers, solicitors, CILEx members, and weighted average) and unweighted (all respondents).

 

Ranking Barristers Solicitors CILEx members Weighted average of three largest professions All respondents (average)
1 Procedure Legal and Professional Ethics Procedure Legal and Professional Ethics Legal and Professional Ethics
2 Legal and Professional Ethics Procedure Legal and Professional Ethics Procedure Procedure
3 Contract Law Contract Law Contract Law Contract Law Contract Law
4 Tort Law Tort Law Tort Law Tort Law Tort Law
5 Human Rights Business Land Law Business Equity
6 European Law Equity Equity Equity Business
7 Equity Land Law Business Land Law European Law
8 Alternative Dispute Resolution European Law Alternative Dispute Resolution Alternative Dispute Resolution Land Law
9 Public Law Alternative Dispute Resolution Human Rights Human Rights Alternative Dispute Resolution
10 Land Law Human Rights Public Law European Law Human Rights
11 Criminal Law Public Law European Law Public Law Public Law
12 Business Criminal Law Criminal Law Criminal Law Criminal Law
13 Jurisprudence Jurisprudence Jurisprudence Jurisprudence Jurisprudence
14 International Law International Law Socio-legal Studies International Law International Law
15 Psychology Psychology International Law Psychology Psychology
16 Socio-legal Studies Socio-legal Studies Psychology Socio-legal Studies Socio-legal Studies

 

2.69     Another feature of this table is that it highlights considerable commonalities between the three larger professions in terms of the knowledge areas that are considered fundamental, with few differences emerging across the top eight items.

2.70     Two areas are also often mentioned as lacking among new recruits in interviews and focus groups – ethics/professionalism and ‘commercial awareness’. These are considered first.

Ethics and professionalism

2.71     The importance of ethics is signalled, to a high degree, throughout the qualitative data. Professional ethics, and its regulation, are seen as a critical defining feature of professional service. For many practitioners, the growing commercialisation of practice, including the advent of ABSs,[17] threatens, as one solicitor put it, the profession’s ‘moral compass’. These concerns were expressed across most of the sector, and not just by practitioners:

… they need high ethical standards. And I think again the way it is becoming a business and not a profession is meaning that those matters are being neglected.

Academic

The principal change is that all lawyers (including the self employed) now seem to be regarded as running a business, rather than conducting a profession.

Chancery Bar Association response to Discussion Paper 01/2012

Our concern, I think, is with commercial providers coming into the legal market that they will adopt a very business attitude to the delivery of legal services, just like any other commodity and will lose the professional ethos of really putting your client first.

Solicitor

2.72     A striking feature of many of these responses is the extent to which ethics and ‘business’ appear incompatible. Solicitors and costs lawyers in particular foresaw a growing need to ‘hold their own’ with (cheaper and possibly more eager to please) unregulated or differently regulated competitors. Some saw their professional ethos and regulated status as part of the means by which that could be achieved, but relatively little of the discussion of ethics and professionalism in the qualitative material framed it in terms of competitive advantage.

2.73     Turning specifically to the role of education and training, it is not surprising in this context that the issue is not whether ethics and professionalism should be taught and developed through LSET, but how much, and when. In response to a specific question in Discussion Paper 02/2012, there was support for more and earlier emphasis on legal values and ethics across the regulated sector. In the context of the undergraduate degree, however, this did not amount to extensive support for ethics to become a separate Foundation subject.

‘Commercial awareness’

2.74     In the online survey 68.9% of practitioners indicated that knowledge of the business context is important or very important to their work, ranking it above a number of areas of ‘core’ legal knowledge. This emphasis on ‘commercial awareness’ in training has been a recurrent finding in the research, though support is not uniform. Members of the Bar, public sector and personal plight[18] lawyer respondents have commented, sometimes strongly, to the contrary. Although this is considered by many respondents to be a significant deficiency in new recruits, the nature of the deficiency is not always clearly articulated, and respondents were divided on when that deficit (whatever it is) should be addressed.

2.75     The careers advisers’ survey offers some assistance on what, from their experience, employers are looking for when they talk about ‘commercial awareness’. This suggests that commercial awareness is a composite concept that may comprise a broad body of knowledge, as well as a number of associated skills and attributes:

  • awareness of the sector and the clients’ business; having an interest in the sector so as to be able to communicate with clients;
  • appreciation of law as a business: that firms (etc) are profit-making entities; marketing and networking; how law firms are run;
  • an ability to recognise clients’ commercial objectives rather than proposing ‘pure law’ solutions;
  • wider knowledge of commercial and financial subjects: understanding financial products; corporate structures; markets and sectors; knowledge of the wider economic environment and business issues in the news;
  • general knowledge of current world and political affairs;
  • numeracy and ability to interpret financial data; office skills and use of specific tools such as Microsoft Excel;
  • personal attributes of common sense, independent thinking; critical thinking – not accepting views or approaches at their face value.

2.76     There may be grounds for saying, especially in the context of solicitors’ training, that some commercial awareness potentially falls through the gaps between areas studied. LPC outcomes require students to ‘understand the organisation, regulation and ethics of the profession’ with specific reference to the principles of the SRA Code, and to ‘be aware of the financial, commercial … priorities and constraints’ in identifying and achieving clients’ objectives, but these are narrower and more instrumental than the range indicated above (SRA, 2011b).[19] Though some of the ‘bespoke’ LPCs appear to use law firm staff to develop knowledge and understanding beyond this point, through either the formal or informal curriculum, this is not universal. While corporate, commercial and financial law options are extremely popular in law school, these also may not develop the contextual understanding that ‘commercial awareness’ implies.

2.77     Consequently, perhaps, this is also an area where the more aware students appear to be developing knowledge and skills outside the formal curriculum. Numerous university student unions, for example, have ‘finance societies’ which are open to students from all disciplines who are interested in finance and the financial markets, and whilst some of these are geared more to those who are looking for careers in the finance sector, others have a broader perspective. In a smaller number of institutions, (the LSE and Warwick, for example) these have spawned specific ‘law and finance societies’ to support students in developing the knowledge they need.[20]

Skills and attributes

2.78     Table 2.5 shows the ranking by people working within the different legal professions of the importance of various skills and personal attributes. Responses to the list of skills and attributes are less diverse than in relation to knowledge – the first 18 items were all rated important or somewhat important by over 90% of respondents, though there is some interest in areas where there are clear differences, such as ‘Oral advocacy’. This is probably explicable by the more generic character of these skills and attributes when compared to the greater specificity of legal knowledge, but it also means that it would not be appropriate to place too much weight on the precise rank ordering of items in this table.[21]

 

Table 2.5: Ranking of importance of skills and attributes by legal services providers

Weighted (barristers, solicitors, CILEx members, and weighted average) and unweighted (all respondents).

 

Ranking Barristers Solicitors CILEx members Weighted average of three largest professions All respondents (average)
1 Communicating in Person Identifying and Understanding Problems Explaining Legal Matters Explaining Legal Matters Explaining Legal Matters
2 Identifying and Understanding Problems Solving Problems Honesty and Integrity Communicating in Person Communicating in Person
3 Explaining Legal Matters Attention to Detail Dealing with Difficult Issues or People Identifying and Understanding Problems Identifying and Understanding Problems
4 Solving Problems Writing and Drafting Attention to Detail Solving Problems Attention to Detail
5 Legal Research Communicating in Person Writing and Drafting Attention to Detail Honesty and Integrity
6 Attention to Detail Explaining Legal Matters Communicating in Person Honesty and Integrity Writing and Drafting
7 Working to Achieve Clients’ Objectives Working to Achieve Clients’ Objectives Working to Achieve Clients’ Objectives Writing and Drafting Working to Achieve Clients’ Objectives
8 Honesty and Integrity Honesty and Integrity Developing and Maintaining Good Relationships with Clients Working to Achieve Clients’ Objectives Solving Problems
9 Common Sense Keeping Clients Informed Responsibility Dealing with Difficult Issues or People Developing and Maintaining Good Relationships with Clients
10 Writing and Drafting Developing and Maintaining Good Relationships with Clients Identifying and Understanding Problems Developing and Maintaining Good Relationships with Clients Dealing with Difficult Issues or People
11 Dealing with Difficult Issues or People Common Sense Solving Problems Responsibility Responsibility
12 Developing and Maintaining Good Relationships with Clients Responsibility Keeping Clients Informed Legal Research Common Sense
13 Responsibility Dealing with Difficult Issues or People Legal Research Common Sense Legal Research
14 Resilience and Coping with Stress Legal Research Initiative Keeping Clients Informed Resilience and Coping with Stress
15 Oral Advocacy Negotiation Resilience and Coping with Stress Resilience and Coping with Stress Keeping Clients Informed
16 Negotiation Resilience and Coping with Stress Common Sense Initiative Initiative
17 Initiative Initiative Communicating Electronically Negotiation Communicating Electronically
18 Good Personal Presentation Communicating Electronically Effective Teamwork Communicating Electronically Good Personal Presentation
19 Keeping Clients Informed Good Personal Presentation Negotiation Good Personal Presentation Negotiation
20 Communicating Electronically Effective Teamwork Good Personal Presentation Effective Teamwork Effective Teamwork
21 Commitment to the Profession Project Management Commitment to the Profession Commitment to the Profession Commitment to the Profession
22 Effective Teamwork Commitment to the Profession Project Management Project Management Oral Advocacy
23 Project Management Oral Advocacy Oral Advocacy Oral Advocacy Project Management
24 Social Responsibility or Pro Bono Work Social Responsibility or Pro Bono Work Social Responsibility or Pro Bono Work Social Responsibility or Pro Bono Work Social Responsibility or Pro Bono Work
25 Ability to Work in Another Language Ability to Work in Another Language Ability to Work in Another Language Ability to Work in Another Language Ability to Work in Another Language

 

2.79     The ‘Solicitors and their Skills’ exercise provided a further instrument to assess the relative importance of different skills and tasks in terms of the proportions of time spent on these, on average, by solicitors. In 1991, as described in Chapter 1, research was carried out on the proportion of time spent by solicitors on different activities (Sherr, 1991).[22] By repeating this exercise on the actual work practices of solicitors in 2012 it was possible to make comparison between the work practices of solicitors 20 years apart. As a result it also offered a means of checking whether the use or balance of skills had changed significantly over time. Table 2.6 below compares the proportions of time spent on different activities in 2012 and in 1991.

 

Table 2.6. Proportions of time spent on different activities in 2012 compared with the 1991 study

1991

2012

Client Handling

13.0%

22.8%

Non-billable Work/Administration

22.0%

15.7%

Drafting

11.0%

14.5%

Reading and Assessing

9.0%

12.6%

Supervising or Being Supervised, Discussions with Co-workers

7.0%

8.4%

Other

4.0%

2.6%

Travelling

6.0%

2.6%

Legal Research

2.0%

2.5%

Negotiation

5.0%

2.1%

Advocacy

3.0%

0.6%

Conference with Counsel

2.0%

0.5%

Taking Oaths/Swearing Affidavits, etc

0.0%

0.0%

Dead Time

16.0%

15.0%

 

2.80     It is apparent that the relative proportions of time spent on most of the tasks are strikingly similar in the two time periods. The time spent in handling clients seems to have actually grown rather than diminished in the last 20 years. Drafting is the second most time intensive activity, followed by reading and assessing documents, and then the work of supervision or being supervised. Excluding travel (which seems to have reduced somewhat) legal research continues to occupy a very small proportion of time, and negotiation and advocacy both seem to take up less time in 2012.

2.81     The addition of more non-lawyer managers into many law firms might well have assisted the reduction in time spent on non-billable work and administration. A greater concentration on efficiency may have affected the ‘dead time’ which builds up jumping between tasks.

2.82     More detail can be presented by comparing what is happening in the different types of firm. Six firms were involved in this research including two of the largest commercial firms, a mid-range city firm, and three firms dealing more with personal plight work. The profiles in Table 2.7 (below) show the results. For all of them the predominance of client handling over other tasks is again apparent, but as a proportion of time it is especially marked in one of the largest commercial firms and in one of the legal aid firms. The proportion of time spent drafting is relatively consistent across the board, but the amount of time spent reading and assessing, on supervision, legal research and negotiation is more varied between different firms.

2.83     With such a small quantitative change overall in the average time spent on these core skills and tasks, it seems that there is something ineffable about them. Perhaps the nature of legal work and the lawyering process tends to dictate these proportions of time spent. Or, less charitably, perhaps legal services education fosters continuity rather than change, or lawyers are not trained to use ingenuity or lack impetus to work in radically different ways. But it does point to something relatively unchanging about the fundamental tasks and skills of solicitors, and suggests that these areas of skill still need to be taught. Though this report tends to question, in other respects, the lack of change in the content of LSET over the period considered, these findings seem to suggest that the core nature of legal activity itself is relatively unchanging. Though these findings cannot predict what a repetition of this exercise in another 20 years might produce, drawing these data together with Table 2.5 the continuing centrality of communication, client-handling and problem-solving skills is readily apparent.

 

Table 2.7: Proportions of time spent in 2012 in different kinds of practice>

Non-billable Work/ Administration Advocacy Conference with Counsel Client Handling Supervising or Being Supervised, Discussions with Co-workers Drafting Legal Research Negotiation Taking Oaths/ Swearing Affidavits, etc Reading and Assessing Travelling Other Dead Time
Small Legal Aid Firm

12.6%

3.4%

0.0%

21.2%

6.5%

12.1%

1.7%

3.1%

0.1%

7.2%

7.9%

9.3%

15.0%

Mid-Sized Legal Aid Firm

21.5%

1.4%

0.8%

28.3%

3.7%

10.9%

0.1%

0.5%

0.1%

7.1%

6.7%

4.0%

15.0%

Mid-Sized General Practice Firm

33.6%

0.0%

0.0%

20.9%

8.1%

11.1%

0.0%

5.0%

0.0%

6.3%

0.0%

0.0%

15.0%

Mid-Sized City Firm

16.7%

0.0%

0.1%

16.7%

8.5%

15.3%

4.7%

1.1%

0.0%

20.2%

1.8%

0.0%

15.0%

Large City Firm

10.3%

0.4%

0.9%

29.4%

9.3%

17.1%

1.9%

2.4%

0.0%

8.6%

0.4%

4.5%

15.0%

Large City Firm

10.2%

0.0%

0.0%

15.4%

17.3%

15.6%

3.2%

7.7%

0.0%

14.6%

0.0%

1.1%

15.0%

Average of Firms

17.5%

0.9%

0.3%

22.0%

8.9%

13.7%

1.9%

3.3%

0.0%

10.7%

2.8%

3.1%

15.0%

Average of Individuals

15.7%

0.6%

0.5%

22.7%

8.4%

14.6%

2.6%

2.2%

0.0%

12.8%

2.6%

2.6%

15.0%

 

Communication skills

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.

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.[23] 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.[24]

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.[25]

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?’

Provider Very satisfied Fairly satisfied Neither satisfied nor dissatisfied Fairly dissatisfied Very dissatisfied Don’t know/ can’t remember Not applicable
Solicitor

54.7%

33.9%

6.3%

2.8%

1.7%

0.2%

0.4%

Citizens Advice Bureau

54.3%

28.7%

9.3%

3.1%

3.1%

0.0%

1.6%

All Providers

52.7%

32.5%

8.3%

3.0%

2.2%

0.4%

0.9%

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?

Provider Very satisfied Fairly satisfied Neither satisfied nor dissatisfied Fairly dissatisfied Very dissatisfied Don’t know/ can’t remember Not applicable
Solicitor

56.80%

32.00%

6.30%

2.80%

1.70%

0.20%

0.20%

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%

 

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.[26]

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,[27] 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)

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

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.

 



[1] The weighted average was calculated by ‘weighting’ the numbers of those from each of the three largest legal professions (barristers, CILEx members and solicitors) responding to the survey to reflect their proportions in the actual population who might have responded: see Appendix D. This accepted method of presentation of results provides a more accurate account of what a representative sample might have revealed. In view of the numbers it makes only a small amount of difference to these results.

[2] This is the average of all responses to the survey, including respondents from the three largest professions, other legal practitioners, academics and training providers, students, and others with an informed interest in matters of LSET. It is not weighted, as it is not possible to estimate accurately the size of all the various groups in the population.

[3] Eg,

We support the QLD and GDL constructs – in general, they deliver graduates with a predictable core knowledge base. Of course, this does not mean that they will have all the knowledge or skills needed for practice but that is not their purpose.

Legal Education and Training Group response to Discussion Paper 02/2012

[4] The report’s conclusions as regards the Foundation subjects are considered in Chapter 4.

[5] Weighted data.

[6] Though solicitors were also the group most likely to disagree with the statement that the existing ‘core’ provided a (more or less) sufficient knowledge base for the academic stage.

[7]

[W]e would contend that the academic stage should retain the current seven core areas but with the addition of legal ethics. The Society would also support the inclusion of a greater degree of company law, or the law of organisations.

[8] Eg,

 

A wider but shallower compulsory curriculum would significantly inhibit the ability of the law degree to provide a grounding in the kind of in-depth analysis, critical thinking and writing skills which is essential both to a liberal education and the development of neophyte lawyers. If an aim of the Review is to increase the development of these core skills, such a proposal will not, in our view, achieve the objective.

University College, London response to Discussion Paper 02/2012

 

A: I think I was really more thinking about expanding the academic phase to cover other things than purely just–

B: But if you put other things into the academic phase then you – you don’t want to lengthen the time period so what are you taking out of it?

C: And then you’d have to cope with the fact that the ones who hadn’t done a law degree, if you’ve put some extra stuff into the law degree, the ones who haven’t done a law degree need to pick it up later. Perhaps it’s at the LPC that we should be addressing some of this.

Solicitors

[9] Though the CILEx route already includes ethics, those who wish to retain the possibility of transferring into the solicitors’ profession must pass all of the Foundation subjects at level 6. Consequently additional subjects would add to the loading across that stage.

[10] Weighted data.

[11] Weighted data. Note that 19.4% respond neutrally to this item (ie, neither agree nor disagree), and missing responses = 6.2%, so that, in effect, 25% of solicitor respondents do not express an opinion.

[12] Weighted data. The level of effective non-response from the Bar is even higher at 30.5%: 16.7% respond neutrally and 13.8% are recorded as missing data.

[13] The dichotomy is represented by this exchange between trainee solicitors at the same firm:

 

A: I didn’t take the legal aid route although I’m now working in the family department and all my work is legal aid. And I’m glad I didn’t because I got a taste of different areas of law. I took the commercial module, family law and personal injury – so I took different modules. I think it’s helped me to decide which area of law I wanted to focus on and I think that’s why I probably disagree with some of my colleagues. I think it doesn’t need to be so specific.

B: I think you should be able to pick the route you go down from the offset and then be trained on that basis rather than learning – I’ve forgotten nearly everything of what I learned for the LPC which was property or business. I did well in my exams, I memorised it for a week and now it’s completely gone, it’s a complete waste of time. I think you should be able to – there should be maybe two routes on the LPC. I think the GDL works quite well but I think the LPC should be either a legal aid LPC, maybe a public and a private law one, I don’t know. Where you still learn the basics of everything but you go into detail more so in one aspect, either the private law or public law.

C: It goes back to the LPC that it is – it’s forcing you to take variety that you may have little to no interest in ever taking.

 

[14] Weighted data.

[15] The blended nature of the CILEx route is sufficiently embedded that some participants doubted whether entry into full time study directly from school was appropriate. They were concerned whether such students had necessarily made an informed career choice: they might simply be taking the course for its own sake.

[16] The high ratings given to procedure and ethics reflect the fact that they had both universal relevance across the range of regulated professions, and that they were genuinely perceived within most groups as the most important areas. Thus, focusing on the most favourable grading of ‘important’, procedure was rated ‘important’ by 90.3% of barristers, 76.7% of solicitors and 79.7% of CILEx members; ethics similarly was rated ‘important’ by 81.4% of barristers, 80.1% of solicitors, and 76.9% of CILEx members. Whereas the functional importance of procedure might be expected to be rated highly, it would not be expected necessarily to see legal ethics placed so highly. There may be some effect of the newness of outcomes-focused regulation and risk-based regulation.

[17] Discussed in Chapter 3, following. From the perspective of those involved, the adoption of a new business structure does not necessarily dilute or weaken the ethics. The Co-operative Legal Service has thus argued that there is a strong synergy between the perceived ethical values of the Co-op and its approach to legal business, and has emphasised the importance of training in ethics and values across its workforce (See Briefing Paper 4/2012). Another ABS commented:

 

Our clients, our people and our business partners value the enhanced ethical and professional standards we adhere to as part of a regulated profession. The effective regulation of the profession is, in our view, vitally important to maintaining the high standards consumers rightly expect of regulated professionals.

ABS (written response)

[18] Personal plight clients are individuals who have a problem which they take to a lawyer.

[19] From 2013, Chartered Legal Executives will be required to have demonstrated competence in ‘business awareness’ (IPS, n. d. b).

[20] LSESU Finance Society, http://www.finance-society.co.uk/; Warwick Finance and Law, http://www.wfsocieties.com/wfl/.

[21] Weighted and unweighted data.

[22] This work then informed the development of the more skills-based LPC curriculum.

[23] 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).

[24] Advocacy is authorised outside the LSA 2007 under other statutes, eg, s. 223, Local Government Act 1972.

[25] 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.

[26] 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.

[27] 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.