For some at the Bar, innovation and technology are anathema, an insult to an old and prestigious profession which has weathered many changes over the centuries without fundamentally altering its structure. For others, innovation and technology are exciting and energising, a way to ensure that the Bar endures as a thriving profession well into the future. Two of those excited and energised people are Simon and Katy Gittins, founders of Absolute Barrister. I speak to them about their experience of technology and innovation at the Bar over a Skype call on a Sunday morning.
In a nutshell, their company supplies legal services using barristers and market-leading technology, combining direct access barristers and technology to increase efficiency and provide predictable costs for the client. ‘Client management is dealing with worry,’ Katy explains. ‘The technology allows us to answer that worry immediately. The client can upload their information and immediately the barrister has access to it and can add a reassuring reply. Only the technology can do that.’
Simon and Katy don’t want people to have to pay substantial fees for barristers to do something that artificial intelligence (AI) can do better and more quickly. ‘Disclosure is a good example,’ Simon explains. ‘It can be boring so often junior lawyers will fail to pick up everything. AI doesn’t get bored and does the job in a fraction of the time. It won’t work for everything, but allows barristers to work efficiently. The expert barrister can be used in the place where they are really needed.’
I ask about their business model. Simon and Katy say that they have redesigned the way legal services are supplied from the bottom up, using the very latest technology. ‘We are also the first, that we are aware of, to offer 0% APR for clients – we have been able to do that with sofas for years but something as important as legal services?! We will continue to jump through legal, regulatory and technical hoops to make access to justice not only cost effective but a practical reality.’
A key feature is the fixed fee structure. Simon and Katy’s early motivation to try something different was born partly from their frustration about costs. In early practice, Katy found herself applying for solicitors’ costs of £2,000 in a simple case where the solicitor simply handed her the papers: ‘This seemed unfair. It is not that the barrister should have received that fee, but that the solicitor shouldn’t.’ Katy explains that one of the problems with the hourly charging model is that clients are reluctant to give their lawyers more information or ask any questions outside a scheduled conference because they see their legal fees skyrocketing. ‘The last thing you want is for people to sit on their stuff and land it on you at a conference for fear of extra fees. If the barrister knows about it early, they can deal with it.’
Simon and Katy argue that fixed fees are the future across the legal sector. ‘There will be a space for hourly rates in the future at the very top of the field in each sector, but not everywhere,’ Simon says. ‘We predict that the industry will switch to a fixed fee structure in the next generation. It is about affordability. Cost is currently detached from quality and needs ultimately to be related not just to quality but to the value added. Do clients need to pay lawyers a percentage of their damages with a cast iron case? No. It’s a bit like asking your builder to build your extension, pay him for his time and give him a slice of the equity increase in the house. The hourly rate model has been around for 600 years and it is not fit for purpose. The system doesn’t take into account ways of making the process more efficient and the cost of the tools to do that. If you invest in the technology to make the process more efficient, the consumer can only go to court and recover the costs of the shorter hours resulting from that efficiency. That is not fair and prevents innovation.’
Simon’s view is that regulation at all levels is stifling innovation. He argues that some services are regulated which do not need to be regulated, which drives up costs for the consumer. The current system requires lawyers, paid at an hourly rate, to do work that a non-lawyer could do. ‘A barrister should be able to sub-contract photocopying work to a professional photocopying shop, which has the technology to do it better and at a more reasonable fixed rate. Some regulated services don’t need to be regulated at all, and regulators are already looking at uncontested divorce.’
He is not against regulation, but against the wrong approach to regulation. ‘Successive governments focus on cost limits – on numbers – rather than on fair principles,’ Simon says. ‘The BSB is looking at changing regulation in a small way but they need to think bigger and move more quickly. Remove prescriptive regulation and return to a set of fair principles, and that will enable innovation. The BSB should proactively seek to stop the unnecessary regulation of activities which don’t carry significant risk; in fact quite the opposite. To force a client to engage someone else to do that task carries significantly greater cost, delay and stress to the client. It should also remove regulation for barrister activities which are not regulated for the general population, like photocopying, even if they are subcontracted by the barrister. This will enable barristers and barrister entities to provide innovative services to clients, services that enable cost effective access to justice.’
Looking at the supply of legal services as a whole, consumer choice and quality is essential, but Simon argues it is difficult to assess the quality of legal advice simply by seeking client feedback. ‘What if a barrister gives you fantastic legal advice but it’s not something you want to hear? There are also problems with looking at success rates. Legal representation is not something that you can do on a win/lose basis. Any barrister practising solely in murder will likely have an 89% conviction rate; that doesn’t make them a bad barrister.’ Measuring legal quality by success rates would discourage barristers taking bad cases, at the risk of developing a poor reputation. ‘If the Competition and Markets Authority is serious about measuring quality of advice, it needs to do samples on cases and go behind legal privilege, but that is difficult,’ he adds.
So how do you measure legal quality without going behind legal privilege? Simon argues that consumer feedback cannot be the primary mechanism because most consumers have insufficient experience of the wider market to be able to make a comparison. ‘Most people instructing lawyers have never purchased legal services before and consumers nearly always end up with the “stick or twist” problem. By the time they have enough information to assess quality it will cost them too much money or time to move to another provider. One way to ensure quality is to rely on corporate reputation. You can rely on Waitrose to make sure that your milk or butter will be good quality. Absolute Barrister relies on the same concept, adding value by ensuring the right barrister. If we don’t get you the right barrister, we’ll get you another one.’
What about feedback from the barristers they work with? ‘We have worked with about 300 barristers in our history, although not all at the same time,’ Simon tells me. ‘We use the right person for the right job. Barristers like the technology and enjoy working with us. They might have some frustrations with us as a start-up, but that is to be expected. We have made vast improvements and we will continue to improve. We have a waiting list of barristers wanting to work with us. We are looking to grow, but we want to do it right.’
Running a start-up is very different from the cut and thrust of traditional self-employed practice. I ask how the change affected their lifestyle. ‘It coincided with us having a family,’ Katy explains. ‘It’s been a bit squeaky at times. When it first started the kids were young and we had to be flexible on timing, mostly working through the night. The business would be bigger if it weren’t for our family, but we wouldn’t have it any other way. And we have managed to make the business compatible with family life.
‘Barristers who are mums are often not in chambers and we can use them because our structure can deal with that. In the early days, on the odd occasion we would be on the phone to a new client and the baby would start crying in the background. Clients were often relieved to hear the baby crying, because they were in a similar position.’ On one occasion, Katy found herself taking an important call standing on the trampoline in the back garden, to get away from the noise of her children playing. But revealing this allows clients to see the human side of the business. ‘You can shine a light on it and people don’t mind,’ Simon says. ‘The American start-up culture makes people more comfortable with the idea.’
What have they learned from their experience? Simon thinks that it is important to be willing to fail. ‘There are those in the legal industry who expect you to have turned your entire vision into market-leading operational processes from day one. There is a greater tolerance in the US to work with start-ups, to share in and work towards that vision. You have to be willing to fail. If you are not afraid of failing, that gives you confidence. If you are not willing to fail, you will never start.’
I shut down my laptop after our call feeling that change is in the air. Technology permeates every other aspect of our lives, allowing us to communicate, navigate, shop and even sleep more effectively. Why shouldn’t it permeate our professional lives too?