Published online by Cambridge University Press: 02 January 2018
This paper reveals some of the tactics that lawyers may use when conducting personal injury litigation. The research is empirically based by being drawn from structured interviews with a cross-section of practitioners. This qualitative evidence helps to place the rules of tort in a wider context and suggests that tactical considerations may affect the outcome of individual cases irrespective of their legal merits. A range of strategies are considered here to illustrate how they may be used at different points during the litigation. In addition, the paper updates our understanding of the compensation system by considering the practitioners' responses in the light of the major changes made to this area of practice in recent years. It reveals how negotiation tactics have developed since research in this area was last carried out. Overall, the paper adds to a very limited literature dealing with negotiation and settlement of personal injury claims in the UK.
I wish to thank Annette Morris, my fellow researcher on the wider project; Elizabeth Watkins, our field worker; Dewi Jones, my student research assistant; and the Institute for European Tort Law, based in Vienna, for its funding and support. I also wish to pay tribute to and acknowledge the formative influence of Don Harris, former Director of the Centre for Socio-Legal Studies at Oxford University. I attended in 1971 his course of lectures on the tort system in practice.
1. Lord Justice Jackson Review of Civil Litigation Costs: Final Report (2009) received data from insurers which indicated that only two cases out of 943 went to trial: ch 2, paras 3.3, 3.4. For earlier similar findings, see Report of the Royal Commission on Civil Liability and Compensation for Personal Injury Cmnd 7054, 1978, chairman Lord Pearson, vol 2 table 12, and the Lord Chancellor's Department Report of the Review Body on Civil Justice Cm 394, 1988. See also H Genn Judging Civil Justice (Cambridge, UK: Cambridge University Press, 2009) ch 2.
2. Patton, MQ Qualitative Research and Evaluation Methods: Integrating Theory and Practice (London: SAGE Publications, 4th edn, 2015)Google Scholar.
3. See the numerous textbooks and journals cited in J Lande ‘A framework for advancing negotiation theory: implications from a study of how lawyers reach agreement in pre-trial litigation’ (2014) 16 Cardozo J Conflict Resol 1. Among the Harvard University publications dealing with negotiation techniques in general are the Harvard Negotiation Law Review; Raiffa, H Negotiation Analysis: The Science and Art of Collaborative Decision Making (Cambridge, MA: Harvard University Press, 2007)Google Scholar; and Fisher, R and Ury, W Getting to Yes: Negotiating an Agreement Without Giving In (New York: Random House, 2012)Google Scholar. For consideration of how psychology affects the bargaining process, see Robbennolt, JK and Hans, VP The Psychology of Tort Law (New York: NYU Press, 2016)CrossRefGoogle Scholar.
4. Ross, HL Settled Out of Court: The Social Process of Insurance Claims Adjustment (Chicago: Aldine, 1970)Google Scholar. Earlier empirical work is noted by Kritzer, H ‘The (nearly) forgotten early empirical legal research’ in Cane, P and Kritzer, H (eds) The Oxford Handbook of Empirical Legal Research (Oxford: Oxford University Press, 2010) p 887 Google Scholar. An excellent historical account of the rise of loss adjusters and the standardisation of tort claims is given by S Issacharoff and JF Witt ‘The inevitability of aggregate settlement: an institutional account of American tort law’ (2004) 57 Vand L Rev 1571.
5. Introduction to Ross, above n 4.
6. Harris, DR et al Compensation and Support for Illness and Injury (Oxford: Oxford University Press, 1984)Google Scholar.
7. Genn, H Hard Bargaining: Out of Court Settlement in Personal Injury Actions (Oxford: Clarendon Press, 1987)Google Scholar.
8. Ibid, p 164.
9. CB Craver Effective Legal Negotiation and Settlement (LexisNexis, 7th edn, 2011) ch 2; A Boon ‘Co-operation and competition in negotiation: the handling of civil disputes and transactions’ (1994) 1 Int'l J Legal Prof 109.
10. Genn, above n 7, p 166; Harris et al, above n 6, p 95. A lower acceptance rate was later found by Goriely, T, Moorhead, R and Abrams, P More Civil Justice? The Impact of the Woolf Reforms on Pre-Action Behaviour (London: The Law Society and the Civil Justice Council, 2002) p 154 Google Scholar. However, a third of cases still settled after only one offer, almost two thirds after two and 90% after three. Similarly, little time was spent on negotiating low-value claims in Kritzer, H Let's Make a Deal: Understanding the Negotiation Process in Ordinary Litigation (Madison, WI: University of Wisconsin Press, 1991)Google Scholar.
11. R Dingwall et al ‘Firm handling: the litigation strategies of defence lawyers in personal injury cases’ (2000) 20 Legal Stud 1. Interviews were conducted with 15 personal injury lawyers in the one study, and with 25 claimant lawyers, 12 defence lawyers and 12 insurance claims managers in the other study, confined to asbestos litigation. Genn's conclusion was also questioned earlier by A Boon ‘Ethics and strategy in personal injury litigation’ (1995) 22 J Law & Soc'y 353. This study relied upon interviews with only four claimant lawyers involved in trade union work. Ten personal injury solicitors were also interviewed in a wider study of negotiation positions in Boon, above n 9.
12. M Galanter ‘Why the “haves” come out ahead’ (1975) 9 Law & Soc'y Rev 95.
13. Lord Chancellor's Department, above n 1, para 391.
14. Department for Work and Pensions Compensation Recovery Unit – Performance Statistics. The figures are analysed in R Lewis and A Morris ‘Tort law culture: image and reality’ (2012) 39 J Law & Soc'y 562 at 581 et seq and Weightmans Market Affairs Group An Analysis of the UK Personal Injury Market (2015).
15. Neck injuries including whiplash account for 87% of all road traffic claims. Transport Committee Eleventh Special Report, 2013–2014 Cost of Motor Insurance: Whiplash: Further Government Response to the Committee's Fourth Report of Session 2013–14, HC 902, 12 December 2013 (London: The Stationery Office, 2013) p 4. K Oliphant ‘“The whiplash capital of the world”: the genealogy of a compensation myth’ in E Quill and R Friel (eds) Damages and Compensation Culture (Oxford: Hart Publishing, 2016).
16. In a survey of conditional fee claimants in 2011, half of them received less than £5,000. Insight Delivery Consultancy No Win No Fee Usage in the UK; Access to Justice Action Group Comments on Reforming Civil Litigation Funding (2011) appendix 5. The average payment for non-pecuniary loss for cases settled within the claims portal in 2014 was £2,540.
17. The Access to Justice Act 1999, ss 27, 29.
18. The Legal Aid, Sentencing and Punishment of Offenders Act 2012, s 44.
19. Discussed in more detail in R Lewis ‘Compensation culture reviewed: incentives to claim and damages levels’ [2014] J Personal Injury L 209; Lord Justice Jackson, above n 1.
20. Relying upon Law Society figures, Goriely et al (above n 10, at 25) noted that prior to 2000, personal injury solicitors were becoming increasingly specialised. The Association of Personal Injury Lawyers was founded in 1990. Melville Williams ‘A.P.I.L.’ (1991) 19 Civ J Q 103.
21. D Marshall (2013) 157 (40) Sol J 9, 22 October. Marshall is a former President of the Association of Personal Injury Lawyers.
22. ‘Slater chief predicts rapid consolidation in PI market’ [2014] Law Soc Gazette, 1 May. A year later, the three leading firms controlled an estimated 22% of the market. N Rose ‘Slater & Gordon strikes £677 million deal to buy Quindell’ [2015] Legal Futures, 30 March. However, following this deal, the firm revealed in February 2016 that it had suffered catastrophic losses and that it would close some offices. Its shares plunged in value and were temporarily suspended from trading. A serious fraud investigation was started and a class action suit was brought by shareholders.
23. For detailed discussion, see R Lewis ‘Structural factors affecting the number and cost of personal injury claims in the tort system’ in Quill and Friel, above n 15.
24. Based on the premiums collected in 2012, the companies are Direct Line, Admiral, Aviva and AXA. Evidence of Thompsons solicitors to House of Commons Transport Committee Driving Premiums Down: Fraud and the Cost of Motor Insurance First Report of Session 2014–15, HC 285, 4 July 2014 (London: The Stationery Office, 2014).
25. R Lewis ‘Litigation costs and before-the-event insurance: the key to access to justice?’ (2011) 74 Mod L Rev 272; FWD Group The Market for ‘BTE’ Legal Expenses Insurance (2007).
26. Association of Personal Injury Lawyers The Impact of the Jackson Reforms on Costs and Case Management (Evidence to the Civil Justice Council) (2014); D Evans ‘Shifting strategy in the personal injury market’ [2014] J Personal Injury L 85.
27. N Engstrom ‘Sunlight and settlement mills’ (2011) 86 NYU L Rev 805 at 810; ‘Run-of-the-mill justice’ (2009) 22 Geo J Legal Ethics 1485; DA Remus and AS Zimmerman ‘The corporate settlement mill’ (2015) 101 Va L Rev 129. Standardisation of the claims process has developed over many years in the UK. For example, some of its features including the ‘dumbing down’ of staff following implementation of the Woolf reforms in 1999 were noted by Goriely et al, above n 10, ch 2.
28. By comparison, in the studies cited above (n 11), Boon relied upon less extensive interviews with no more than 14 lawyers, Dingwall et al interviewed 52 lawyers and Genn 62, in addition to relying upon other sources.
29. The findings are to be published in K Oliphant (ed) The Personal Injury Claims Process: Comparing Legal Cultures (forthcoming, 2017). The section on negotiation tactics will not reproduce the commentary and references set out here, but will contain further excerpts from the interviews conducted.
30. Genn, above n 7, p 48.
31. Ibid, pp 113, 168.
32. Although claims for work injuries in the past 4 years have increased by a third, there are fewer today than when the Pearson Commission reported in 1978. They have declined in relative importance and now account for only 11% of all claims, whereas Pearson found that they constituted 45%. Lewis, above n 19, at 212. For a broader analysis of the relative significance of work injuries, see R Lewis ‘Industrial injuries compensation: tort and social security compared’ (forthcoming).
33. Genn, above n 7, p 61; Ross, above n 4, p 94.
34. Goriely et al, above n 10, at 2.7, found around 2001 that defendants made the first offer in 85% of the cases in the study.
35. J Spencer ‘Pre-med offers result in injustices’ [2014] Law Soc Gazette, 11 March; J Hyde ‘Insurers’ pre-med offers encourage opportunism’ [2015] Law Soc Gazette, 18 May. Contrast D Fisher ‘A defendant's view of the unscrupulous activities of claimant lawyers’ [2010] J Personal Injury L 231.
36. Ministry of Justice Reducing the Number and Cost of Whiplash Claims: A Government Response to Consultation Cm 8738, October 2013 (London: The Stationery Office, 2013).
37. Boon, above n 9.
38. C Menkel-Meadow ‘Lawyer negotiations: theories and realities – what we learn from mediation’ (1993) 56 Mod L Rev 361 at 377.
