Understand Your Rights. Solve Your Legal Problems
Mr Richard Scott-Watson, Orthopaedic Expert Witness since 1990, having completed over 22000 reports. As well as his Orthopaedic qualifications, he holds the DDAM (Disability qualification) and CUEW (Expert Witness qualification). We have to opportunity to catch up with Richard, who speaks on how road traffic accidents could be reduced via technology, and why agencies can be bad news for expert witnesses and the legal industry.
What do you do when previous medical reports do not enable you to come to a viable, strong conclusion?
I find this as quite a common problem, especially with initial MedCo reports. Almost all of these reports are not undertaken with the care required, and many are rushed through in only a few minutes. It is unsurprising that they contain little or no useable information. What makes it worse is when the claimant has not been able to check the report, as errors are common. This can lead to a report being disclosed that contains fundamental errors that could seriously affect the case – last time I saw this was two weeks ago. It is quite common.
As you often deal with road traffic accidents (RTA), do you think technology advancements - such as smart motorways, or even driverless cars – will see a reduction of the cases you will see? What do you think the future of RTA will be?
It is strange to how vehicle technology affects injury. We already have airbags, but these do not activate if the car is stationary and if it is hit from the rear (the only direction a whiplash effect occurs). Thus in one of the most common scenarios seen in RTA, the main defence built into the vehicle is designed not to function. This does not bode well for future injury reduction, which could be significantly reduced if technology is used properly.
When we last spoke, you revealed how agencies can affect your work and firms’ responses to expert witnesses; what do you think could be done to reduce this problem?
Agencies buy cases, in volume. Technically this is illegal, but they get round it somehow and so collar the market. The way MedCo was set up made this much worse as shell companies popped up like rabbits, although that has now been stopped. The problem is that the agency will take 50 – 80% of the fee, meaning that the expert, GP or Consultant, is not remunerated correctly for their work. This in turn shortens appointment times and reduces quality, especially in the GP expert market. Although, this is a market the agencies need to be regulated far tighter and a maximum percentage take should be set (I would put it at 20% of all fees).
In what other ways do you think law firms could find appropriate expert witnesses, rather than instructing agencies?
Finding an expert is not difficult. There are various registers, all online as well as some ‘non-agencies’ (MEOL and Think for Two), that collect lawyers and experts and connect them but do not take huge fees. Many solicitors use agencies so that the expert is paid via a contract with the agency. This is wholly unnecessary as a claimant solicitor in a case where liability is admitted can claim the expert’s fee as a disbursement, so there is no need for a delay and no need for the solicitor to be out of pocket.
What could be done to improve MedCo systems?
MedCo was set up with good intentions, badly. The initial report is done too early and without notes, so claimants just go along and say what they want. There is usually little objective evidence to find so they cannot be contradicted and in effect there is no ‘opinion’. Coupled with the very short appointment that many (not all) GP experts use, often with a claimant questionnaire that is just entered into the computer, a system to increase fraud could not have been better designed. The GP expert does not even know that there was an injury, time off work, disability or anything else other than on the say of the claimant. By the time I see them (12 – 18 months after) not only do the initial reports prove wide of the mark (I have only ever seen two that were wholly accurate out of probably 10,000), but the initial claimed level of disability (usually severe for everything) is shown to be completely unsupportable from the records and the actual level of disability that resulted is invariably far less than claimed in the initial report.
Contact:
Carol Couzens (Secretary)
Tel/fax: 01384 441126
After many years of Trust and Estate Litigation and Family Law Property Litigation, Warwick Gilbertson developed an interest in not just pulling entities apart, but also in putting them together. From 2007 onwards, he worked in the area of Estate Planning, Trusts and Succession. After studying for his law degree through the University of Tasmania from 1969 to 1972, Warwick has achieved a lot in his legal career. He shares with us his best lessons and legal cases.
What do you think gave you the inspiration to choose this career path?
As to my inspiration, as a Lawyer I have always enjoyed the cut and thrust of Litigation, the representation of persons before the Courts and the enjoyment you receive from helping somebody through a difficult time in their life. I was brought up in a family where all persons, regardless of their background, were entitled to be respected and be treated equally and with fairness. It was logical when faced with a decision as to a future career that I would, when given that form of choice, choose law.
After many years of Litigation practice in Family Law and Estate Litigation, I formed a view that I could be of assistance to my clients by providing advice from a solicitor with knowledge in the practice of Wills, Estate Administration, Estate Litigation, Trust & Equity, Family Law and Taxation. It was something that was (to my way of thinking) a natural evolution as a legal practitioner. The clients of Turnbull Hill primarily consisted of families and small to medium enterprise businesses. We are in a time when "baby boomers" – of whom I am one! –spent most of their lives building up businesses and acquiring wealth, were considering what they would do with their assets and wealth and who would benefit from their efforts. It was a logical step in meeting the needs of our clients.
If you had chosen a different legal specialisation, what might it have been and why?
If I had chosen another legal specialisation when I was a young practitioner, it would have been Corporate Law. It is a fascinating area of law with many areas of specialisation within it. I have always enjoyed looking at organisations/entities, seeing how they are structured and where the power and control lies.
After years of dealing with estate planning, what do you find is the greatest reward of helping your clients?
My greatest reward with clients is when they see me as the person they trust. When you work in a team environment, a lawyer is only as good as the team around you. It is important that your team understand legally the nature of the work that they do and the manner in which you seek to operate. I have a firm belief that you are only as good as the person next to you.
Do you have particular cases throughout your legal life which stand as impacting milestones on your future?
What do you put my successful achievements down to?
I had never thought of my career in the sense of success or achievements. I would consider it as follows:
What are the biggest lessons learnt in teaching future generations of lawyers?
Is there anything else that you would like to add?
When I started practicing law in 1975, communication was face-to-face, letters were written and sent by post, copies were made with carbon paper, electric typewriters were modern equipment, phone calls were made with landlines through the receptionist giving you a line by inserting a plug and cord for an outside line. In the 40 years photocopiers have developed, Xerox machines revolutionised communication, facsimile machines then changed the speed of communication, document exchanges were introduced, and mobile phones went from being a box which was the approximate size of a brick, to a phone which you can put into your pocket. The phone is now your computer and mobile office. Now there are phone/email/"Skype" conferences and conversations and digital records are essential.
Document creation evolved from typewriters to various early types of word processing machines through to the modern computer with its integrated response in all forms of communication. These developments have revolutionised legal practice and continue to do so. The practitioner who does not adapt to the manner in which business is done these days, will become irrelevant and will be left behind.
It is important that you know how to research to teach yourself the law in a new area of practice. There will constantly be ongoing changes in the manner in which a legal practitioner is able to provide a service that is reasonably remunerated. When I started practice the "bread and butter" of a legal firm was Conveyancing and Personal Injury work. This is no longer the case. The capacity to change the areas in which one has expertise moving from one area to another will determine your longevity and the success of your legal career.
There is a challenge in the future for legal practitioners, both in the manner in which they deliver their service and the increasing challenge of commoditisation of legal services in our society.
It is a strange contradiction that in the age of 'the individual', the availability of information and documentation on the internet has led to the individual sourcing documents that lack individuality.
Legal Practitioners have an important future role in providing quality services if they are targeted specific to the particular and individual needs of members of our community, their businesses and organisations.
Despite everything that we read and hear from our leaders, change agents and the media – "one size does not fit all". In a time of significant social upheaval, as a legal practitioner I see my role as guiding my client through the maze of regulation and possible future conflict to enable them to achieve what they seek to happen now and in the future.
Law has never been more challenging and interesting.
Warwick Kenneth Gilbertson
Partner
www.turnbullhill.com.au
Ph: (02) 49048000 / +61(02) 49048000
My name is Warwick Kenneth Gilbertson. I was admitted as a Legal Practitioner of the Supreme Court of Tasmania, Australia, on 5 February 1975, having graduated from the University of Tasmania with a Bachelor of Laws on 14 December 1972.
On 11 July 1980, I was admitted as an Attorney, Solicitor and Proctor of the Supreme Court of New South Wales. I practiced as a Solicitor in Bathurst, New South Wales where, for a period of 20 years, I was the Litigation Partner of a legal practice in a roll as "trouble-shooter" representing clients of the firm in the Central Western of New South Wales and in the State and Federal Courts situate in Sydney and Parramatta in the areas of Family Law, Defacto Law, various forms of Estate Litigation, Criminal and Traffic Matters.
I have since 1993 been an Accredited Specialist in Family Law with the Law Society of NSW.
I am also an Associate Member of the Taxation Institute of Australia and a Registered Trust and Estate Practitioner with the Society of Trust and Estate Practitioners (STEP).
I have been a Partner in Turnbull Hill Lawyers since 2005, being the Partner in charge of the Wills and Estates, Contested Estates and Family Law sections.
As a Partner in charge of those sections, I supervise a team of lawyers in those various areas of practice.
Turnbull Hill is a large, regional practice in NSW with its central office in Newcastle and interviewing offices in Sydney and on the Central Coast.
Turnbull Hill Lawyers have been providing professional legal services to the people of Newcastle, Hunter, Central Cost and Sydney regions since 1969. The firm covers a wide range of areas of practice, including Family and Defacto Law, Wills and Estates, Conveyancing and Property, Claims, Criminal, Business Law, Commercial Litigation, Industrial Relations and Employment Law.
As a practice, we seek to provide to our clients good outcomes at a value for money price.
We are committed to using technology in communicating with our many clients and seek to provide legal services to our stake-holders in a twenty first century manner. Our commitment to the use of technology is evidenced by the presence on our staff of a fulltime digital marketeer, IT support, an operations manager and a non-legal chief executive officer.
It is the role of our support team to examine every function and system we have to evaluate its purpose and relevance and then to adjust the use to ensure that we provide relevant legal services to our clients in an efficient manner.
With work practices at Turnbull Hill Lawyers, our is a voyage of review/justify/adapt/ change/create. This will be a constant for us.
In regards to employment law and regulations, where do employers and businesses often go wrong, thus leading them into legal trouble?
The most common errors that I see employers and businesses often make, is ignoring employees' basic rights that they are entitled to, under the workers' compensation laws of Georgia. For example, employees are entitled to change physicians from a doctor on their employer's ‘panel of physicians’ to another doctor on the same panel without prior Board approval. I commonly see employers deny this right to employees which routinely involves or leads to an injured worker calling my office. Employers either don't have a panel posted, or they try to select a physician for the injured worker.
What are corporations’ main concerns regarding the benefits they provide to their workers? What should be done to lessen their concern?
Unfortunately, a fairly recent change in Georgia law capped medical treatment for non- catastrophic workers compensation claims in Georgia at 400 weeks. This has led to extreme delays and unfounded denials for medical treatment for injured workers, which in turn increases medical costs for insurance companies due to aggravation of medical conditions; this could be alleviated if an injured worker was provided with appropriate and timely medical care. By denying and delaying medical treatment, injured workers often are in need of additional surgeries and additional treatment which they would not otherwise need if employer/insurers would comply with the goal of medical treatment of the workers' compensation system in Georgia, which is to cure injured workers, provide them relief, or restore them to suitable employment.
What regulations do you feel could be altered to fit the compensations law, in order to ensure employees get the best treatment in their workplace?
An area that needs to be changed, involves injured workers who have been terminated for cause while working in light duty positions. When terminated via their authorised physician, it is deemed to be an economic change in condition for the worse, under Georgia workers' compensation law. Under this scenario, an injured worker must prove that he or she has been diligently attempting to perform his/her job duties under light duty work restrictions and is unable to procure or obtain employment due to these restrictions. This is a commonly litigated issue in Georgia, and, unfortunately, it can take several months to receive a hearing regarding whether the injured worker has met the burden of proving they have been performing a diligent job search. During this time, they have no way of paying their mortgage, car payments and other living expenses because they have no source of income. Further, it has proven to be extremely unlikely they would be offered employment by anyone while under light duty work restrictions. This circumstance creates an unfair burden on employees and provides employer/insurers with a way with great leverage to force injured workers into nominal settlements for otherwise worthy and legitimate workers' compensation claims.
How has workers’ compensation progressed since you first began practising and how do you make a difference in this field?
Since I began practicing in 2007, workers' compensation laws have seemed to regress every year to gradually become more favourable to employers/insurers. It's death by a thousand cuts for injured workers in Georgia. The 400 week medical cap has passed during that time, and law has been settled enabling insurance companies and their representatives to have ex parte communications with injured workers' authorised treating physicians. Fortunately, injured workers' attorneys have recognised this gradual eroding of injured workers' fights in Georgia and are taking a proactive stance toward reversing this trend.
Can private insurers do anything to ensure workers’ compensation is fairy granted?
To ensure workers' compensation benefits are fairly granted to them, injured workers should immediately report work accidents to their supervisor. Further, it is extremely important that injured workers give all medical providers an accurate history of their injury so that it is documented in all medical records and reports.
Lastly, injured workers, on occasion, have jeopardised their entitlement to workers' compensation benefits before they are ever involved in an injury at work. For example, if an injured worker misrepresents or omits on his/her job application that they have received medical treatment for a particular body part before, and they later injure that body part on the job, the employer/insurer may deny treatment to that employee if they relied on that statement in making the decision to hire them, knowing that they wouldn't have put the employee in that particular job if the employer had known about the prior injury. Therefore, the employee needs to be completely honest on all employment applications to ensure receipt of workers' compensation benefits should they later be injured on the job.
William F. Trey Underwood, III
Law Offices of William F. Underwood, III, P.C.
515 N. Westover Blvd., Suite C.
Albany, GA 31707
(229) 888-0888
www.puttingpeoplefirst.law
After graduation, Trey put that simple but powerful idea into practice. The Dougherty Judicial Circuit District Attorney’s office entrusted him with handling the prosecution of felony, misdemeanor, and juvenile cases. His tireless, determined work for the District Attorney provided Trey with valuable trial experience as lead counsel in jury trials.
Recognising that individuals affected by injuries on the job or serious personal injuries need a strong, knowledgeable supporter willing to fight for justice, Trey opened his own firm dedicated to representing these victims in 2010. His knowledge and experience in handling personal injury and workers’ compensation cases led to success, and to justice for the victims: Trey has recovered millions of dollars for his clients since opening his practice.
We now hear from Edward Lui, who briefly touches on the Taiwanese legal sector and how Taiwan is trying to mark their footprint in the global market.
Ever since 2008, more and more cross border disputes I was instructed on were debt collection cases, and most of them were, not just some simple default in payments, but resulted from the financial crisis the whole world was facing, which made such disputes a lot more complicated than they should have been. Insolvency proceedings can be started, either voluntarily or by petition of the creditor(s). Furthermore, different industries may have different focuses that needed to be carefully scrutinised. Taking solar energy as an example, the dispute would involve, not only private companies, but public interest where local government could step in, maybe by using the incentive/subsidy programme or tax regulations. All these factors made creditors harder to collect their debts, for debtors are furnished with more bases to defend and/or to justify their ‘breach of contract’. Therefore, the coordination with local lawyers is crucial, so that the client trying to collect the payments can clearly understand what obstacles they need to deal with, beforehand, and be advised of the best strategy from local law perspective.
For this kind of international commercial disputes, arbitration is always one of the most common mechanisms for dispute resolution. However, because Taiwan is not a signatory country of the New York Convention, unlike other international enterprises who would prefer having their disputes resolved in their home town, it may not be the same for Taiwanese companies. Considering the enforceability of the arbitral award, Taiwanese companies may tend to accept, or even propose, to resort to SIAC, HKIAC or other international arbitration associations if involving cross border transactions, and to have their future disputes arbitrated in counties where New York Convention applies. After all, it could be problematic for a Taiwan arbitral award to be recognised and enforced in other jurisdictions.
Nonetheless, we have represented a Taiwanese company in an arbitration conducted in Taiwan against a US company. After we successfully got a favourable award, we tried to enforce it in the States. This was, to our knowledge, the very first case where a US court dealt with Taiwan arbitral award. Though the US court refused to directly enforce the arbitral award for Taiwan is not one of the New York Convention signatories, the court eventually accepted our arguments and recognised the Taiwan court ruling which enforced the arbitral award, ordering this US company to pay our client accordingly. This outcome, although not entirely satisfactory because it was not the Taiwan arbitral award being enforced, but the Taiwan court decision, still, this progress to some extent encourages and confirms, at least for US-related cases, arbitration in Taiwan can be an option in international dispute resolution regime. Yet, we expect more and more foreign courts will recognise and enforce Taiwan arbitral awards so that Taiwan can take a more active role in the global market.
Edward Liu | Partner
Chen & Lin Attorneys-at-Law
Bank Tower, 12th Floor
205 Tun Hwa North Road
Taipei 105
Taiwan
Tel: +886 2 2715 0270
Fax: +886 2 2514 7510
edwardliu@chenandlin.com
www.chenandlin.com
I graduated from National Taiwan University in 2002. In 2005, I passed the bar examination in Taiwan and started my law practice. Two years later, I went to New York University School of Law, majoring in corporate law, where I obtained my master degree in 2008. In the same year, I passed the New York State Bar Examination.
For more than a decade of experience practicing law, I primarily focus on cross-border dispute resolution, including litigation, mediation and arbitration. I had handled many cases involving in commercial disputes, patent infringement, patent licensing, prosecution against violation of Trade Secret Act and defending white collar crimes, etc. I am well experienced in management of transnational cases and coordination with clients/counsels from different jurisdictions.
I serve both local and international clients, in different fields of businesses, including high-tech, pharmaceutical, cosmetic, insurance companies and, as their general legal counsel, has been providing satisfactory advices to the clients. I am now a partner at Chen & Lin and lead the litigation team of the firm.
Chen & Lin is a firm that engages in a diverse and sophisticated general business practice in Taiwan. We provide our clients with a full range of business law services, including corporate, securities, finance, intellectual property and all types of business litigation.
We represent a wide variety of clients including a world-class semiconductor foundry company, several multinational corporations and many major national and international players in hi-tech and information industry involved in patent, copyright, trademark and trade secrete license or infringement, telecommunication, depositary receipt or convertible bond issuance, joint venture, merger and acquisition, trade practices, syndicated loan arrangement and environment protection.
Jeff Cone has assisted a wide variety of law firms and clients, including national and international law firms and clients; as founder of the Cone Consulting Group in Portland, Oregon, Jeff speaks to us about forensic accounting and why attorneys should seek out a forensic accountant.
As a CPA why have you focused on Forensic Accounting?
After doing audits for 10 years with what is now known as the Big Four accounting firms, I became increasingly comfortable working with attorneys on matters involving complex financial information. I can usually come up with creative approaches to complex issues and strategies that are helpful in litigation and criminal proceedings.
Have you ever testified regarding accounting matters?
Yes. Testifying about forensic accounting matters can be challenging due to the constraints of the Q&A format of trial and the need to present complex financial analyses and findings. Attorneys need to make sure their forensic accountant is adept in this environment.
Can you give us an example of where you had significant impact?
An executive was accused of embezzling one million dollars from a company leading to its demise. The accusations were based on deficient forensic work where government accountants “cherry-picked” transactions that they concluded represented embezzlement. I performed a comprehensive analysis of the executive’s personal bank and credit card activity and demonstrated that no funds were actually embezzled.
That is interesting, how can that have occurred?
First, the government accepted the company’s allegations without proper skepticism. They found suspicious looking payments to the executive and without adequate investigation they concluded that it represented theft by the executive. My comprehensive review of the executive’s personal accounts revealed that most of these payments represented the repayment of short-term loans or for expense reimbursement that was not well documented, but still legitimate. This involved compiling bank and credit card statements for several years and reviewing thousands of transactions.
This involved working with significant amounts of data. Do you often work with large volumes of data?
Absolutely, I assisted in a matter that involved approximately 40 million timecard entries, from two different timecard systems, for a supermarket chain involving allegations that employees were not being given sufficient break times. I was able to help the attorneys quantify the scope of the problem that led to the settlement of the matter.
Should an attorney involve forensic accountants in the discovery process?
Yes, forensic accountants can be very helpful during discovery to make sure all the relevant accounting and underlying electronic data is either requested or produced. I have helped in both framing discovery requests and evaluating the completeness of discovery produced. Discovery of accounting data can be particularly challenging, as only accounting data for the relevant periods should be requested or produced.
There are numerous accounting software programmes. How do you deal with all these different programmes?
I usually arrange to export relevant accounting data to a format that I can put into forensic accounting software I have developed. This avoids the problem with having to own the software the accounting data is in. Further, most accounting software is not generally adept at finding and analysing transactions as required for forensic analysis. My software includes special tools to transfer relevant data out of QuickBooks.
Jeffrey A. Cone, CPA
Cone Consulting Group, Ltd
15582 S Howards Mill Rd
Mulino, OR 97042
503.776.0224
Since the late 1980’s Jeff has provided forensic accounting and database analysis services to legal teams and businesses. He has experience with all phases of the dispute process, including initial investigation of the facts, developing strategy, assisting with both document and electronic discovery, analysing and explaining complex data, and providing deposition and trial testimony as an expert witness. He has developed software tools to assist with data analysis and electronic discovery, including software to extract and analyse QuickBooks accounting data.
For more information please see www.ConeGroup.com.
Cone Consulting Group works with large and small law firms, corporations and government clients nationwide to uncover deeply-buried information for resolving disputes.
When you’re up against time and vast amounts of data, hire the professional who knows how to mine those files and find the evidence necessary to prove your point and resolve the dispute.
More than a CPA and more than a software programmer, Jeff Cone combines both these skills as a forensic accounting expert to empower your legal management team in unique ways. Whatever stage or kind of dispute you are involved with, Cone can help with over 20 years of valuable experience consulting, evaluating, and developing strategies. He has built his reputation on understanding, analyzing and interpreting data that’s produced or received in disputes and can effectively communicate issues and conclusions to everyone involved in a dispute be it attorneys, arbitrators, jurors, judges or business executives.
Michael Brindle QC has a vast amount of experience in a range of legal areas. He is often described as a “first-class advocate who has stunning legal insight” with an “Unparalleled knowledge of banking law”, is highly regarded in the commercial market, as well in fraud and civil law.
With an unprecedented amount of knowledge and experience in litigation and arbitration,
Michael has also been appointed as an expert in US proceedings on behalf of Bank of New York and also described as “Really at the top of his game” when sitting as an Arbitrator and as Counsel in arbitration disputes.
He has experience in both capacities of a wide range of arbitral regimes, including those under the auspices of the International Chamber of Commerce, the London Court of International Arbitration, SIAC, UNCITRAL and the City Disputes Panel, as well as ad hoc references.
How do you prepare yourself for complex arbitration?
I read the papers extensively. I also try to absorb the cultural differences between the parties, but as well as this, if English law applies, to isolate the crucial legal issues.
What different challenges do you face in USA Courts, in comparison to UK Courts?
I do not appear in US courts, but have sat in as an AAA [American Arbitration Association] arbitrator. I have found no particular challenges when doing so.
Since you were called to the Bar in 1975, what has been the most significant change that has impacted your work?
The (failed) attempt by solicitors to try take over the work of the Bar.
What has been your favourite case since being called to the Bar, and why?
Bank Mellat v the Treasury 92013) in the Supreme Court. I won 5:4, but the case has transformed public law in England. An Iranian bank succeeded in an argument that the British Government had behaved irrationally towards in the application of sanctions against involvement in potential nuclear-related activities.
Michael Brindle QC
Fountain Court Chambers
Fountain Court, Temple
London EC4Y 9DH
The “very impressive” Michael Brindle QC is a highly regarded and hugely-experienced Silk with a considerable international and commercial practice. His broadly based practice encompasses commercial litigation, international arbitration, banking and finance, company law, professional negligence in financial and commercial matters, insurance and international trade. In this regard, Michael Brindle QC is currently listed by Chambers & Partners 2016 UK edition as a “Star at the Bar”, as well as previously being awarded “Barrister of the Year” as the Lawyer Awards 2010.
The “brilliant heavyweight litigator” Michael Brindle QC “first-class lawyer” has experience in City-related matters, including litigation arising out of audits, take-overs and rights issues.
Michael Brindle QC regularly provides expert evidence on English law to foreign courts or tribunals and has done so recently for cases before courts in the USA.
While it is possible to trace Chambers’ origins back to the early part of the Twentieth Century (when it is thought to have been based in Hare Court), its period of sustained success dates from after the Second World War. Over the years, members of Fountain Court Chambers have appeared in many landmark cases and high profile commercial disputes. Numerous members of chambers have gone on to hold high judicial office. Fountain Court is also proud of its historic and continuing academic links. In September 2014 Chambers opened a new office in Singapore’s financial district, in the Ocean Financial Centre. This is an exciting and significant development in the evolution of Fountain Court, with a view to assisting the establishment of the new Singapore International Commercial Court in 2015.
Fountain Court Chambers represent financial institutions and funds, insurers and re-insurers, private clients and government, taking instruction from solicitors or directly from in-house counsel.
Their clients continue to express their appreciation of both our barristers’ legal skills and their personalities.
Stuart Hislop has been involved with medico legal work for 23 years and works both for the prosecution and defence. He carries out between 30 and 35 reports per year and attends court less than once per year as an expert witness; he speaks with Lawyer Monthly about the cases he often sees and what could be done to avoid lawsuits.
What are common cases you are instructed on as an expert witness and why do they arise so often?
The most common cases I receive are trauma cases but also cancer cases where the initial cancer has been missed by the relevant clinical practitioner. They tend to arise because there seem to be a lack of education for primary care practitioners particularly medical practitioners. Cancer awareness and diagnosis is now core clinical professional development for the dental team, however there have been several cases where cancers have been missed by dentists. There is occasionally a problem with the practitioner not believing patients symptoms or not having the clinical acumen to detect the clinical problem.
How has the medical profession changed over the years, and how have these changes affected lawsuits?
The biggest change in medico legal practice for me has been the introduction of the duty of candour and the involvement of patients in their own treatment. The duty of candour should reduce the number of lawsuits as should the patient involvement. One way of improving the candour would be to have no fault compensation.
With cancer being so common, do you think any changes could be made to avoid lawsuits involving the conditions?
There needs to be more education for primary care professionals, but also more time for consultation in primary care to help elucidate the complexities of the problem. It is a balance because now we are seeing a lot of trivial conditions being referred to secondary care because of the worry of missing something. We also need to improve our communication with patients as I see some lawsuits due to poor communication with the patients and a misunderstanding of prognosis, side effects and complications.
If you could alter one thing about the process you undergo as an expert witness, what would you change?
Generally, I think the system works well. I would like to see improvements in the time the legal aid board pays for cases, but I think generally I have no real problems.
Stuart Hislop
01563 527488
stuart.hislop@aaaht.scot.nhs.uk
My name is Stuart Hislop and I am a consultant oral and maxillofacial/ head and neck surgeon specialising in head and neck cancer and its reconstruction. My areas of expertise are oral cancer, head and neck skin cancer and salivary gland cancer. I am also part of the skull base oncology team which involves maxillofacial surgeons, ENT surgeons and neurosurgeons. I also specialise in advanced reconstruction following ablative surgery. This includes the raining of distant flaps and microvascular reconstruction. I am also involved in the treatment of facial injuries. I participate in research, audit and clinical governance.
Finance Monthly speaks to lawyer Rona Kapsi about trends within Maritime Law.
What’s your general opinion on the current position of vessel financing environment realized since 2008?
The maritime sector is one of the sectors affected by the global crisis after 2008. The global crisis started a chain reaction causing a constriction in trade, resulting in a negative impact on both the shipping and banking sectors, which, in turn, had adverse effects on the rapid financing of the maritime sector. The maritime sector, which takes up little space on their balance sheets, has become a sector that larger banks, and, in particular European banks, want to exclude from their portfolios due to the losses it causes them. Other than a few banks that have the expertise and are efficient in the maritime field, several German banks that do not consider maritime clients as their target audience made the decision to withdraw entirely from the maritime sector, especially in Turkey. They have chosen to transfer the credits to third parties by giving 30-40% discounts on the debt amount of the principal, for the sole purpose of removing it from their balance sheets. While executing such transfers, the loan repayment performance of the indebted companies have not been considered. They removed the companies that do not have other source of income and are not managed in a professional manner and have limited the number of vessels in their portfolio.
After the unfavorable market in 2016, improvement in the sector is being projected by ship owners and shipyards in 2017 onwards. What is your opinion on this? Where do you think the financial opportunities will come from?
2015 was quite fruitful for tanker owners but, as mentioned, 2016 was not a productive year. Currently, the conditions for dry cargo and tanker markets look positive and I can confidently say that Turkey has a very influential position in the region in relation to shipyards.
It is impossible to find availability repair and docking services at the shipyards. This is an indicator of the success of the services provided by the shipyards in the region.
However, the maritime sector is no longer a primary sector whose investment is supported by European Banks, neither in relation to ship owners nor to shipyards. The rapid fluctuations caused a disincentive to banks which would be interested in earning money in a short period of time through high interest rates expected for a limited number of banks. The European Banks consider the labor force used in relation to maritime loans under €20 million as unproductive. Additionally, banks prefer giving loans to holding companies that have a more professional administration structure to family companies. Due to this, it would not be easy for Turkish ship owners and shipyards to find foreign financing. On the other hand, local banks continue to actively provide a support to the maritime sector. However, during client selection, the local banks consider not only the financing of the vessel, but also the previous loan transactions of their clients and their relationship with the banks during the previous crisis period.
Today, firms which continued their activities find themselves to be grateful to the local banks that supported them during the financial crisis. This has changed the sectorial companies’ opinion on the banks. Although local banks offer higher interest rates when compared to foreign banks, they now have more customers in the sector due to the support they’ve offered to their clients. Local banks will continue to provide their financial support, however, access to foreign financing sources will gradually become difficult.
What is the risk perception in respect of maritime assets and, among others, are there any less-risky vessel types? How eager are the banks to take maritime investment risks?
While the foreign finance institutions make sector assessments for long terms, local finance institutions offer lending for smaller amounts and shorter terms. Foreign finance institutions prefer providing funds to the publicly-traded firms or maritime companies, rather than financing an individual vessel.
Before the 2008 crisis, when the market was at its best, financing of general cargo vessels was as common as financing larger ships. Perhaps this has deteriorated more rapidly after the crisis, in comparison with other vessel types. Is it likely that the banks specialised in global vessel financing may again show such an interest in the short and medium term? How accessible would financing be for small vessels and ship owners?
As far as local banks are concerned, coaster-style small vessels will always continue to be attractive to them, however, they are out of the scope for foreign banks. In my opinion, local banks will continue to finance coasters by taking additional guarantees, such as maritime hypothecation.
In this context, how risky are the short-distance sea transports and general cargo vessels, according to banks?
Local banks will always deal with local trade. Nevertheless, there will always be requests for additional guarantees. Most of the local banks do not consider the clients they finance as business partners and they do not consider vessel loan transactions as project financing – to them, this is asset financing. Hence, this always necessitates additional guarantee requests that are not ship mortgages.
Have European banks overcome the crisis or are there any new mergers and consolidations in the future?
As far as European Banks are concerned, the issue is not restricted only to a maritime crisis. Actually, one of the reasons behind the crisis in the maritime sector is the global banking crisis. Many banks leave the maritime sector, make major discounts on their credits, sell the credit or pressuring their clients to settle the loan, as they’re not familiar with maritime market and they don’t have control over the market. Although the risks are generally small, maritime creates significant issues in the balance sheets of foreign banks. Overall, banks are doing well and I don’t think that they will be faced with any unfortunate surprises in the near future.
The vessel prices reached rock bottom, which presents a great opportunity for the ship owners who would like to enlarge their fleets. On the other hand, financing opportunities are very scarce too. So much that, even if there are financial means, it is not possible for some vessels to generate enough daily revenue to make the repayments in the current markets. In this regard, would it be less risky for the banks if they finance the vessel purchases at the current lower prices with more convenient payment conditions and then increase the repayments when the vessel prices increase?
The developments in our maritime sector gained momentum after 1995, but real growth was achieved in the beginning of 2000s, due to the involvement of foreign banks.
During those years, banks and finance institutions played a great role both in the second-hand market and in supporting the construction of new ships. However, when we’re in foreign countries, we see companies making continuous investments to the maritime sector. It is not possible to reach a strong capital structure within a short period of time. Although rapid growth seems attractive to people, the status of the companies that do not have the adequate capital structure to overcome the crisis will always be a danger. In the maritime field, the most impossible situation can be encountered. It is vital to ensure that your company has a strong capital at all times to take the necessary measures and be able to position itself in the event of a crisis. Instead of targeting a rapid growth for their companies in the short run, the partners of the company should target a company structure, which is managed professionally, maintains the speed of growth within the frame of a specific plan and ensures survival by relying on its strong capital structure in case of a risk. A consistent growth should be targeted; our recent experiences showed us that a rapid rise might lead to a sharp decline.
Finally, we are all aware that standards such as Basel 3, which require greater transparency, have been introduced. In this respect, what are your suggestions to the Turkish ship owners about the transparency requirements that need to be satisfied by banks in the future?
First of all, they must ensure a more professional administrative structure. Many banks have actually witnessed the problems which occurred in family companies. Having witnessed issues resulting from family-related problems, banks which previously had a large number of clients in Turkey have now stopped to gravitate towards the country. Family members can be the partners of the company but their personal issues should not affect the daily business of the company. Besides, transparency in the capital structure is also required. Evidence about the source of the capital should be made available. Now there is no off-the books money. The companies should be professionally managed, their accounts should be audited and the audit reports should be submitted to the banks regularly. Today, the application forms of the banks that needs to be filled by standard clients require the name of the audit firms and lawyers. Refraining from auditing may result in saving a small amount, but it is important to mention that the companies that submit regular audit reports have better reputation in the eyes of banks.
Website: http://www.aktlaw.com
Stewart, you have managed law firms for many years; what do you think is the most important thing to take into account to ensure it is managed to the best standard?
You need an understanding of what a fee earner needs in order to earn fees in the most cost effective and efficient way. As a fee earner (non-qualified) in the past, I have first-hand experience of what I needed in order to run my caseload well. You need systems in place that not only support, but enhance the fee earning process, and a system that does not require too much hands-on minute-by-minute observation by individuals and can run on their own. Systems that always require ongoing communication with a particular person or people, are not efficient; what is needed is a great deal of autonomy for fee earners in the operation of their caseload and in their dealings with customers. Solicitors are intelligent and highly motivated and don’t like being micro-managed; a management and remuneration policy that is hands-off but carefully monitored with different targets (weekly, monthly, annually) need to be put in place to ensure the correct level of billing.
What do you think is the most challenging aspect of ensuring you meet your clients’ needs?
Firstly understanding what those needs are and ensuring very effective communication from the start about the prospects, the length of time, the risks, the costs; and then ensuring that these are re-visited at regular intervals so the customer is aware and is making the decisions.
Raanan, how do you decipher on what civil litigation cases are suitable for your expertise?
I aim to take on complicated cases, either cross jurisdiction or cases with complex legal issues involving cross disciplines. I believe my strength is in managing the case to ensure its budget, progress and objectives are met.
What differences do you encounter when representing individual clients, opposed to corporate clients?
Individuals usually require far more attention in understanding the process and managing their budget. Often, they also require moral support as the process is never easy to go through.
What would you both account towards exceptional customer service?
Raanan: Speedy response time, superb communication and be proactive rather than reactive. I don’t get chased by clients and when I do, I always like telling them “you are too late – it is already done”.
Stewart: As Raanan said above, superb communication. Detailed explanations as to where we are, where we’re going and possible outcomes. Also, being fully and directly available to the customer, not hiding behind a receptionist or secretary.
In what ways was 2017 good for Berlad Graham? What accounts towards this and how will you be moving forward to ensure it carries on?
We grow by recruiting consultants and in 2017 we had three consultants joining us who have done very well and have made a tremendous positive impact.
We have had a continuation of consultants coming on board and improving the caseload of all those in the firm who are not yet up to capacity. We assist in this by promoting our consultants using social media as well as asking ALL customers to provide us with testimonials, which we then use in further promotion. As the consultants do a fantastic job; we often get positive testimonials so we can use these on a regular basis.
Is there anything else you would like to add?
Being a virtual law firm, based in the cloud, all of our consultants are self-employed. We provide them, and pay for, everything they need in order to run their caseload and do nothing other than fee earning. Then as fees come in, we split them according to the percentage agreement between us. This allows the consultants to have total control over where they work and when they work and how much they want to earn, without having to travel to the office each day, without having non-fee earning duties and no office politics. Couple all of this with the fact that we give back to the consultants a very high percentage of what they earn, as our overheads are lower than a traditional law firm, and everyone is a winner.
Raanan Berlad
raanan.berlad@berladgrahamllp.com
t +44 (0) 1895 457474
m +44 (0) 7956 432616
Stewart Graham
stewart.graham@berladgrahamllp.com
t +44 (0) 1895 457474
m +44 (0) 7920 114572
Raanan is an expert in the areas of Family law, including Divorce and Matrimonial and Dispute Resolution.
He was a City Solicitor until 2009 when he became Head of Dispute Resolution at a Thames Valley firm. In 2011, together with Stewart Graham, he established Berlad Graham LLP. Before Raanan practiced law he had 13 years’ experience within a commercial environment at a global food retailer, which allows him to bring a commercial approach to law. It also means Raanan understands and fully adopts an exceptional customer service mentality towards his customers.
Stewart has managed law firms in Central London and the South East for many years.
He has always removed antiquated practices and introduced modern ways of working to the benefit of all. His first job, in any new role, was to ask clients what ‘they’ wanted and he then delivered it. He fully embraces modern communication methods and focuses on adding value to the service offered to our customers. Stewart understands that clients want good value and excellent service; if a client asks ‘Can you..?’ Stewart’s answer is ‘yes’ and he then exceeds expectations.Both Raanan and Stewart realised a long time ago that the way to gain and retain clients was to ensure they received exceptional customer service. It is very important to have a very good level of knowledge and skills in dealing with legal issues. There is nothing worse than your Solicitor saying to you “Here are your two options, pick one.” That is not advice and advice is what you’re paying them for. They should be advising you on which way to go from a legal and strategic point of view. This is what happens at Berlad Graham.
In the years you have been practicing, how have you seen the international trade scene evolve?
Free-trade agreements shape significantly the international trade landscape for the last couple decades. With the majority of countries involved in bilateral and multilateral trade agreements, e.g. ASEAN Free Trade Area, NAFTA, EEA, APEC that are still functioning nowadays, tariffs are removed or reduced and services and goods become more accessible and affordable; enterprises enjoy more stable and safer environment for their investments; and the strength of international cooperation is evidenced as we see international organisations, such as WTO, have substantially contributed to international trading, leading to a remarkable and fruitful development of the global economics.
During its course, several features of international trade can be observed over the recent years. Developing countries in Asia and Latin America, including China, Mexico, India and Brazil, become important partners in global trades. There is also a rising trend in South-South trade, partially because of the changing of the international supply chains, as today a substantial share of the production processes of global supply chain is taking place in developing countries. The development of transportation in cost-saving and improving efficiency, as well as the emergence of e-commerce has created more opportunity for small and medium-sized businesses. It is not until the global economy recession since 2008 that the political support for international free trade started to weaken, shaping a different international trade landscape for today from the past scores.
How would you describe the current international trade landscape and what are the hottest talking points today?
Inequality in different personae (among countries, corporates, and social classes for example), but in fact all centring around the low-growth of world economics, has emerged into the main theme and call for the changes that may damage the international free trade nowadays.
Two illustrations can be provided: first, the fierce attack from the US President. President Trump pledges to bring corporate activities and manufacturing jobs back and to correct the unfairness the States has been suffered in various free trade agreements. He withdrew from Trans-Pacific Partnership, questioned the WTO, and called NAFTA ‘the worst trade deal in... the history of [the US].’ Second, Brexit. There are criticisms on the EU for UK’s immigrant policies, unemployment rates, and economical losses. However, leaving the EU disqualifies UK of the enjoyment of the EU's internal market, meaning potential increase in tariffs, administrative burdens, and financial costs of trades, as well as other non-tariffs barriers.
However, most countries are still determined to oppose protectionism and believe in free trade among countries. It appears to be the consensus of developing countries to support open trade based on global rules. For example, Eurasian Economic Union (EAEU), consist of Armenia, Belarus, Kazakhstan, Kyrgyzstan and Russia, is approaching Latin America countries such as Brazil, Bolivia, Nicaragua, for trading on aircrafts and others (e.g. energy-related projects). Some important members of EU also march to defend the idea—the four-year negotiation between the EU and Japan has finally reached an Economic Partnership Agreement recently. Also, as an important trading country, China will always be open to the outside world. In fact, in the 12th G20 Summit, Chinese president Xi Jinping just gave a speech to warrant China’s support to the multilateral trading system and an open global economy.
Which do you think is the most important country of 2018 for companies to be keeping their eyes on, in relation to trading opportunities?
After years of recession, 2018 still seems to be a year full of opportunities for international trading and investment for most of countries.
As an emerging market, though questions never cease, China’s growth and development is well-evidenced. China has the largest and fast growing consumer market, especially considering its increasing mid-class consumer. It is reported that the majority of China's total consumption has historically centred on essential items such as food, beverages, clothing and footwear. But going forward, higher spending is expected on cars, luxury goods, financial services and health, as average disposable income levels rise. China has been considering to reach free trade agreements with EU, Canada and other countries. In addition, a series of domestic policy changes, including industrial guiding policies, also herald China’s commitment to welcome and encourage international trades for companies. Therefore, China is expected to stay in the line of the most lucrative markets around the globe for the next decade.
Yunfeng Xing
Partner
www.broadbright.com
Mr. Yunfeng Xing, before he joined Broad & Bright Law Firm as Partner in 2016, and his performance as special advisor in Slaughter and May in 2015, had served in the Foreign Investment Management Department of MOFCOM from 1995 to 2014. Mr. Xing was responsible for formulating the rules and policies concerning foreign investment and approval of establishment of the foreign investment companies, and he participated into the drafting and formulating of the Foreign Investment Law, the Catalogue for the Guidance of Foreign Investment Industries and the foreign acquisitions regulations. Mr. Xing also engaged in the establishment of national security review system for mergers involved foreign capital. Mr. Xing is proficient in foreign investment laws and regulations, and has a wealth of experience of anti-monopoly and outbound investment.
