Friday, 10 April 2009

Trust local judgment

One of the most useful pieces of advice I was given at the start of my career was never to assume I knew more than my opponent. It was not an easy piece of advice for an arrogant young Turk to take. I always prepared thoroughly (at least for the first few years) and believed I went to court armed with an excellent knowledge of the evidence and as good a knowledge of the law as was required. How, I asked myself, could I not know more than my opponent because he couldn't possibly be as thorough or as clever as me. Of course it didn't take long for me to realise the value of the advice. That value lay in recognising that "knowledge" is not all about reading bits of paper and absorbing information, it is also concerned with understanding the possible ramifications of what you have learned and the various ways it could all be interpreted.

From time to time barristers take over cases previously in the hands of another member of the Bar, perhaps he is double-booked or the client didn't like him or whatever, cases sometimes have to be passed to others; it is known as "returning" - the original barrister must return the papers and someone else picks up the "return". I don't think I received a single return in which I agreed with every aspect of the advice given by my predecessor or every aspect of the way he had prepared documents for court. That didn't mean I was right and he was wrong or vice versa, it merely meant that he was doing the case his way and I did it my way. Not everyone gives the same advice because not everyone interprets the law in the same way; not everyone drafts documents the same way because not everyone agrees on the most effective way to present the case to the client's best interest. There is nothing special to the law in this, ask a dozen gardeners when, into what type of soil and how deep they plant seed potatoes and you can expect at least ten different answers. It's not a matter of one being right and the others being idiots, they all form different views based on their own experience and their own judgment.

Of course there were times when I would pick up a return and find a fatal flaw in the case or a killer point not yet taken. It didn't happen often, only twice that I can recall, but it is bound to happen sometimes. For all I know people taking returns from me found the same even more often. Usually the reason I would want to alter something about how the case was presented was because my particular experience (or lack thereof) persuaded me that a change of tack would be in the client's interest. Not uncommonly I would make a change after learning the identity of the judge who was to hear the case. There were some judges before whom a particular approach was a suicide note, so that had to be abandoned and something else found otherwise disaster would be likely to strike. Local knowledge was important.

You see, wisdom and judgment are not absolute qualities. The most reliable judgment generally comes from a combination of technical knowledge, experience and strong powers of analysis, but nobody knows everything, nobody has perfect judgment and nobody is on top form all the time. Nonetheless, if you want the highest chance of a job being done well you entrust decisions to people with these three qualities. And where there is a local element to the issue you would be well advised to look for local knowledge too.

A couple of weeks ago I burbled on about the inability of central government to provide services efficiently because of excess bureaucracy and political interference. It seems to me that a vital aspect of providing services, whether in the private or the public sector, is effective local management. Only local management by properly experienced people can combine the qualities needed for good decision-making and an efficient use of resources at the point of use. That does not mean that the same decisions will be made in the same circumstances everywhere in the country. Indeed, it must not mean that. Uniformity of decision-making means that decisions are not being made, it means boxes are being ticked for administrative convenience.

A particular problem caused by services being provided by government, rather than just funded by government, is the pressure for uniformity. Heart-rending stories appear from time to time about someone with a particular serious medical condition who cannot get the treatment he needs in his area or cannot get it as quickly as it could be provided if he lived elsewhere. Calls go up for new central guidelines to guarantee uniformity of treatment for all sufferers of that ailment. Ministers condemn inequality, promise a review then issue ever more detailed guidance. In a few months' time another example arises, then another a little while after that. The problem, I believe, arises because of too much central guidance not too little.

Good local management makes exceptions where it can for individual exceptional cases. This happens in individual branches of nationwide supermarkets, car hire companies, carpet shops and the rest. It happens because in the real world, where the delivery of good service is crucial to survival in a competitive marketplace, sensible local management is seen to be an asset not a cost. Not every hardluck story has a happy ending in the private sector, but the system allows greater flexibility than where day-to-day decisions are dictated from the centre rather than being entrusted to the front line. Too often the explanation for expensive treatment being denied in one area when it is available in another is that targets could not be met if money were diverted from, say, ingrown toenails to face cancer. Rather than make an exception and risk penalties for failing to meet targets, local managers pass the buck upwards.

Swathes of guidelines from the centre carry two risks. First, they rely on the judgment of too few people. An inner circle of advisors, some medical (whether or not hand-picked to be poodles for the government) and some political, give their views and a minister decides. The combined power of judgment is a tiny fraction of that available at local level, yet what they say holds sway over the whole country. This risks stifling the very skills that good local managers should be employed to utilise. Secondly, the edicts they issue can have no effect on the ground unless they are too specific to be generally useful. Waffle has no effect so they descend into micro-management without having detailed knowledge of local conditions. The reason micro-management from the centre cannot work is that it approaches problems from entirely the wrong perspective. All the best central guidelines in any field set out prohibitions not prescriptions, they define what should not be done rather than trying to second-guess every possible scenario and defining what should be done. Take professional conduct rules as an example, they are all about types of conduct which are not acceptable, provided they are complied with professional people are trusted to use their own judgment.

Whether it be in the NHS, state schools, refuse collection or any other service provided by central or local government, no one has a monopoly of the best way of doing things. Ministers in central government are, I would suggest, worst placed of anyone in the chain to say what must happen on the front line. Failure to realise that variations in practice are a strength not a weakness and that variations in practice lead to improvements through experimentation, leads to stagnation at ground level for fear of stepping out of line with the one true path. A strong government understands how little it knows and trusts people to do a better job than the minister ever could, a weak government seeks to establish strength by pretending to know things it doesn't.

1 comment:

Mark Wadsworth said...

Having once taken a case through to an appeal, the only skill appears to be knowing what sort of lies the judge is prepared to accept. In my naivety, I had assumed it was based on facts and law.

Not at all - at a prelimiary hearing, the judge told the shit I was suing how to tweak the evidence, and the actual trial judge decided in his favour on a minor point (which was open to debate anyway) which the shit hadn't even advanced as a defence.

They allowed my appeal, but the appeal judge - despite having said that I was probably right (if you turned the logic on its head, I was clearly right) then just repeated the same crap as the trial judge.

That's why I have no faith in the legal system whatsoever.

As to your wider point, completely agreed, of course.