Understand Your Rights. Solve Your Legal Problems
My Legal Life – Constantine Law
It Is Time to Do Law Differently…
After 20 years as an employment lawyer I thought: “there must be more to working life than this”, (i.e. the ever increasing hours, the ever increasing fee rates and ever increasing disgruntlement among staff). I also thought: “if, as someone who advises on the law of work, I can’t figure out a better way of working, then I can’t be much of an employment lawyer.”
The result is Constantine Law www.constantinelaw.co.uk , a thoroughly modern law firm, providing employment and business immigration advice to corporate clients. We have radically reduced our rates (I charge my main client less than I did 12 years ago, how many lawyers can say that?); staff work remotely and are empowered through high commission rates to win and do client work; we have slashed our overheads to make the firm more profitable. But let’s be clear: the main beneficiary to our new way of working, is the client.
Our approach stands in stark contrast to most of the profession. Law firms are failing to move with the times: they are failing to use smart IT to drive down costs for their clients; they are failing to use smart office solutions and technology to empower their staff; they are failing to engage imaginative external providers to find new solutions. The result? The unit cost of production remains too high; hourly rates are thus too high (and pricing generally is not imaginative enough). Most critically, staff are unhappy with their work/life balance, particularly partners and want-to-be partners. In turn, this feeds through to the quality of response and to staff engagement.
The good news is that there is a different way: provided that law firms embrace radical change by using the latest IT and smart external solutions to put the client first. First, I explain how we got here.
Traditional Law has two big problems - (1) cultural problems; and (2) financial problems:
I have worked in two large national law firms. Both suffered from a top-down management structure where partners had no real “say” in the business. The real problem, however, was cultural: the employment department was a “small part player” in the firms, as a whole. This meant it was impossible to innovate properly. The time-lag between idea and action was always months, sometimes years. It is impossible to deliver innovative services to clients in such an environment.
I have worked in two smaller firms. They, too, had similarities: they did not have the time or resources to think strategically and this resulted in them always chasing their tails.
The solution? Excluding very big international firms, the future is in high performing specialists: firms with dedicated, senior people who are obsessed with researching and delivering clear solutions to meet a specific client need. This is all the more imperative, given the very urgent and turbulent times that we live in.
For Partners
I wrote previously that the traditional pay structure for rewarding non-equity partners in law firms is fundamentally unfair and out-dated. The traditional third-third-third model cannot be justified (partners earn a third of what they bill, one third is overhead and one third is profit to the partnership). In two years of trading, Constantine Law’s fixed overheads are less than 10% of its turnover.
We work to a lean business model: (a) we have negligible non-productive overhead (no bloated support departments or unproductive partners); (b) we don’t carry fixed office costs as we meet in London’s leading business space www.theclubhouselondon.com (clients and staff love it); (c) all of our key support functions (IT, PA/Admin, Marketing) are outsourced to specialists.
This enables us to reward partners with double the rate of the traditional model. Omer Simjee (www.constantinelaw.co.uk/ourpeople) used one word to describe it: “Empowering.” He expanded: “I feel truly motivated to go out and win work, for me and my family.”
Partners work remotely: they see more of their families. They are happier. The model is particularly good for working parents.
And whisper it quietly: “no more management rubbish.” There are no more pointless internal meetings. We have a highly-focussed monthly CRM meeting chaired by an external specialist. Partners win the work, they do the work. Simple!
For Staff
“What percentage commission do you get on bringing in a new client to the firm?”, I asked an associate solicitor, who I trained, and is now working at a respectable (they would say) entrepreneurial firm in the City. Answer: “3 per cent.”
At Constantine Law, we pay our employees 25% commission on new work that they bring in. Entrepreneurship should mean something choate: too often, firms pay lip service to it.
More fundamentally, our staff work remotely: unless they are working at either: (a) client offices; or (b) at the Clubhouse. What does this mean? Using cloud computing, Caroline Glacken, our senior associate (www.constantinelaw.co.uk/ourpeople) can do two productive days’ work from a villa in Brittany without taking holiday.
Here is a snap-shot of the pros and cons: “old law -vs- new law”
Old Law New Law
| Partners take home 1/3rd of billings | Partners take home 2/3rds of billings |
| High Charges to clients | Clients charged 50-60% of comparable firms |
| Cumbersome pricing structures | Innovative pricing structures |
| High overheads, particularly offices, staff, non-productive partners and support depts. | Low overheads. Engage specialists to do work. Pass on the reduced overheads as lower rates |
| Traditional remuneration for fee earners | 25% commission on client “wins.” |
| Junior lawyers do most of the work | Senior lawyers do most of the work providing clear solutions for clients |
| Old IT, warehoused servers | Cloud IT/Saas Applications |
| Lip service to agile (often means “hot desking”) | Truly agile (bottom up view of working) |
Don’t Be Fooled by New Models Offering the Same Service
Various firms are setting up at present, offering new ways of working. Some will offer a number of the benefits listed above. Some big firms are claiming to offer “agile working”. The reader should not be fooled: some new firms may set out to ensure that lawyers benefit through: (a) higher “take”; and (b) more freedom/remote working. However, a law firm only truly re-engineers its service when the client benefits – i.e. through an improved service and a reduction in rates. Too few firms are passing on the reduction in their overheads to clients.
The Bottom Line
The bottom line is that all of our solicitors are evangelical about working for Constantine Law. Two years ago we started with one person, now we have five (and increasing) solicitors and others are joining. It is a better way to service clients and to live a healthy life, but it is not for the faint hearted!
This Working Life Is Not for Everyone: Only the Brave Need Apply
All bar one of our solicitors and support staff are self-employed. The “catch” (if you can call it that) is that solicitors have to generate their own income. My message is clear: “If you are a net contributor to your firm, you will be better off here.” (The opposite also applies). Therefore:
Thailand has vastly grown over the years, attracting tourists and investment from all over the globe. Dealing with mergers and acquisitions is an important role, for the parties involved, alongside the investment for the respective jurisdiction. This month we speak with Charin Satchayan, who has extensive experience in the M&A field and real estate.
How has the M&A scope changed over the years in Bangkok and what exciting ventures are you looking forward to?
Over the years, we have seen increasing M&A activities expanding into small and medium size enterprises in Thailand. Over the past year, Charin and Associates (C&A) have dealt with a range of deals, such as:
Do you think foreign corporations that invest into Thailand often have many misconceptions about the best method of successfully developing in a growing city?
I think foreign corporations need to understand the Thai culture a little better when dealing with Thai partners.
You have represented many property and real estate investment trusts (REIT)– which real estate category (from malls, hotels to office buildings etc.) pose the most challenges for corporations? Which category poses the most challenge on your role as a legal expert and why? How do you overcome this challenge?
Last year we have represented several REITs transactions, covering hotel, warehouses, office buildings and retail. The challenges for us as the legal counsel are more related to structure of the transactions, rather than types of assets. For example, the sponsors preferred to inject assets in to the REITs in the form of leasehold right for tax and commercial reasons, rather than freehold. This structure increased the risk of the investors and as a result we need to come up with more complex structures to minimise/mitigate the risks while balancing the interest of the investors and the sponsors. Sometimes, we even had to come up with the so called synthetic sale structure. The other challenge is how to structure the REITs to accommodate the understanding and perception of the authorities.
What do you think is the most important characteristic clients should look for when seeking a legal expert for M&A transactions?
In-depth understanding of the industry which will enable them to give effective and practical advice to the clients, negotiation skills to get the deal done properly and capable and sufficient resources.
Charin & Associates Limited
16th Floor Unit 1609-1610, Park Ventures Ecoplex
57 Wireless Road, Lumpini, Pathumwan
Bangkok 10330 Thailand
Charin’s practices focus mainly on capital markets, Public Private Partnerships, project and project finance, financial regulations, mergers and acquisitions and real estate, both in Thailand and the regions (including Laos and Myanmar). He also has expertise in the infrastructure sector (in particular, airport and power project), financial and insurance sector, airport and aviation and also property sector.
Charin & Associates, provides legal services to both Thai and international clients in various areas. In addition, we also advise our clients in transactions in the region, especially in Myanmar.
Our main focus areas of practices are Capital Markets (public offering and private placement of various types of securities), Mergers and Acquisitions, Real Estate Projects, Property Fund for Public Offering (PFPO), Real Estate Investment Trusts (REIT) including Infrastructure Fund.
Our firm also has special knowledge and expertise in certain specific industries, including financial institutions, insurance, energy and power, hotel, aviation and infrastructure.
In addition to Charin Satchayan who have been in legal practices for more than 23 years advising Thai and international clients in various important and landmark transactions in Thailand, our team consists of lawyers who possess law degrees from reputable university overseas and legal knowledge and experiences in representing clients in many important transactions in Thailand.
The construction industry is prevalent with contractor-bullying project teams, so much so that only few make it through to a successful project. Tunde Ojo-Aromokudu says that: “These days where consultants are required to price keenly for work to get it, results in reduced service to the extent that unsuspecting clients do not get the desired quality in many cases. Whilst in some, where it is demanded, it leads to disputes or even litigation that could have been avoided from the onset.” In this scenario, contractors who get scanty information have to be creative to maneuver through the project, otherwise, the project is terminated. In this article, Tunde reveals more to where businesses and contractors go wrong, which often leads to litigation and disputes.
What changes had a significant impact for major cities and corporations?
Use of technology has placed major impact, from planning and execution to completion. Technology has improved the pace of real estate development just as much as everything else, as you are able to plan multiple projects to successful completion without colocation of team members. I believe that with better access to finance, comes more hurdles for corporations in property investment. The government’s investment in basic infrastructure development too, has been the backbone to these changes.
Where do these companies often go wrong when it comes to construction, especially in regard to working in Johannesburg?
Corporates often believe that price is the major determinant for creating value from professionals. Most companies do not know that the lowest price does not often equate to a good bargain, as a number of clients opt for open competitive tendering in their source selection for their projects. This approach creates room for opportunists who might not make the right fit, but try to do so either way. A point to note is that most companies are not aware of contractor-bullying that is prevalent in the industry as consultants fail to plan well, thereby passing the buck to the contractor.
What are common cases you are called for?
Client-contractor disputes, where the contractor’s claim delays are due to client’s agents not performing their responsibilities. This is often a case where consultants fail to supply buildable information to contractor in good time, thereby leading to loss of time to the contractor or client. There are also cases where contractor delays completion due to scope creep.
In what way is your expertise valuable for solving such cases?
As an architect/project manager with almost 30 years post-qualification experience, cases are viewed from an angle of a professional with varied experience in both Nigeria and South Africa. The application of knowledge of various forms of contract used in projects has helped me in evaluating issues on various contentious issues. Forms of contract, for instance in South Africa, are mainly FIDIC, NEC, GCC & JBCC forms. These are basically the same with variations between them. In many cases, involved parties never accept any wrong-doing until some education takes place in the form of mediation or arbitration. You need a clever system of enquiry to surface certain assumptions at play leading to the disputes in the first place.
What could companies/business people do in order to avoid legal action?
Companies should have an idea and a plan of what they desire to achieve, even this is at a high-level. Engage responsible agents early enough to interrogate the company requirements, identify risks and advise promptly. Companies, through the appointed agent, should determine a clear brief at the onset and ensure a common understanding of that brief is noted and documented with their attendant challenges. They should also ensure processes and documentation are quality-assured and controlled. They should also identify expectations for all key stakeholders and set goals where necessary whilst ensuring the communication regime is clear to all and demand that it is strictly adhered to. Moreover, companies should always be on the lookout for risks inherent in the process and promptly explore options to mitigate them. Despite all these, legal action might still be inevitable, where one party exploits a weakness in the other party’s system.
Could you suggest any legislative changes you would make in order to improve your role as an architect?
Architecture is a science and an art. Hence, you really cannot put a value to the outcome of that service. Therefore, where architects’ fees are regulated, they should not be subject to negotiations because negotiating fees often compromises service, sometimes to the point where the gain in fee-reduction is lost in the final outcome due to poor delivery of that product. This poor delivery might not even be obvious until later in the product’s life cycle. If fees are legislated they should not be subject to negotiation. This also means that architects need to compulsorily procure indemnity insurance to be eligible to render services to the public.
In what way are you hoping to witness cities in Africa develop in regard to their architecture and landscape? Evolution of smart cities that are driven by technological innovation but equally vibrant and beautiful. I am hoping for cities that are compact with less dependence on fossil fuels underpinned by legislation. There should be cities with higher rebates and recognition for buildings with greening principles. I am also hoping for cities with landscape that creates opportunity for less maintenance costs.
What has been the biggest challenges during your big projects, such as Defunct Durban International Airport Upgrade? How did you overcome these challenges?
The biggest would be managing a contractor who declared bankruptcy mid-way through project. As part of the team advising the client, ACSA, - early interventions were made and this became the saving grace before the contractor could declare bankruptcy. The client promptly terminated the contract to avoid the embarrassment of the damage of this bankruptcy declaration.
Tunde Ojo-Aromokudu is registered as an architect in both Nigeria and South-Africa but also registered as a construction project manager in South Africa and a project management professional with the PMI. Prosite Plan is a practice of architects and project managers operating in both aforementioned countries. Tunde is the CEO of Prosite Plan based in South Africa operating from their Johannesburg offices.
PROSITE PLAN is a professional built environment practice focusing on Architecture and Project Management. We pride ourselves in developing fruitful relationships with our clients through our reputation for sensitive, appropriate and tasteful architectural solutions. PROSITE PLAN is a registered architectural practice founded in the year 1994 and registered in South Africa. Since its inception, it has grown to become a major player in the South African economy in the field of residential, commercial and industrial design and construction. PROSITE PLAN has a team of architects, project managers and other professionals creating pleasing results to meet client requirements – we have offices in South Africa and in Lagos, Nigeria.
Tunde Ojo-Aromokudu
Managing Director
This month we speak with Ken Tang, who has made huge impact in the insurance industry. Based in Hong Kong, he speaks with Lawyer Monthly about his vast amount of experience, as well as about his many awards of recognition in the financial sector.
Ken Tang has joined the insurance industry in Hong Kong in 2010. He has become a member of the “Million Dollar Round Table” (MDRT) a year after his entrance, which is an honorable achievement in the insurance industry. Now, he has already become a member of the “Top of the Table” (TOT), the top membership qualification of the industry, for several years.
What do you think accounted to your achievement of being a member of the Million Dollar Round Table?
“To be able to become a member of the MDRT, I personally believe that persistence is the main criteria. It means to be able to persist and not give up in the process of learning, and more importantly, when facing a challenge.”
Apart from this award, Ken has also obtained the membership of “The Chinese Institute of Certified Financial Planners” (ICFP), the “International Association of Registered Financial Consultants” (IARFC), and the “International Financial Planner Council”. Therefore, when he provides his clients with his assistance, he gives advice with consideration from different perspectives and takes different factors into account. These include the targeted beneficiary(ies) of the product, possible legal regulations involved, the financial benefits the client may gain, and etc.
What do you think is the biggest challenge currently facing the financial industry in China?
“The consumer demand in China is lacking because the market mainly relies on policy promotions. The problem of products being piled up in excess of requirement is becoming more serious. The number of financial loans are rapidly decreasing, which leads to the supply channel of cash flow being tough. The employment contradiction problem is also becoming more severe as time goes on.”
What do you think will be done to tackle this challenge?
“The old-fashion economic operation system needs a revolution to strengthen and consolidate the tertiary industry in China. This will narrow the gap between the rich and the poor, while balancing the domestic regional development and expanding consumption demands in the Chinese market.”
Ken also achieved awards such as the “International Dragon Award” (IDA) in the financial industry. This honor is the symbol of success for a Chinese financial insurance practitioner. In the preliminary stage of his career, he acquired the Bronze Dragon Award (agent category) from the insurance company he belongs to. Recently, due to his outstanding performance, his company has rewarded him with the “Platinum Award” (agent category). More importantly, he was rewarded with the “Bronze Frontline Leader Award” during the General Agents and Managers Association International, which, was definitely an affirmation and recognition for his ability as a leader.
Can you expand on your International Dragon Award and the significance of the award on your career?
“The honour of receiving an International Dragon Award is the symbol of success of an Asian financial-insurance industry. It is the ultimate honour you can receive as an Asian insurance agent.”
In addition to the recognition of his ability from inside the company (Prudential), within his 7 years working in the company, Ken has corporate well with his colleagues. He has provided his colleagues with much assistance and training in obtaining a membership in the “Million Dollar Round Table” (MDRT) or even the “Top of the Table”, as well as other similar awards.
As a Branch Manager (BM), Ken has made significant contribution to himself and to his team. His efforts are recognised and highly valued by the company he works in; thus, the company has further awarded him with different awards to reflect their appreciation.
Likewise, his success and extraordinary achievements were reported and published in a local newspaper (Hong Kong Economic Daily) to encourage his colleagues and to be viewed by all Hong Kong citizens.
What common cases are you called to give your expert opinion on?
“The most common type of case, involving the insurance industry, that I am constantly dealing with throughout the many years of my career is the demand for basic life insurance; this is due to the fact that, on average, the chance of getting a serious disease is getting higher from a younger in age.”
How challenging can these legal cases be, and how do you overcome it?
“When it comes to problems which concerns legal regulations, I think it is very necessary to consult lawyers or/and relevant professionals/organisations often throughout the process, to ensure communication is clear and to avoid any simply solved problems.”
In what aspects do you think the Chinese legal system needs to adapt in order to make your role as an expert witness a smoother one? Could any changes be better suited for the financial industry?
“The law in China is already consummate, but I think what needs to be improved is the capacity to implement the law appropriately, as well as a strong supervising mechanism.”
What are common regulations that people are unaware of in the financial industry, and how does this lead them into lawsuits?
“Problems such as oversea investments, asset transfers, the preservation and inheritance of wealth, and logical tax avoidance, are still quite new subjects for Chinese people to touch upon, therefore, the relevant law related to these subjects are still very unfamiliar to them, which can thus lead to lawsuits.”
Ken Tang
Professor Paul Tipton is an internationally acclaimed Prosthodontist and Professor of Restorative and Cosmetic Dentistry, who has worked in private practice for more than 30 years. He is the Founder of Tipton Training Ltd, one of the UK’s leading private dental academies, as well as past president of the British Academy of Implant Dentistry. He works at T Clinic in Manchester and London together with other specialists and expert witnesses. He speaks to us on his role as an Expert Witness in the Dentistry industry.
Throughout your years of experience as an expert, what common mistakes do other dental professionals make which does have the potential to lead to losses?
Most of the common negligence cases that we see in dentistry are to do with periodontal disease and lack of diagnosis and lack of treatments which has in turn led to tooth loss and then the need to replace the teeth, usually with dental implants. Dental implants are a very costly treatment and usually not available in the health service and often, should the negligence have led to loss of many teeth, then treatment cost can be in the region of £50,000 in order to replace these missing teeth with implants.
The second most common cause of negligence is due to tooth extraction where it has not been explained to the patient that there are other options which could lead to the tooth being saved; if they had been fully informed they would have taken another route which would have led to their tooth being treated. Again, once the tooth has been removed the usual replacement is with the dental implant and a single tooth replacement is often in the region of £3,000 to £4,000.
More recently, we are seeing complex treatments for which the dental practitioner is either inadequately trained for or does not provide the patient with a reasonable estimate of the costs and outcome, alongside the pros and cons of such treatment. Here, the more expensive treatments include dental implants, cosmetic dentistry with veneers, etc., and also short-term orthodontics.
Patients are very often disappointed when having veneers or crowns placed, as the end result does not match their expectations which can again lead to a claim. Most dentists often do not complete enough diagnostic work in advance of treatment, so that the end result can be easily previewed by patients and amended as required.
Dental implants have a failure rate and this is often overlooked. The expected failure rate has always been in the region of 5% in the lower jaw and 10% in the upper jaw. More recently, however, there is peri-implantitis disease which has led to an increase in these rates. Again this is often overlooked during the treatment planning stage. The patients have the assumption that their implants will last them a lifetime.
How have you seen dental education change over the years? Do you think that this has affected the occurrence of legal cases?
Dental education has changed massively over the years and I have been involved in it very closely with my company Tipton Training. We have trained dentists over the last 20 years both in the UK and abroad in some of the complex issues of the newer techniques in dentistry. Due to government cutbacks and lack of funding, often some of the newer graduates are graduating from dental school without basic knowledge and without having performed some of the basic dental tasks. This then leads to a lack of confidence on the dentist’s part which can be reflected in the quality of treatment that is provided.
How would you deal with negligence, whiplash and general accident cases differently? Do any of those have different requirements when producing a medico-legal report?
Negligence cases take the most amount of time and are often highly complex, involving multiple dentists over a period of time during which the patient was treated. This is especially in the area of periodontal disease where lack of care, treatments and diagnoses may have been going on for a decade or more; the patient has seen multiple dentists who have continued to misdiagnose the disease process. This becomes difficult to apportion the negligence percentage to each of the dentists involved in the case. The most important factor which is often overlooked by some experts is the issue of causation and understanding that it is not enough just to deal with liability, for the case to have merit. General whiplash and accident cases are far easier and are reflected in the fact that the reports are cheaper to produce and are often of a more factual nature.
What advice do you have for solicitors when choosing dental experts?
The choice of dental expert should be based on the understanding and knowledge of their field and certainly, an established private practitioner who has over 10 years of general dental practice. Alternatively, dentists who have gone on to have further education in a particular field, such as Master’s degrees or Specialists in Periodontics, Endodontics, Orthodontics, Prosthodontics, General Dentistry and Implantology, and finally to Professors or Consultants when required. It is also important to have continuity when choosing an expert and knowing that they have been through adequate training in the expert witness field and have enough experience in that field to write reports which are legible, easy to read and precise. It is essential to understand a basic knowledge of the legal system so as to help the court reach its opinion if required. I would also suggest that having a nationwide panel of experts who are all trained to the same standard and degree and whose reports have a similar, if not identical makeup, makes life easier for the solicitor and barrister when dealing with a large number of cases. We at T Clinic employ experienced general dental practitioners, dentists with Master’s degree in their chosen field, Specialist Consultants and Professors in all areas of general and specialist dentistry and also on a nationwide basis so continuity is guaranteed.
I am a Specialist in Prosthodontics and also a Professor of Restorative and Cosmetic Dentistry in the City of London Dental School. Prosthodontics is that speciality which deals with the replacement of teeth and this can be via crowns, veneers, bridges and implants. Prosthodontics would also include treatment of the temporomandibular joints and bite. This treatment is often wholly performed by dentists who have inadequate training in the field of occlusion (bite). Being a specialist in Prosthodontics and a Professor of Restorative and Cosmetic Dentistry gives me an overall view of all the fields involved in Restorative, Cosmetic and General Dentistry which is essential when writing reports and coming to opinions as to plans and treatments.
Professor Paul Tipton, a Specialist in Prosthodontics is one of the UK’s most respected dentists and has pleasure in welcoming you to T Dental, part of T Clinic. As Clinical Director he has developed a leading dental practice to provide the highest level or oral care.
Paul Tipton
Specialist in Prosthodontics
Clinical Director, T Clinic
07870 952057
Interview by Niek Post, Director at Kröller Boom Insurance Brokers & Advisors
Please tell me about your involvement in the deal?
At first a brief introduction; Kröller Boom is an insurance broker & adviser, with the focus on niche private equity & investment firms including family offices. Within this niche area, we are very familiar within the market of Dutch related mid-corporate transactions such as the Boboli deal. Over the last 3 years, Kröller Boom has rapidly grown as one of the Dutch based market makers in this sector.
Around this transaction we have delivered specific insurance due diligence around the risks related to assets, liabilities and human capital, such as pension and health & benefits. Another focus point is the warranty & indemnity insurance which we structured together with our London based M&A partner Lockton LLC.
Why is this a good deal for all involved?
Most important and at first: the deal must be a good deal for our client Gilde Equity Management (GEM) and we are proud to be the insurance partner of the deal team of GEM. The up-side for us is to play a role in a larger field with GEM’s advisers to deliver a smooth as possible transaction result and the start of a successful investment in the end.
What challenges arose? How did you navigate them?
The challenge, as always, is the work stream versing the clock, but this challenge is part of our DNA to deliver our services and advise within timelines given by our client; the energised and close teamwork and project management within Kröller Boom and our involved partners enabled us to do so. We like to be challenged as M&A insurance broker & adviser.
With the financial industry often being baffling for some, Nick Leech states that there are many areas of financial matters which can cause confusion outside the financial industry.
“The issues tend to be different pre or post-settlement but the most common ones in the general context of personal injury would include: how to allocate the settlement award between lump sum and periodical payments; understanding the differences and impact of price and earnings related inflation on clients’ long-term funds; recognising poorly performing and costly investment portfolios that carry unnecessary risk; understanding how damages awards interact with the welfare state and HMRC taxation rules in the UK”, says Nick. We question him this month, on what happens with the financial world meets the legal sector.
You have been involved in developing specialist investment strategies for the personal injury marketplace. Why are such strategies required?
Personal injury compensation is calculated using well-established legal principles that involve discounting future losses attributable to the injury to present day values using a discount rate based on ‘real’ (after price inflation) investment returns. The assumption is that the compensation should be adequate to cover the period of loss, but will not provide a better financial position than would have been the case apart from the accident (Lord Oliver, Hodgson v Trapp [1989] AC 807).
Effectively, the investment of that compensation needs to incorporate and factor in the legal and discount rate principles, inflation (prices and earnings) in a low-risk environment for investors who very often have suffered catastrophic, life changing injuries resulting in individual short, medium and long-term requirements. In order to achieve this, bespoke portfolios and robust processes are required. Space precludes a fuller analysis but one can be found in Personal Injury Law Journal May 2017 - A Lifetime Commitment.
Do you think the legal profession and finance world work well during litigation? What changes do you think would be of benefit?
From my experience, I genuinely believe that the gap isn’t that great. As ever though, the situation might be improved. Perhaps the CPR could be enhanced in this area by an appropriate practice direction/addition to the present practice direction. For example, prior to the implementation of PPOs by the Courts Act 2003, consideration of their precursor, structured settlements (which could not be ordered by the Court as the regime was consensual), was greatly assisted by such an arrangement. The practice direction at the time made it compulsory for the parties to consider structuring part of the award, in cases where the claimant was a child, or lacked capacity, and the future losses were in excess of £500,000. Expert input was therefore, the norm pursuant to that practice direction.
It could be that additional practice directions in the CPR be provided, setting out very clearly what type of case must have specialist financial advice to ensure all options are analysed. Conversely, this could be viewed as too much ‘centralised’ interference, despite being founded upon well intentioned principles - the protection of largely financially vulnerable individuals. I favour a clear practice direction akin to the former, but of course I would say that!
What type of cases might make use of Periodical Payment Orders (PPOs)? How might the PPO framework be improved since Courts Act 2003 granted wider powers to the Court?
The vast majority of cases including a PPO as part of settlement are those of catastrophic proportions. In other words, very serious injury, with lifelong consequences. Also, cases involving a liability reduction, are less likely to involve expert advice about the format of the award. Traditional thinking amongst legal practitioners is often that a lump sum award is usually preferable in such cases. This may be correct in claims with a very substantial discount, but such opinion appears to be derived from the misconception that a lump sum might be invested with the result that the shortfall could be reduced over time. The reality is that large shortfalls will not be reduced as a result of investment returns based on caution. The effect therefore, can be that investment risk is introduced into a reduced value claim, often unnecessarily. By contrast, a PPO can provide certainty in such situations and appropriate expert advice would assist with evaluation on a case-by-case basis.
Is there anything else you would like to add?
In our experience, claimants are not advised at all how to invest lump sum damages during settlement negotiations. In circumstances where Nestor are instructed to act as expert witness in relation to periodical payments, it would be considered a conflict of interest to give specific advice on how to invest a lump sum. IFAs such as Nestor compare the options of periodical payments versus lump sums on a generic basis pre-settlement for Court purposes. Nestor are approached for investment advice only after the claim has settled. Solicitors and barristers are not authorised or regulated to provide investment advice at the time of settlement and IFAs are not instructed to discuss investment matters, even on a generic basis, with claimants prior to settlement. In our experience, investment considerations often come as a shock, and are perceived as another ‘problem’ to deal with by claimants’ post-settlement, especially in situations where they do not have any ongoing assistance from a Court of Protection appointed professional Deputy or professional Trustee. In Nestor’s experience, many claimants do not have any experience of investing significant sums of money (often millions) and they are worried and daunted by the responsibility of taking investment decisions. At present, the system and the law does not allow for costs of investment advice to be recovered either prior to settlement (unless it is to cover the cost of periodical payment advice), or post-settlement. We believe strongly that this is something that ought to be addressed in order to improve understanding and outcomes for claimants.
Nestor are also of the view that lawyers settling claims ought not to be allocating damages between periodical payments and lump sums without the assistance of expert IFA advice.
Before joining Nestor, Nick enjoyed a successful career spanning 20 years within the financial services sector. Nick started out with a blue chip bank before taking three years out to obtain a Law Degree. He resumed his banking career before assuming an instrumental role in the launch and development of the Manchester franchise of a national IFA brokerage. Since then, he has gone on to develop relationships within the professional service sector and maintains good working relationships with a number of key influencers.
At Nestor, our focus is simple - our clients are our business.
Clients bring us many questions, and we take pride in the quality of our answers and the success of our recommended solutions.
Nestor is a team of experienced, Independent Financial Advisers working with a wide range of clients throughout the UK. We specialise in providing services to personal injury and clinical negligence legal practitioners and their clients.
Many years’ experience in the personal injury field has established Nestor as the ‘expert of choice’ in
pre-settlement issues and post-settlement awards. Nestor is a key partner to many lawyers acting for personal injury claimants nationwide.There are many potentially suitable investment strategies that could be adopted by claimants. At Nestor, we have a range of solutions for our clients and recommend an investment strategy only when we have established the client’s needs as well as attitude to risk. There is no such thing as one right answer. All of the external investment managers recommended by Nestor must meet our strict due diligence criteria, and are subject to quarterly scrutiny from Nestor’s Investment Committee.
Nick Leech LLB (Hons) DipPFS
Director
Controlled House, Waterfold Business Park, Rochdale Road, Bury, Lancashire BL9 7BR
218 Strand, London, WC2R 1AT
I have been a mediator since 2008. Although each mediation is different, I have found that there are several constants to successful mediations. In my experience, the following practices are good guidance for every mediation.
Philip J. Glick retired as general counsel of a major commercial financial services company before embarking on a career as a mediator and arbitrator. Mr. Glick has mediated many hundreds of cases with a settlement rate exceeding 90 percent and is a certified mediator for FINRA and the circuit courts of Cook, Lake, DuPage, McHenry and Will Counties, IL. Mr. Glick is a member of the Board of Directors of The International Academy of Dispute Resolution, a member of the Executive Committee and Treasurer of the Association of Attorney Mediators and a member of the Dispute Resolution sections of several bar associations, including the ABA and the Illinois State Bar Association. Mr. Glick also serves as an arbitrator for FINRA and several Illinois circuit courts, and is on the mediation and arbitration panels of the AAA and ADR Systems of America. Mr. Glick graduated from Loyola School of Law and has completed courses in mediation at DePaul and Northwestern Law Schools. Mr. Glick has written articles, and prepared and presented CLE courses on, mediation.
Philip J. Glick, Esq., Northfield, IL,
847-732-3307
This month, we hear from Vladimir who has worked with international and domestic clients and advised on various procedural law matters. He counselled and represented clients before courts and arbitration tribunals in Serbia and abroad and cooperated with law firms Schoenherr and Karanovic-Nikolic, and was actively involved in two high profile cases before the UN court (ICTY) in The Hague. Vladimir started his career with Dragoslav Cetkovic, an esteemed defence attorney in 2005. He discusses compliance/anti-corruption and business crime matters in Serbia and how lawyers can ensure business and human rights are appropriately addressed*.
You are very active in various international affiliations, such as Roxin Alliance. What is your main role as their regional coordinator and business crime practice group co-head?
My main role is to facilitate knowledge management and access to experienced legal counsel with in-depth national and local knowledge, so that business crime and compliance/anti-corruption issues can be addressed where and whenever needed.
How has compliance/anti-corruption and business crime progressed in Serbia? How does this relate to nearby jurisdictions?
These areas have evolved significantly in the past years. Further changes of the Criminal Code are also in progress, especially the part referring to criminal actions in economic areas, with a special focus on the crime of tax evasion. In addition, the government is paving the way for Financial Investigation Strategy that comprehensively addresses the problem of financial crime and anti-corruption, in particular by facilitating efficient cooperation of relevant agencies responsible for collecting data and conducting financial investigations and preventing shifting of unlawfully gained funds into lawful business flows.
This also has significant impact to the nearby jurisdictions by fostering cooperation among judicial authorities of neighboring countries. Due to its geographical position, Serbia is a very important country for transnational crime prevention and therefore there was a striving need for a more efficient criminal enforcement and judicial cooperation via bilateral and Council of Europe treaties. Another tool - supported by bilateral assistance program of Criminal Division of the US Department of Justice Office of Overseas Prosecutorial Development Assistance and Training (OPDAT) - Criminal Procedure Code has however encountered a strong opposition from the majority of the Serbia’s legal community and has been seen as interfering with its legal tradition.
As a human rights expert, what do you think is the most pressing issue to portray across to legal professionals?
Effective dissemination of knowledge on European Convention on Human Rights and jurisprudence/admissibility issues pertaining to European Court of Human Rights.
What do you think the legal profession can do more of to ensure business and human rights issues are addressed appropriately?
Legal professionals should be the guardians and do their best to ensure application of relevant sections of United Nations Guiding Principles on Business and Human Rights in order for business enterprises to avoid causing or contributing to adverse human rights impacts and seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services.
What was the most interesting find when you conducted research for Corporate Criminal Liability during your postgraduate studies and how did this shape how you practice law?
The most interesting thing was looking at correlation between criminal and corporate law and integrating these into my compliance/anti-corruption practice (i.e. acting as external ombudsman for different multinational companies) as well as business crime practice (i.e. distinguishing triggers for company responsibility for acts of its directing mind).
* The opinions of Vladimir Hrle expressed here are personal, and do not necessarily represent the opinions of current or past employers or colleagues, or professional associations, with which Vladimir has collaborated.
Contact Details
Vladimir Hrle, Hrle Attorneys
Address: Simina 1, Belgrade, Serbia
Tel: +38164 1106335
Email: vladimir.hrle@hrle-attorneys.rs
Vladimir is a member of Serbian Bar Association, European Criminal Bar Association (Anti-Corruption in Europe working group) and International Bar Association Human Rights Institute. He is active in the Balkans Regional Rule of Law Network of the American Bar Association Rule of Law Initiative (founding member), European Criminal Justice Observatory (deputy chair), Fair Trails International (Legal Experts Advisory Panel) and ICC Commission on Corporate Responsibility and Anti-Corruption. He also co-heads the business crime practice group of Roxin Alliance.
Vladimir is a certified trainer of the Council of Europe’s Human Rights Education for Legal Professionals Programme, with the aim of ensuring high-quality further training on the European Convention on Human Rights and the jurisprudence of the European Court of Human Rights for legal professionals. Vladimir authored numerous legal publications and did academic research on Corporate Criminal Liability at Amsterdam University, where he obtained his LLM degree.
This month we have the wonderful opportunity to hear from Laura Snoke, whose passion for the legal sector is very evident by her story on how she fell into the sector. Laura stated: “I have been blessed by being able to practice law for so long. I still get a thrill when reading a case that concerns a novel issue, or a new interpretation of an old issue, and continue to attempt creative and novel solutions to problems as the law is continually evolving.”
She speaks with us on how she specialised in the legal sector, the tools she developed to be the best she can be, and pinnacle cases she has represented in Court.
What was the main motivation behind choosing a career in the legal sector?
I wish I had some fantastic story about how I always wanted to be a lawyer since I was a little girl, however, my journey to this profession was not nearly so profound, although, when I was born - yelling - my mother’s obstetrician told her that, with those lungs, I would undoubtedly become a lawyer. I happened to represent myself in a trial in which I, along with six other defendants, were tried for disturbing the peace arising from a melee during a demonstration against the Vietnam War, so my introduction to my legal career was largely inadvertent. After graduating from college, I went to graduate school, intending to be a history professor. I soured on graduate school, however, and simply needed a job. I saw an ad in the LA Times for a legal secretary, the only qualifications were to be able to type, which I could do. I applied and obtained the job. When I started working, I had to type letters, pleadings, etc. In addition to asking my boss if I could correct his grammar and syntax, I became fascinated with the legal concepts I was typing. Being blessed with a boss who loved to teach, I started learning about legal concepts, such as equity. I began talking to the attorneys at the firm, most of whom then encouraged me to go to law school, and so I did. I have been fascinated by the law ever since.
What challenges did you face along the way and how did you overcome them?
Practicing law has never been much of a challenge, as I have always loved the law. I suppose the biggest challenge was dealing with the politics of the firms where I worked. I simply persevered. I learned early on that the key to success in the business of practicing law was to control the source of funds – clients – and I devoted myself to providing the best service I was capable of to my clients. I have clients today whom I have represented for over 25 years.
What has been the biggest change you have witnessed in the legal sector that affected homeowners?
I began representing homeowners’ associations in 1985, when the law was in its infancy, and there were very few practitioners involved in representing associations. Since then, a number of laws have been passed, some would say they are indicative of Legislative micro-management. I was personally involved in two published seminal decisions that impacted the law: Miller v. Lakeside Village, a case involving mould exposure to a homeowner asserted to have been caused by water intrusion and alleged personal injuries as a result. I was able to obtain summary judgment based upon the statute of limitations, in which the court found that the doctors’ advice to the plaintiff that ‘nothing was wrong with her’, was not sufficient to delay the discovery of her injuries so as to avoid the bar of the statute of limitations; and Nahrstedt v. Lakeside Village, the leading case in California which held that provisions in the CC&Rs are presumed to be reasonable and enforceable. Since the Nahrstedt case involved a restriction prohibiting cats, which the Court of Appeal found unenforceable but the California Supreme Court upheld, I received hate mail from cat lovers. (By the way, I love animals and am the proud owner of two beautiful and wonderful cats!)
What is the biggest difficulty of setting up your own firm? What challenges did you face along the way that you were not expecting?
I miss the camaraderie of a law firm, and the ability to bounce ideas off others. I first opened my office in an executive suit, thinking there would be networking and other opportunities. Unfortunately, most of the attorneys do not socialise. I still talk with my former partners about legal issues from time to time.
Nevertheless, in what ways would you recommend setting up your own firm?
I do not miss the politics which are ever present in a law firm, and I like being in control of my own destiny.
You have represented associations with general corporate issues – which issues are the most challenging to resolve and why?
The most difficult issues involving homeowners’ associations generally occur in smaller associations, who don’t have the funds to hire topnotch management and other professionals. Invariably, disputes arise over whether repairs should be made, and disparate interests in small associations can wreak havoc on associations’ obligations to maintain and repair the property, so as to keep it in a first-class condition – generally the mandate to the association found in the CC&Rs.
What are common misconceptions your clients have about their issues?
Nearly every client thinks his or her case is a slam-dunk winner, and most clients refuse to believe otherwise.
Persuasion is an important tool when called to cases – in what ways have you developed this skill?
I have been a litigator since I began practicing law. I do believe that litigation is an essential skill to being a rounded attorney. I have the utmost respect for transactional lawyers who never set foot in a courtroom, but I do believe that their experience leaves a bit of a vacuum. I tend to see every situation as it will ultimately play out in court, which helps in crafting strategy. After having litigated for over 35 years, I know that, other than rare instances, litigation does not benefit the parties. I have been a mediator for over 25 years, am a big believer in mediation, and find that most people are far better served if their disputes are resolved without the expense and stress of litigation. Of course, some cases need to be tried, but they are rare.
Laura graduated from Loyola Law School in 1981. From 1981 to 1985, she was an associate with Meyers, Bianchi & McConnell in Los Angeles. She joined Wilner, Klein & Siegel in 1985, became a partner in 1988, and worked there until she opened her own firm in 2005. She has an “AV” rating from Martindale-Hubbell, a national organisation which rates both the qualifications and integrity of attorneys based upon peer and judge reviews.
She specialises in representation of community associations, although she also represents individual homeowners and has a general civil practice focusing on real property, construction and business litigation and transactions. She represents general and specialty contractors, professionals, small businesses and individuals both in litigation, transactional matters and in providing general counsel services.
The Law Offices of Laura J. Snoke assists clients in community association law, construction defects, real property, business transactions and disputes, and professional malpractice defense matters. With offices in Century City, we are well-positioned to assist community associations, businesses, and individuals throughout Los Angeles, Orange, and Ventura Counties
Laura J. Snoke, Esq.
Law Offices of Laura J. Snoke
1801 Century Park East, Suite 2400
Los Angeles, California 90067
Tel: (310) 556-9658
Fax: (310) 556-9659
