Think Law

Some of you may remember Pink Floyd’s infamous song Another brick in the wall, which sold millions of copies and, intentionally or otherwise, rubbished formal education.  A visit to the lyrics reminds me of one line in particular: “Hey, teacher, leave us kids alone.”

Against this background, I read the report of a ‘dinner’ lady at a state primary school who rescued Chloe, a 7 year old girl who had been tied up and whipped across the legs by four boys in the playground.  Although the incident was entered into the accident book, there was no mention of whipping, it was not reported to the girl’s parents and the boys went unpunished.  No surprises there!

Shortly after the incident, the dinner lady saw the girl’s mother, who was obviously in the dark, and reported the incident to her.  When the school found out, the dinner lady was immediately suspended, and subsequently dismissed for breaching “pupil confidentiality.”  Don’t laugh, it’s too serious for that.

But it gets worse.  When the incident became public knowledge, the school issued a statement:

“We can confirm that, subject to an appeal, the dinner lady will not be returning to work.”  And now we descend into farce.  “The school’s priority remains providing the best possible education to all of our pupils and ensuring their development and wellbeing.  We will continue to deliver this on a daily basis.”  Complete, arrant and unmitigated nonsense!  Thank Zeus that the dinner lady is suing the school for wrongful dismissal, and if she doesn’t win her case, I’ll eat my wig!

I remember, many years ago, representing a primary school teacher, and in the course of the trial, the Head Mistress, who obviously sucked lemons for a living, produced a copy of the rule book with the dimensions of a telephone directory.  No wonder teachers don’t have time to teach, they’re in meetings, digesting the latest set of rules, and government targets, and when to wear riot gear, instead of supervising breaks in the playground.  Where was the supervising teacher when this incident was taking place?

I asked the Head Mistress, in a spirit of enquiry, when it would be appropriate for a teacher to touch a pupil.  Never, came the curt reply.  I pressed on. What happens if a pupil is seriously injured?  Answer: the supervising teacher must call for the teacher designated as the ‘first aider’.  Can the ‘first aider’ touch the injured pupil?  No.  What happens if the pupil is bleeding to death?  We call an ambulance.

This disgraceful incident follows hard on the heels of the latest government initiative to ‘vet’ everybody who may come into contact with children.  And the result?  One of this country’s most popular authors of children’s books, who used to visit schools regularly to read stories to them, has been banned from doing so until he has been vetted.  And today I read of two mothers, both close friends and work colleagues, who have been banned from looking after each other’s toddlers, an arrangement they reached to allow both of them to return to part time work.

Somewhere down the line, there must come a point where adults can interact with children in the hope that they are not branded as closet paedophiles.  And what of the children, for whom all these ludicrous rules and regulations are intended to protect?  What price the age of innocence, when children as young as toddlers are taught to distrust adults in all shapes and sizes?

It’s a classic case of throwing out the baby with the bath water.  Far better to use the bath water to drown the idiots responsible for these ludicrous rules and regulations, and give our children a better life.

The recent distressing report of a single mother cremating herself and her disabled daughter after a hate campaign by local youths is yet another instance of a sick and deeply flawed society.  It also brings sharply into focus two recurring themes:  the feral street culture spreading like an epidemic to every corner of the country, and the inability, or the unwillingness, of the police to do anything about it.

The facts make for depressing reading.  The hate campaign was launched because they were an easy target, and couldn’t fight back.  It lasted seven years.  There were repeated reports of stone and bottle throwing, rowdy and abusive behaviour and constant verbal threats.  Not one arrest was made, despite thirty three distress calls made by the mother, thirteen in the last year of her life.  And the response from the police?  Too little, too late. Of those thirteen calls, five resulted in no one being available to attend the family home, seven led to a visit from a single officer and one from a community support volunteer, also known as a “hobby bobby.”  And still no arrests!

According to the Acting Chief Constable of Leicestershire, now retired and enjoying his index linked pension, changes have been implemented and by the end of this year, seven years on, 2000 officers would have been specially trained to spot vulnerable people.  To this ridiculously pompous statement came the reply from the Coroner: “This family was patently vulnerable – you don’t need special training to spot the obvious!”   Amen to that!

Some years ago, there was a gang of youths congregating on a bench opposite our house, led by a fourteen year old girl, now the mother of two children by two different fathers, and there they would sit, night after night, smoking, shouting and swearing, in all weathers.  When their behaviour became disruptive, I went out to confront them.  They would scatter, only to return.  So I contacted the police, and I was warned against taking ‘executive action’, as I might be arrested.  They sent a lone female “hobby bobby,” and when I spoke to her the next day, she told me she had spoken to the group about their behaviour, but had taken no action as she “didn’t want to upset them!”  It’s enough to make strong men weep, let alone vulnerable single mothers.

And so it goes on, as we lurch from one crisis to the next, and as a society, we do nothing about it.  These youths are part of a lost generation, with no parenting and no education, turned out, bored and illiterate, onto the streets, and as the saying goes: “The Devil makes work for idle hands.”

We can’t blame the ferals, but we can do something about it.  Even though the National Debt is increasing by £8000 a second, money must be found, and found quickly.  I am in favour of a compulsory year of community service for every sixteen year old.  This must include acquiring basic skills such as painting, carpentry, plumbing, glazing, to repair all those broken windows, refuse collection to tidy up their own back yard, and much more besides, but to include a strong element of social work.  A day, or better still, a week, at a council run retirement home, to witness the elderly slowly dying and being abused and neglected at the same time.  A visit to the A & E department of a hospital would not come amiss, with plenty of blood and gore, a ride in the back of a police van on the rare occasions when the police attend a public disorder, and a day behind bars in a local prison, where the ferals could be sexually and physically abused by the inmates.

If and when the ferals complete their twelve months, give them a medal and a passing out parade, and welcome them into civilised society.  Sad to relate though, no jobs available for the foreseeable future.  But behind every cloud is a silver lining, or so they say.  Now, where did I put my passport?

Following a change to planning rules which took effect on 30 September, developers can now extend their existing planning permissions to give them more time to weather the economic downturn.

Developers with planning permissions granted up until 30 September 2009 where the time limit for implementation has yet to expire may apply to extend their permissions. The move has been made to boost the industry and to save costs for developers badly hit by the recession. Many developers have put projects on hold over the last year because of difficulties faced in raising the funds.

The option of extending a planning permission, without having to re-apply through the usual lengthy and expensive process, will help development and regeneration projects to take place. Although there are still forms to be filled out, they are a much simplified version of the standard application forms and no plans or drawings will have to be provided, hence cutting costs even further.

Currently, the application fee for the extended permission will be the same as for a new permission, but this is likely to be substantially reduced later in the year.

Other changes being put in place include the possibility of applying for non-material changes to be made to an extant planning permission, and the possibility of making a minor material amendment application where there is an existing condition which lists the plans or particular aspects of the development to which a minor material amendment is proposed.

Steven Petty, Commercial Property Solicitor

Landlords of commercial premises often try to prevent occupiers enjoying the protection of the Landlord & Tenant Act by giving them a licence rather than a lease.  Unfortunately, they very often get it wrong.

First things first.  Calling a document a licence doesn’t make it a licence.  It is well-established law that if the nature of the arangement between the owner of premises and the occupier creates a lease then just calling it a ‘licence’ does not change the legal nature of the relationship.

So how do you know if the nature of the relationship creates a lease?  The critical factor which tends to give a tenant a lease rather than a licence is ‘exclusive possession’.  Exclusive possession is the right for someone to occupy premises to the exclusion of all others (including the landlord).  In other words, if the owner of premises draws up a ‘licence’ which gives the occupier the sole right to use defined premises (eg a particular lock-up unit, office or shop) then that occupier will almost certainly have a lease.

The significance of having a lease rather than a licence is that the tenant then enjoys the protection of the Landlord & Tenant Act and crucially enjoys the right to a new lease when the existing one expires.  As landlords normally grant ‘licences’ to make sure they can regain possession of the premises at the end of the term of the licence, this is a critical difference.

There are a number of ways to ensure an occupier isn’t treated as a tenant protected by the Landlord & Tenant Act and Cousins Business Law offer a range of fixed-price packages to landlord to achieve this objective at a sensible cost.

Contact Steve Petty by email or call 01926 629005 for further details.

Steve Petty, Commercial Property Solicitor

I have developed a morbid interest in surveys, for two reasons.  Firstly, for the most part, why do we need them?  What do they tell us that can be of any possible use?  And secondly, with the obvious exception of the government, which has a spending agenda entirely of its own, who is paying for these utterly useless surveys?

One in particular caught my eye.  A recent survey has found that caffeine improves memory retention, or certainly slows down the rate of memory loss.  And how do we know this?  Experiments were conducted on mice, and those with poor memories were given a diet of caffeine, and lo and behold, their memories improved significantly. Now call me a sceptical old fool if you will, but how do you spot a mouse with a poor memory in the first place?  And more to the point, how do you spot a mouse overdosing on caffeine that suddenly performs memory feats of proven worth?  It’s akin to that hoary old chestnut about goldfish having a memory retention of no more than ten seconds.  Again I ask, in a spirit of enquiry, how do they know? And where is the caffeine when they need it most?  Is this positive discrimination in favour of mice?  And if they are white mice, there may be racial issues to be addressed.  Perhaps another survey comparing white mice with their common all garden brown cousins, but it’s a political hot potato is ever there was, and like the mice, this could run and run.  Better to leave sleeping mice lie, if you’ll forgive the mixed metaphors, and when they wake up, such vivid memories to enjoy!

But on a more serious note, if that’s possible, a recent survey amongst jurors has thrown up an extraordinary range of opinions on the meaning of dishonesty.  Where dishonesty features as an ingredient in the crime alleged, the judge is obliged to direct the jury in the following terms:

“In determining whether the prosecution has proved that the defendant was acting dishonestly, you [the jury] must decide whether according to the ordinary standards of reasonable and honest people, what was done was dishonest.”

This direction implies that the ordinary standards of reasonable and honest people are represented by the “twelve honest men and true” as the old saying goes, so it follows, as night the day, that if those twelve honest men and true do not share the same ‘ordinary’ standards of honesty, what price a conviction?  And what price the rule of law?

I read this survey with utter dismay.  Imagine a three month fraud trial costing millions of pounds, and at the end of it, when the jury retire to consider their verdict, they cannot even agree on the most basic ingredient of the offence. 

I suspect it may have something to do with the current political and economic climate, which we have endured for the past year or so.  Those reasonable and honest people have been exposed to a daily fare of dishonest behaviour which, for the most part, has gone unchecked.  Politicians swapping houses, claiming non existent mortgages, and duck houses, and moat cleaning, and wisteria trimming, and so much more.  Bankers, and Hedge Fund Managers, and executive carnivores feeding off the rotting carcass of corporate Britain, and for the most part, at the expense of people who thought they knew the difference between honest and dishonest behaviour, and didn’t need to be told.

This, I fear, is the sad reality behind this depressing survey, and it is little wonder that the ordinary standards of reasonable and honest people have been fatally eroded in the face of dishonest behaviour by our lords and masters, who have subverted those standards with impunity, and who still do so, and who still claim the ‘greater good’ as their first line of defence.

How quickly the memory fades!  Perhaps a strong dose of caffeine might do the trick!

In my career I have been blessed to work with some really outstanding lawyers and I have also worked hard to be outstanding myself. So, I have ideas you can implement to keep getting better and take it to the next level. Here is a list of what outstanding lawyers do to keep getting better:

1. They are never content with their achievements and are always striving to get better.
2. They focus on what they do not know and are willing to reinvent themselves if the situation requires it.
3. They regularly do things that others do not enjoy doing.
4. They are focused on the long term.
5. They persist until they succeed.
6. They are intrinsically motivated and do not get caught up in comparing themselves to others.
7. They strive to become comfortable outside their comfort zone.
8. They are comfortable under pressure.
9. They have set and achieved hundreds of goals and have confidence they will achieve more.
10. They focus on the process that produce the end results rather than the end results themselves.
11. They know their health is essential to their success and make time to stay healthy.
12. They are focused on their priorities and do the most important things each and every day without getting distracted.
13. They genuinely enjoy their clients and their work.
14. They anticipate their clients’ and potential clients’ legal problems, create a solution and call them.
15. They work at becoming both an outstanding lawyer and trusted advisor.
16. They think optimistically and plan their non-billable time purposely.
17. They have healthy paranoia, which causes them to focus more intently on adding value for their clients.
18. They view everyone they meet as a potential client.
19. They are always playing to win.
20. They share credit and build their team as a result.
21. They look for other work the firm can do that their clients will value.
22. They help their associates succeed in their own right and are constantly rebuilding their team.
23. They are willing to fail and they rebound from disappointments or setbacks.
24. They are on the cutting edge of change, including technology changes.
25. They are always seeking new ideas and feedback from coaches and mentors.

My October column for The Practical Lawyer focuses on leadership and how the current economy may have changed law firms forever.

Is your law firm striving to become the best it can be? If so, my bet is your firm leader has integrity, articulates a purpose other than profits per partner, clearly has a vision for the firm’s future, makes sure the firm is acting consistently with its values and holds people accountable. These answers are fairly obvious. But, if they are so obvious why isn’t every leader doing what it takes for the firm to be successful?

1. Integrity

A law firm leader must be honest, ethical and credible. In their book Credibility: How Leaders Gain and Lose It, Why People Demand It, James Kouzes and Barry Posner reported the results of 1500 interviews with managers across the United States. When asked to identify the characteristics and attitudes they believed to be most important for effective leadership, the number one response was: integrity (leaders are truthful, are trustworthy, have character, have convictions).

2.  Purpose Beyond Profits Per Partner (the Why)

A law firm leader must be able to express the firm’s purpose. James Collins and Jerry Porras in Built to Last: Successful Habits of Visionary Companies Built to Last define purpose as “the set of fundamental reasons for a company’s existence beyond just making money.”

3.  Vision for the Future (the What)

A law firm leader must be able to express his or her vision for the firm in a way that creates excitement in the firm. Almost nothing energizes people more than feeling they are part of building something special. When President Kennedy expressed the vision that the United States would land a man on the moon by the end of the decade, people were energized and inspired.

4.  Culture and Core Values (the How)

A law firm leader must be able to both articulately express the firm’s culture and core values and to make sure the firm acts consistently with those core values. In Aligning the Stars, Jay Lorsch and Tom Tierney describe culture as “a system of beliefs that members of an organization share about the goals and values that are important to them and about the behavior that is appropriate to attain those goals and live those values.”

5. Accountability (the What is Expected)

A law firm leader must clearly articulate minimum standards. Actually, “minimum” is not the best word because the standards should actually be very high. Each person should know clearly what is expected of him or her and then must be held accountable with consequences for non-performance.
 

It was 1971, I was in my last year in law school when Nancy and I and two other couples sat in the second row to watch The Ike and Tina Turner Revue. First, Ike and the band came out, then the Ikettes came out and sang. Then the announcer, in a very deep voice said: “Let’s welcome the star of the show, the hardest working girl in show biz…Ladies and Gentlemen: Tina Turner.”

Tina was unbelievable. She had the entire audience clapping and singing along to “I Want to Take You Higher.” I don’t remember many of the songs in the middle of the concert, but as it was reaching the end, she sang: “Proud Mary.” When she finished the crowd was standing and asking to hear more from Tina. Here is a video clip from the 1971 concert tour with Tina Singing “Proud Mary.” 

Fast forward to 2000. Tina Turner is live at Wembley Stadium in London. Her opening song: “I Want to Take You Higher.”

Like the concert in 1971, Tina came to the end of the Wembley Stadium concert and sang “Proud Mary.” Once again the audience clamored for more.

Other than my enjoyment of Tina Turner in concert, what is the point for you? I suggest you take a lesson from Tina Turner when you are giving a presentation. Start strong and end strong. You have about 90 seconds for the audience to answer the question: “What’s in this for me?” Do not end your presentation with: “Are there any questions?” Instead as you are approaching the end, say: “Before I conclude are there any questions?” Then, conclude powerfully with a call to action. In an interview author and expert Nick Morgan said: “The last thing you do with an audience is the most important and what they will remember the best. Q&A is open-ended and not in your control. A great speech can be undermined by a hostile or stupid question at the end. So save the last three minutes for a knock-them-dead wrap up that sends the audience on its way with jaws agape.”

Clearly when Tina Turner ends a concert with “Proud Mary” she knocks-them-dead and has the audience wanting to hear more. If you open strong and close strong your audience will want to hear more, and maybe they will even want to hire you.
 

At last!  I am the harbinger of glad tidings!  Barristers can now be instructed direct by the client in search of the best advice and advocacy available.  It’s called Public Access, but as the Great Bard wrote: “A rose is a rose by any other name.”

It doesn’t matter what you call it, it means the same.  Instead of having to go to a solicitor first, the client can now come direct to a barrister.  It’s good for you, and it’s good for me.

This questionable division of labour between barristers and solicitors has its roots in the twelfth century.  You remember it well, when King Henry II was on the throne, and his very best chum was Thomas à Beckett.  In the way of things, being the king’s best chum meant you had first refusal when the top jobs were being handed out, so Thomas found himself appointed Lord Chancellor.  Not that he knew anything about the law, a tradition embraced by many of his successors in title. Not much change there. But Thomas wasn’t content with sitting back and drawing his index linked pension and the perks of Office, on the contrary, he decided to set up and preside over the Court of Chancery.  Excitement mounted to fever pitch as he travelled around the land, hearing and settling disputes, it was like an early version of the X Factor.

Problem was, he was the victim of his own success, with the Great Unwashed hammering at the doors of the Court and demanding instant justice.  To make matters worse, as in any legal dispute, there were winners and losers, and the losers were less than gracious when judgment was entered against them.  In a trice they were in his Lordship’s face, screaming abuse, with time honoured remarks such as: “What is your f***ing problem!?!” and “Do you want some!?!”

So to impose some semblance of order, Thomas had a rail, or bar, erected between him and these vocal protagonists, and if they wanted to address him, they had to do so behind the bar.

The success of the Court brought forth those who claimed a smattering of legal knowledge, and for a fee, would plead their clients’ cases.  In doing so, they were “called to the bar” to address the court, and they became known as barristers.

Work increased to the point where these barristers were struggling to meet the demands of their many clients, so touts sprang up to solicit business, and for a commission, would introduce suitable paying clients to barristers and get them to the front of the queue.  It suited both barristers and touts as well as their respective clients, and the convention grew up that barristers would thereafter use the services of these touts, or solicitors, as go-betweens to bring them work.

How the worm has turned!  Until the recent advent of direct access, solicitors used this time honoured convention to their best advantage, and clutching their Higher Courts Advocacy Certificates, began offering themselves to clients in all aspects of the law, including those areas which had traditionally been the sole preserve of barristers.

But a new dawn is upon us, and with a few exceptions, barristers can now offer the client the same ‘cradle to grave’ service without the need for a solicitor.  Hallelujah!  The client wins all ways.  He gets the best advocate for the job, and he doesn’t have to pay an ‘introduction’ fee to a solicitor.

In the best traditions of the Bar Council, the barristers’ governing body, it’s still a case of ‘one step forward, and two steps back’, but we’re getting there.  So if you’re in need of sound legal advice, and above all, the services of an experienced advocate, help is but a phone call away.  A new dawn indeed!

Over the weekend I read a sports psychology book by Gary Mack titled: Mind Gym: An Athlete’s Guide to Inner Excellence. I found it could have been a lawyer’s guide to inner excellence because the points he made reminded me of what I see in the most outstanding lawyers I coach.

Let’s review the ten qualities of inner excellence Mack listed and you will see what I mean.

The person who is a winner within has a dream. The most outstanding lawyers I coach are pursuing a dream about their career and life. They set goals to convert their dream into actions.

Commitment. The most outstanding lawyers I coach know what they want to achieve and why they want to achieve it. Because they know the “what” and the “why” they stay committed when others give up.

Responsibility. The most outstanding lawyers I coach long ago took responsibility for their own career.

Openness to learning and growing. The most outstanding lawyers I coach need coaching the least, but get the most out of it because they put the most into it. They are always striving to learn and grow.

Optimism. I have referred to this quote in a previous blog post: “Superachievers think optimistically and plan purposely.”

Self-confidence. Mack writes: “No one can outperform his or her self-image. The most outstanding lawyers I coach believe in themselves and their abilities to attract clients and be a valuable resource for those clients.

Emotional control. The most outstanding lawyers I coach do not lose their temper; do not get down on themselves or the people who work for them.

The adversity quotient. I posted a blog about this attribute after Padraig Harrington struggled on the 8th hole and lost the PGA tournament as a result. The most outstanding lawyers I coach get themselves up and try again when they run into roadblocks.

Backbone and character. The most outstanding lawyers I coach focus on their integrity. I have always appreciated this John Wooden quote: “Be more concerned with your character than your reputation, because your character is what you really are, while your reputation is merely what others think you are.”

Persistent and patient. The most outstanding lawyers I coach know that there is no such thing as overnight sensations. They work tirelessly building their visibility and credibility and do not give up or complain when they do not see immediate results from their efforts.