Investigating the Reality of Legally Aided Criminal Defence

In this book, the lawyer-client relationship is explored by means of ethnographic research. This scholarly approach represents more than a single tactic and, rather, what Denzin (2009: 185) has described as ‘a curious blending of techniques’.

Some amount of genuinely social interaction in the field with the subjects of the study, some direct observation of relevant events, some formal and a great deal of informal interviewing, some systematic counting, some collection of documents and artifacts; and open-endedness in the direction the study takes.

The sheer range of tools on offer suggests that this schema presents the ability to access information others might not. Accordingly, Flood (2005: 33) promotes its particular use in socio-legal studies as, while ‘research methods have been devised to cope with the problems of social research - social surveys, observation, inter­viewing, social experiments... only one gives us insight into the richness of social life’. Ethnography allows for genuine engagement with local legal communities and their situated knowledge, an important development considering Hillyard (2002: 647) and his rejoinder that ‘lawyers are Johnny-come-latelys to social inquiry... most are neophytes in research’. Accordingly, to date, work in the field of socio- legal studies has tended to function with a tacit emphasis on the legal portion of its moniker. In order to understand the reality of law in action, there is a need to bolster the social component of socio-legal studies. The law would only benefit from gaining the input of more sociologists - though they do not have to be assumed to be right. The nature of good sociology is that scholars raise matters for discussion - they could be wrong in their interpretation, but the important thing is that evidence is provided for a thorough and robust debate.

Within ethnography, participant observation is the most prominent and, perhaps, key component. Participant observation involves an outsider entering the natural environment of a specific group such as criminal legal aid lawyers, accom­panying individuals within as they go about their business - without ever attempt­ing to become actively involved in casework. In this case, the researcher effectively shadows the lawyer. By spending an extended time period in the company of the community in this way, the researcher gradually gains acceptance and will be provided ever-greater levels of access. This is an ongoing and constantly evolving process. Once fully embedded, the academic is able to witness the reality ofwhat the actors do first hand - a benefit Becker and Greer (1957: 28) duly commend as:

The most complete form of the sociological datum, after all, is the form in which the participant observer gathers it: an observation of some social event, the events which precede and follow it, and explanations of its meaning by participants and spectators, before, during, and after its occurrence. Such a datum gives us more information about the event under study than data gathered by any other sociological method. Participant observation can thus provide us with a yardstick against which to measure the complete­ness of data gathered in other ways, a model which can serve to let us know what orders of information escape us when we use other methods.

Despite being a sociologist, then, I got to glimpse the world that the lawyer sees, providing me with an experience as close as possible to that of an insider without actually gaining a legal qualification myself.

These are, though, problems of the stand-alone interview. Of course, interviews would be extremely limited in and of themselves and research seeking to explore the lawyer-client relationship solely through this method would be open to criticism. On the other hand, conducting interviews alongside and, in particular, after partici­pant observation, as in this study, offers the opportunity to neutralise these con­cerns. In this situation, the researcher is more attuned to the participants in the study, knowing what questions to ask and how to frame them to get meaningful responses. Such interviews enabled the understandings I developed through par­ticipant observation to be tested against the claims of lawyers who had experienced the same events, highlighting possible alternative comprehensions. The interviews provided a means to appreciate the ways in which lawyers responded to their activ­ity and explore issues that rarely came up in the participant observation. Most sig­nificantly, the timing of the interviews reduced the likelihood of interviewees seeking to pull the wool over my eyes, as they were fully aware that I had seen the reality of their practice.

When combined, participant observation and formal interviews allow for a finely grained investigation into a social space such as that occupied by lawyers and their clients within the criminal justice system. It is such an approach that holds the most potential to actually understand the reality of the situation. Recognising this value, it seems apt to consider past research that has taken such an approach.

STANDING ACCUSED AND THE REALITY OF LAW

Despite the merits of applying ethnography to the lawyer-client relationship, there has been a relative dearth of such research in the criminal justice system. This absence has been lamented by Abel (1988: 1), bemoaning the sparse banality of a literature in which ‘we know little more about what lawyers do than how they allo­cate their time among different subject matters'. To redress this problematic situa­tion, he issued a plea for ethnography to probe the daily activities of lawyers. Like buses, having waited an age for one such study, two came at once, as a pair of con­temporaneous ethnographies emerged. These important, groundbreaking works were StandingAccusedby McConville et al (1994) and The Reality ofLawby Travers (1997b). Both studies tasked themselves with filling the gap in existing knowledge by capturing the practical content of what criminal legal aid lawyers actually did. As a result of their deploying the ethnographic method, these studies moved beyond the existing literature. Much previous research had relied on courtroom observa­tion (Carlen, 1976; McBarnet, 1981), interviews (Thomas and Mungham, 1983; Heumann, 1978), document collection (Fennell, 1980; Flood, 1994) or conversa­tion analysis (Maynard, 1990; Bogoch and Danet, 1984) - all using techniques with built-in limitations. In contrast, the research of both McConville et al (1994) and Travers (1997b) gained deeper access, and was able to collect data that would prove far more illuminating than other single methods would allow. To date, these remain key studies in this field meaning that any new research, such as my own, must acknowledge their status.

The situation is sadder still when it is noted that, for all the value of these studies, they also pose serious problems with regard to understanding the lawyer-client relationship. They produced two very different findings, presenting oppositional images of the lawyer-client-relationship. On the one hand, McConville et al (1994) have published a scathing judgement on the state of legally aided criminal defence. Law firms are generally neither committed to clients nor organised in a manner conducive to serving them. Lawyers are shown to hold low opinions of their clients and believe them undeserving of good treatment. The picture emerges of a deficient profession offering inadequate representation. In contrast, Travers (1997b) pres­ents a quite dissimilar situation, in which highly knowledgeable and competent lawyers dedicate themselves to their clients. This is a glowing account, suggesting deeply satisfied clients receiving a high standard of care. It concludes that research­ers need to give lawyers more credit and respect. Relying on these studies alone, it would be hard to know what to think - as the foremost accounts of the lawyer­client relationship, their divergence provides as much confusion as it does illumination.

It so happened that McConville et al's (1994) work was highly influential and become something of the received view of this branch of the legal profession in socio-legal circles. Meanwhile, Travers' (1997b) did not find a particularly wide audience. However, following publication, Travers (1997a) chose to attack McConville et al's (1994) findings and a heated debate (in academic terms, at least) played out in a prominent legal journal. He takes issue with the methodological approach of their research.

For Travers (1997a: 370), McConville et al (1994) have produced research that simply reflects their own understanding and values, meaning that it has not suc­cessfully conveyed the lawyers' point of view:

This results from the methodological basis of these studies which seek to make a general case by presenting decontextualized examples of practices they disagree with, rather than attempting to explicate or address how... defence lawyers understand the particular people and situations they encounter in the course of their day-to-day activities.

However, the authors of McConville et al (1994), reconstituted as Bridges et al (1997: 379), counter Travers' (1997a) criticism, and dismiss his own methodologi­cal stance, for the manner in which it carries:

The risk of an extreme relativism and individualization of findings, in which the researcher is left with no source of evaluation or criticism other than that derived from the ‘actor's point of view' and value systems. Such research can easily end up accepting at face values practitioners' own rationalizations for their (mal)practices.

These authors explain that they do not believe that the type of research Travers (1997a) advocates is able to produce worthwhile socio-legal scholarship (Bridges et al, 1997: 380-81). Indeed, for Bridges et al (1997: 379), research should influence policy and enact social change that, they insist, can only be achieved by taking a more critical slant by means of a ‘strategy that seeks to challenge the particular research subject's “taken-for-granted moral assumptions” '.

Both sides display strongly held ideological positions. This means that those designing research that follows in their footsteps need to be aware of the method­ological differences. As such, I offer this research following a full consideration of their differences, which I believe can be best understood to represent the variance between the structuralism of McConville et al (1994) and the interpretivism of Travers (1997b).

STRUCTURALISM AND INTERPRETIVISM

Both structuralism and interpretivism are labels, and represent numerous diver­gent schools of thought, from Marxism and functionalism on the one hand, to post-structuralism and interactionism on the other. Any attempt to impose order on such variance will inevitably involve some level of caricature. However, there are threads which unite approaches on either side and, as such, several schema have become commonplace (see Archer, 1982). These have conceptualised the divide in various fashions, most prominently as the distinction between ‘structure' and ‘action' or the discrepancy of ‘macro' and ‘micro' sociology (Mouzelis, 1995: 22-23). There follows two particular amalgamations of structuralism and interpre- tivism offered in order to aid understanding of the differences between McConville et al (1994) and Travers (1997b) and the theoretical ground occupied by the present research.

In this dispute, the structuralist outlook is premised upon the development of largely politically motivated, theoretical frameworks that allow the attainment of privileged understanding (Glucksmann, 1974: 1-14). This approach can be best understood to represent a particular epistemological position called the ‘corre­spondence theory of truth' (Travers, 1997a: 366). Under this, the reality being observed exists independently of the observer and, as such, a researcher is able to capture and disseminate it accordingly. This is the dominant, mainstream approach in socio-legal studies. It can be found in work influenced - in however roundabout a way - by two of the three most commonly cited ‘founding fathers' of sociology, Marx and/or Durkheim; scholarship that seeks to uncover the rules governing soci­ety (Turner, 1977: 1-2). The academic is able to use their skills to uncover some manner of objective truth.

Structuralist approaches address society as a whole, over and above the individu­als within it. As such, the constitutive elements of a system are little considered in isolation from each other or from the totality of that system. The overall objective is to reveal hidden laws or structures that operate beneath the surface and which explain the functioning of the totality. In this understanding, perhaps it can be best associated with Marxian theory. The fundamental aspect of this is the quest to uncover ‘false consciousness'; a concept developed by Lukacs (1971: 46-55) and the Frankfurt School (Marcuse, 1964: 8-13). This requires analysis in order to discover the ‘real motives' that underpin the functioning of social institutions and the actors within them, but which supposedly remain unknown to the ‘layperson' (Torrance, 1995: 3-11). This tasks socio-legal studies with the objective of usurping practical and assumed everyday knowledge, and so imparting enlightenment from the privi­leged location the academic occupies.

In contrast, the interpretivist stance is ‘post-foundational', an approach which abandons the notion that there is a position from which to make objective findings (Crook, 1991: 192-219). By this outlook, structuralist attempts to do just that are dismissed for providing an ‘ironic' account of society, competing with the knowl­edge of actors themselves (Anderson and Sharrock, 1983: 565-69). The researcher cannot make definitive judgements on what they see in society, pertaining to an alternate epistemological position known as the ‘congruence theory of truth' (Travers, 1997a: 366). This perspective is less common within socio-legal studies, so can be considered epistemologically radical. It is a position most often taken up by academics following the other founding father of sociology, Weber - and subse­quently built on by figures such as Blumer, Garfinkel and Goffman (Turner, 1977: 4-7). By this perspective, society represents the shared understanding of a collec­tion of individuals, and this renders it impossible to study the myriad meanings held therein with the precision of the hard sciences.

Interpretive approaches are premised upon the principle that social actors, themselves, need be treated with respect by seeking to uncover how they conceive their situation. Truth is, then, a product of the way the observer describes it and, under this more subjective comprehension, there will only ever be multiple reali­ties. The task of the social scientist is simply to study how these are formed and reproduced in everyday situations. From this perspective, socio-legal studies should investigate social action through the meaning it holds for individuals, rendering its purpose as seeking to understand social reality in its ‘concrete individuality' (Weber, 1949: 80-81). As such, social scientific understanding cannot take the form of generality and should, instead, set its goals as comprehending but limited segments of the infinite reality (Weber, 1949: 50-112).

The difference between these two approaches has been said to ‘stalk through the history of sociological theory' (Archer, 1982: 455). Indeed, Archer (1982: 455) believes that ‘theoretical developments, have tilted either towards structure or towards action, a slippage which has gathered momentum over time'. Accordingly, it is possible to identify socio-legal research that pertains to one side or the other. For example, McBarnet (1981: 1) criticises interactionists for their focus on what lawyers do and, instead, centres her analysis in Conviction on understanding how the state ruled through law. This is premised upon the Marxian notion that law benefits dominant groups and a desire to uncover the manner in which ideology works to keep the masses subservient. She seeks to impose her theoretical perspec­tive on those she researched, thus to translate what she saw. Numerous other socio- legal researches can be identified with similar bents (see McConville et al, 1991;

Baldwin and McConville, 1977). An oppositional example can be found in Cicourel (1995) and his work The Social Organization of Juvenile Justice. Here he seeks to understand how juvenile offenders are categorised as problems, rather than taking them to be problems a priori. He presents verbatim accounts and reports of courts and police, with the background expectations that influenced them sketched in. In this manner, he attempts to draw the knowledge from those he researched and simply convey it. Again, other socio-legal literature can be found adopting compa­rable approaches, though they are not as widespread as those of the former variety (see Sudnow, 1965; Lynch, 1982). There is, then, a range of studies that can be rec­ognised to have represented one side or the other in this structuralist-interpretivist divide.

It would have been straightforward to conduct my research under the influence of one of these positions; this was an area in which there are obvious structural influences - government, legal aid and inbuilt power relations - but it is also a com­munity largely closed off to outsiders and imbued with specialist insider knowl­edge, making sense only to the lawyers themselves. A concentration on either aspect could have been justified and produced a satisfactory piece of work. However, I did not consider such an exclusionary approach conducive to making the most of the opportunity presented and sought to progress beyond the dualism.

INTEGRATED METHODOLOGY

While both structuralism and interpretivism have their strengths, in isolation there is the danger that each might lead to the neglect of significant areas of knowledge. In the structuralist approach, the actors' agency and self-understanding are down­played because the author wants to give equal, if not greater, attention to the bigger picture. Under interpretivism, the opposite is true; those broader issues can be ignored in attempts to address the particular individuals involved. This variation in focus means that different studies may identify disparate aspects of the field they address. To proceed similarly would have meant acting as though the debate between the authors of the previous studies had never occurred, and to therefore purposively restrict the level of understanding that could be obtained in my own research. This highlighted the need to consider both methodological positions.

Structuration theory represents the attempt by Giddens (1986) to synthesise the two sides of the methodological partition, presenting a process in which social structure is actively made and remade. By this, groups only have social structure to the extent that individuals act in regular and fairly predictable ways, while action is only possible because each individual has a certain amount of socially structured knowledge. The duality of structuration theory means that all social action pre­sumes the existence of social structure and vice versa. The contrasting foci of the structuralist and interpretivist lens do not exist independently of one another. In the sociological discipline he sought to promote, work would be conducted that was open to each sphere of knowledge as a fundamental organisational concern.

This research, then, was premised upon the notion that both McConville et al (1994) and Travers (1997b) offer alternative contributions to understanding the lawyer-client relationship. While the former allows generalisations to be made, the latter provides thick description of particular circumstances. Each piece presents what the other lacks. A richer account could have been given in McConville et al (1994) had they secured greater insights from below. There was a selectivity in what they showed which seemed to work against the lawyers in their study. As a result, there was little attempt to offer any defence on the part of the lawyers; they had no right to reply. This all adds up to McConville et al (1994) effectively talking over lawyers, thus reducing their voice and forcing the reader to take the authors' word for what this situation signified. The reader was expected to trust the authors to tell them what the lawyers were doing - and, in particular, what they were doing wrong. This situation is reversed in Travers (1997b) and his work is restricted by treating lawyers' perspectives unquestioningly. The reader was left to trust the lawyers as he, apparently, acted as something of an impartial intermediary. It is often unclear how far his own sympathies extend and the reader is left confused as to where his voice begins and the lawyers' end. Thereafter, the wider applicability of his results is ambiguous as the work only deals in the here and now that lawyers found them­selves in. Most pertinently, he always put a positive shine on the few examples of legal practice that he choose to display - refusing to countenance alternative, nega­tive readings, which were rejected on principle of belonging to another method­ological position. This makes his account little different from that which he so despaired of in McConville et al (1994). While McConville et al (1994) at least proceed with their values open and acknowledged, Travers (1997b) fails to note his own epistemological, or professional, biases.

There are, then, areas where McConville et al (1994) and Travers (1997b) each offer a great deal but others in which their methodological standpoints hold them back. In order to provide a rounded picture of this social world, they really need to be read together. However, this is patently not a viable situation, and it has already been noted that one of their books has been far greater consumed than the other. Against this background, I set about designing my research with a view to resolving this problem. To do this, I sought to explore the lawyer-client relation­ship paying heed to both structuralist and interpretivist concerns. This work fol­lowed Hekman (1983: 193) and her plea for socio-legal research to ‘bridge the gap' between structuralism and interpretivism. It is in this spirit that Lacey (1994: 34) declares:

We need to avoid the twin extremes of being drowned in the quagmire of chaotic (if fascinating) detail and of being committed to a rigid theoretical model which blinds us to whole tracts of significant social practice. We can do no better than to embrace a self­consciously eclectic approach which entails moving back and forth between general con­ceptions and hypotheses, on the one hand, and the specificity of social practices, on the other.

This suggests the need to develop an integrated approach, akin to that which Henry (1983: 32-69) offers in Private Justice. When planning his research, he had pos­sessed an avowedly structuralist bent, and he duly set about examining the external influence exerted by official regulations in the workplace. However, while engaged in fieldwork, he felt compelled to reassess his position. To his surprise, he had been confronted with particular, informal, means of order; these were specific to the local circumstances. He saw that his research could only continue if he recognised this; indeed, Henry's (1983) work can be seen as an attempt to persuade himself of the need for such transition (Nelken, 1986: 331). This resulted in his importing interpretivist theory to understand the meaning practices held for those he encoun­tered. His work makes use of both methodological positions, arguing for ‘a genuine pluralism' (Henry, 1983: 30).

Learning the lesson early, this research project was explicitly set up to recognise structuralism and interpretivism from the start. The sample was designed to allow for this. From the outset, I was aware that a year was deemed a substantive period of ethnography, one from which useful and authentic data could be drawn. This left the issue of how best to divide that time among firms. One approach was offered by McConville et al (1994: 13-16) who undertook research totalling some 198 weeks, conducted by several individuals and at an array of firms. The amount spent at individual firms ranged from a few weeks to several months. In contrast, Travers (1997a: 371) focused exclusively on a single firm, which he stayed with for a period of four months. It is likely that their varying methodological positions influenced their research methods, thus driving their research design. In these circumstances, McConville et al (1994) seem to have sought a large sample that allowed them to generalise, look at different types of firm and produce enough data to justify cri­tique. On the other hand, Travers (1997b) considered it justifiable to study one firm and present a lengthy, nuanced, appreciative account of it. In setting themselves up in these ways, each project closed itself off from the type of insight sought by the other. There would likely have been less data collected for each firm in McConville et al (1994) which, alongside the space they had to report, rendered them unable to produce a thick description. Meanwhile, Travers (1997b) would not have consid­ered it necessary to move beyond one firm, so did not allow for the opportunity to generalise.

I attempted to find some middle ground between the two, and sought several months at a small number of firms - spending the same the amount of time that Travers (1997b) spent at one firm at each one of three different firms. This allowed me to become immersed in each firm, see significant progression in cases and pro­vided the chances of generalising to some level on the routine work undertaken and the results this produced. It also enabled comparisons and contrasts to be drawn through a process of data triangulation (Denzin, 2009). Accordingly, three months of participant observation was taken across three firms, followed by a month of formal interviews at each.

This approach enables the book to offer both the local and specific knowledge lawyers themselves would recognise and a more general critique that engages in wider debates. This offers a novel approach to the field that does not appear to have been considered in the studies to which this book makes reference. With research techniques established, it is time to move on to the way in which they are applied and, in particular, the firms that were studied.

THE FIRMS IN THIS RESEARCH

These firms were chosen through the snowball method of sampling. This is a respondent-driven means of selecting appropriate candidates; a search that gains momentum as the researcher ingratiates himself within the social network and, essentially, gets to know people. To these ends, the firms are all drawn from the same local legal jurisdiction: a large city in England.

As to the selection of the firms, these were premised upon a conceptual apparatus closely tied to meeting the objectives of this research, designed to draw out the best and worst of legal practice. I used a heuristic device whereby firms were classified as particular types, premised upon the extreme approaches to practice that they were supposed to present. As such the research is founded upon a hypothesised distinc­tion between ‘Radical’ firms - a dying breed of lawyers who devote themselves to their clients - and ‘Sausage Factory’ firms - an emergent trend that put themselves, and their profitability, before their clients. I attached myself to firms that were adjudged as belonging to either side of this divide in the hope of capturing the full public service potential of the profession: the Radical; and its antithesis: the Sausage Factory. Accordingly, the three main firms in this research - and several others encountered along the way - come from one side or the other and are attributed illustrative names to aid those you reading the accounts to identify that to which they belong: Radford Hope and Radcliffe and Musk on the one hand; Swining MacSage on the other.¹ Although these firms were real, it should be recognised that their types constitute academic constructions and, as such, need to be properly defined.

The Radical firm follows similar scholarly constructions, designed to capture client-centred practice. The term radical itself is used by Travers (1997b). A similar conception is posited by Sarat and Schiengold (1998) under the notion of the cause lawyer, while Thomson (1992) labels it critical. This is closely allied to McConville et al (1994: 20) with their political model, ‘a positive rejection of many of the prin­ciples underpinning the other kinds of firm... anything associated with the busi­ness ethic may be inimical to a client-centred practice’. Emergent across the authors’ various definitions is a common series of features, encompassing a set of values as much as an approach to business. Premised upon private practice and being legally aided, these firms contain a high ratio of solicitors to clerks, establish links to reform groups and develop an association with the poor and disadvantaged. They eschew

¹ The names of firms, lawyers, clients and anyone else that I encountered in this research are all anonymised to protect their privacy.

the profit-orientated mindset of those just in it for the money and are, rather, more romantic and naive in their organisation. These firms claim to care about their clients, as human beings in need of help and support.

These lawyers can be considered as creating a discourse of empowerment for their clients. As such, the Radical firm represents the practice of active defence: epitomised by the proactive approach outlined by Ede and Edwards (2008), on criminal litigation generally, and Cape (2006b) on police station work specifically. They profess an intention to provide quality service to those they represent, an ideology that overrides any notion of seeking to increase profits by maximising the volume of cases handled. This is a firm that will fight a client's case to the utmost, vigorously opposing police and prosecution. They allow due process values to be operationalised as they reveal and exploit the potential of the adversarial system. In short, they provide a combative defence that upholds the rights of the accused. However, the Radical firm might be increasingly superseded by the Sausage Factory firm.

The Sausage Factory firm can be seen as a somewhat oppositional entity to the Radical firm. It is roughly equivalent to McConville et al's (1994: 19) managerial firm, which rejects the ‘altruistic professionalism' of the radical approach as some­what amateurish and antithetical with regard to their, more pressing, business imperatives. So it is that, in the existing literature, these profit-centred firms are generally posited through contrast with client-centred firms of the Radical ilk. They are rarely categorised in and of themselves. However, parallels can be found in Sommerlad's (1999: 315) account of ‘the factory model of practice' and Goriely's (1996: 49) ‘sausage machines' - firms which churned out a mass of clients. While it is little used by academics, the notion of the legal aid factory has been coined by lawyers themselves (Lewis, 2003; Mason, 2006; O'Hagan, 2008), as visible from the research carried out by Sommerlad (2001: 345, 350, 357; 2003: 214). The key notion typifying this firm is a focus on efficiency. However, the term Sausage Factory should not be seen as necessarily representing any and every efficient firm. It is a mistake to assume that firms cannot combine being run well (in the interests of clients) with being run properly (efficiently). Moreover, this typology does not deny that a by-product of an efficiently run firm might be a satisfied client, who received better quality representation than at a more ramshackle Radical firm. Rather, it concerns a matter of the ideology underpinning the Sausage Factory - they are defined by the motive of increasing efficiency to ensure profitability, over and above a sense of duty to clients. This echoes Black (1988) and his fear that, ‘developments in legal aid and criminal work have forced practitioners to consider cost effectiveness as a priority over services to the client'.

As a result, the Sausage Factory is associated with the notion of passive defence. Within the food industry, sausage factories are presumed to reduce their diverse raw materials into uniform, easy to manage, and essentially cheap, products, thus ren­dering them suitable for standard packing, storage and display in the marketplace. Within a Sausage Factory firm, defendants become similarly homogenised. The firms favour high turnover and swift throughput of clients, with little individual contact, much discontinuous representation and a large proportion of the work undertaken by unqualified clerks. The contention is that clients are reduced to offal, the bits that nobody really wants - at least not in non-standard, awkward shapes and sizes. They assume the status of a product. In this manner, the Sausage Factory reflects a wider trend in the criminal justice system, pressuring defendants to admit offences and pass through as quickly as possible. The focus on brevity has been nicely encapsulated in Rhode's (2004: 12) phrase, ‘meet 'em, great 'em and plead 'em'. As such, McConville and Baldwin (1981: 211-22) note the ‘pressures placed upon defendants and lawyers', which, far from being accidental, represent the widespread encroachment of a ‘denial or emasculation of rights'. In these circumstances, Cape (2004a: 415-16) identifies a ‘growing antipathy toward adversarial principles and the adversarial role of lawyers'.

The rights of the accused are minimised; they become a background consider­ation in a criminal process that places more emphasis on the rights of the accuser. The role of the Sausage Factory lawyer becomes that of transmitting crime control messages to the client - centrally, the advantages of pleading guilty - in order that victims are spared the ordeal of a contested trial and the efficient repression of crime can be secured. They operate within a criminal process said to involve the ‘mass production of guilty pleas' (Sanders et al, 2010: 438-98).

These two types of firm are not offered to map reality precisely; rather, they provide a useful conceptual lens through which to view access to justice in the func­tioning of the lawyer-client relationship. This heuristic device allows the contrast between a public service ideal that works for the client and a business-minded approach that sees lawyers work largely for the money they can earn. In this way, the research has a similar impetus to Banton (1964: vii) and his ethnography of British policing in the 1960s seeking to champion research into institutions ‘working well'. The difference, though, is that this study was undertaken aware that the Radical firm might be in decline, wanting to learn the lessons while there might be still be a chance to do so.

In applying these theoretical criteria to the real world of criminal defence, there was an obvious first port of call: Radford Hope, whom I had already reasoned a Radical firm following a month-long pilot study conducted one year prior to this fieldwork. This was a firm that characterised itself as Radical, as evident from their mission statement and claims to practice active defence. The senior partner, James, was heavily involved in political agitation for the rights of those suspected and accused of crime and he intended that the firm be led by such righteous principles. A key aspect of this could be found in their engaging in various pro bono and cam­paigning groups and it was from my membership of one such organisation, work­ing on miscarriages of justice, that I became acquainted with them. In particular, Gordon, a solicitor on that project, convinced me of their suitability and set up my placement in the firm.

Once embedded in this Radical firm, the remaining firms were selected by mak­ing use of the new contacts I accrued. I combined my own tentative perceptions, from regularly attending the courts, with overheard gossip and, crucially, advice from the lawyers themselves. From those in Radford Hope, I was presented with two names for Radical firms, Raddled and Left and Radcliffe and Musk. The former proved elusive so it was the latter on which I focused. Their senior partner, Leo, was every bit as passionate about access to justice as James at Radford Hope. Also seeking to manage the firm in his own image, he assured me that they saw themselves as Radical, seeking to give their all for clients over and above any thought of profits. In addition, I was aware of their reputation for engaging in pro bono work within their local area and helping to organise various community schemes. In this regard, they were a prominent presence. These features made them seem a suitable choice as my second Radical firm.

With regard to the Sausage Factory, it was quite difficult to categorise this type of firm from the outside; essential qualities such as efficiency, profitability and stan­dardisation of clients cannot be judged without exposure to internal mechanisms. In addition, it did not seem wise to ask Swining MacSage lawyers whether they iden­tified with a term carrying such pejorative overtones from the outset. As such, any selection need be based largely on reputation. Luckily this resulted in a simple choice, as solicitors at Radford Hope and Radcliffe and Musk alike repeatedly labelled the firm Swining MacSage as a Sausage Factory. They were derided for the mechani­cal way they churned out clients. Time and again, I was told that they would provide a great point of contrast, such that:

There are such differences in terms of attitude; they just get through so many clients. I wouldn't want to work in that way, personally. Yes, I think Swining MacSage will be very different [laughs].

(Leo, senior partner, Radcliffe and Musk, IC)^[4]

Though some were wary about criticising them, restricting themselves to knowing smiles and laughter (very much, nudge-nudge, wink-wink), a Radcliffe and Musk solicitor, Shelly, referred to their having a ‘dodgy’ reputation. Another signalled their view that Swining MacSage had much that they would wish to hide:

Good luck [laughs]! I don’t reckon Tommy [police station clerk, SwiningMacSage] will want you following him around - there are things he definitely won’t want you seeing. What they get up to with their clients. It can never be proved though because they’re in four walls aren’t they?

(Maddie, clerk, Radcliffe and Musk, IC)

On the whole then, the overall process of selection can be justified as a suitably organic one; it was borne from perceptions within the social environment itself.

While the choice of firms was straightforward, gaining access was a slightly more daunting prospect, often described as being fraught with difficulties (Bryman, 2001: 296). The process is summarised by Van Maanen and Kolb (1983: 11) who caution that, ‘gaining access to most organisations is not a matter to be taken lightly but one that involves some combination of strategic planning, hard work and dumb luck'. This research proceeded with a combination of all three qualities. It was a matter of strategic planning that I would make use of my sole contact, Radford Hope, as a starting point for this research. Although almost all the lawyers I had previously spent time with had since left the firm, I was still able to contact Gordon, who had himself moved on. I asked his advice on how to approach them. Gordon recommended the solicitor, Norma, whom he believed cared deeply about access to justice, and thereon suggested how I might best pitch my proposition to pique her interest. I did as he said and duly found myself accepted back at Radford Hope. This was initially for a trial period, but gradually stretched to cover the full three months, with little question.

At Radford Hope, both hard work and luck played their parts. While the senior partner at Raddled and Left did not follow up the initial interest he showed, Denise, a solicitor from Radcliffe and Musk, accepted me on the basis of a phone call and an email. She was impressed by having seen me regularly at the courts with Windom, a Radford Hope solicitor, with whom she was friendly. Initially this placement was for six weeks, Denise suggesting that she could get me in to Raddled and Left for the other six weeks. In practice, this transfer did not materialise. Instead, at court one day the senior partner, Leo, followed my hinting by suggesting I serve the full three months at Radcliffe and Musk. SwiningMacSageseemed to be just as simple, at first. The senior partner, Ed, agreed to provide access five months in advance on the basis of a phone call, a letter outlining my position and a personal reference from Windom, who had previously been at the firm. However, when I tried to reinvigo­rate contact shortly before attending, I found Ed difficult to pin down. On hearing of my problems, both Leo and Denise took it upon themselves to harangue Ed at court, taking him aside from a hearing he was engaged in to tell him he should accept me. He did and - after sending an email of my intentions, to be distributed among the staff - I was promptly granted the full three months.

The second phase of the research proved an even smoother process of gaining access, with all three firms readily agreeing to my returning for formal interviews later in the year. In addition, I augmented the results of the main firms by conduct­ing a handful of interviews with lawyers from other local firms. These were lawyers with close ties to my main sample and who had been recommended or volunteered themselves after I had spent significant periods of time with them over the course of the research.

The period covered by the research is presented in table 1 opposite.

From the previous timeline, it should be clear that the fieldwork was a lengthy, ongoing process, meaning that careful consideration needs to be given to the role adopted by the researcher. In the research literature on the ethnographic method, it has been suggested that taking on the position of the ‘acceptable incompetent' may prove most conducive to gaining acceptance (Lofland and Lofland, 1995: 56-57). This status ensures that the researcher gives off an impression of naivety and humility (Fielding, 2001: 149). Following this line, they can take on the mantle of new recruit. A logical extension from becoming this new recruit seems to be that it minimises the perception of being the outsider, and all related conceptions such as interloper or intruder. Rather, it suggests that while new, this individual is one of us, at least in the making, and as such it can lead to a greater deal of acceptance. This will be especially the case the longer that individual spends time in a setting so that they might even progress from being the new recruit to a junior member of that society. This is the position I took up on conducting this research, and it was in this manner that I was quickly accepted.

Table 1

At each firm, I speedily fell into routine and was allowed the freedom to drift in and out of the offices and accompany almost any lawyer on a particular day. It is unlikely that an overt observer could conduct research without exerting any impact on those they studied and it is worth noting that I was very occasionally steered away from certain situations; however, it was extremely rare that I was denied access in this manner. I was soon treated as a confidant at each firm, accepted into the inner circle and told all manner of confidences. I became regarded as part of each firm, being taken to lunch, going to drinks and attending staff parties. I would even suggest that friendships developed, with contact remaining to this day (though, portentously I fear that things may be a little different by the time they finish reading the book).

As such, my research position swiftly and organically developed into that of an ‘insider’, a situation Strauss et al (1964: 27) would champion for the manner in which the fieldworker had become ‘part of the natural flow of events, without nec­essarily determining the course’. Considering this status it can be understood that I was provided with access to the full range of lawyers’ daily routines, at the offices, police stations, Magistrates’ Court and Crown Court. This encompassed all man­ner of activities, from consultations with clients to negotiations with prosecutors, police station interviews to court hearings. Perhaps most significantly, I was present before, during and after all the official areas of their engagement in the criminal justice system, exposed to the reality of the situations away from the formal process.

The extent of this access can be appreciated from table 2 below, offering ‘guesti- mate’ averages derived from my fieldwork diaries.

Table 2

Overall then, I spent a little over 1000 hours attending with 29 lawyers from the three firms in this study.

Within those firms, the range of my experiences can be captured in tables 3, 4 and 5 below which document my participant observation of the lawyers across the three main sites in which they operated.

Table 3

Considering the numbers of this research, it can thus be appreciated that the major­ity of my time was spent with lawyers in and around the Magistrates’ Court. The business they conducted in this realm provided the daily routine for most lawyers; it was the bread and butter of their practice. The lawyers’ professional lives tended to revolve around the Magistrates’ Court - it provided a central hub, not only for representing clients, but for meeting clients, working on files and engaging with fellow lawyers, prosecutors and other court staff. I judged it sensible that this site should also form my main base of activities.

Table 4

Table 5

By obtaining this direct experience of the social world, the research captured some of the meaning that the actors placed on their activities. It was able to reach behind the scenes, and onto the informal level. This point can be best comprehended with regard to the ‘dramaturgical’ metaphor, which Goffman (1990: 83-140) developed for categorising the performance of social actors: ‘front-stage’, ‘back-stage’ and ‘off-stage’. This research has been able to cover that range of settings. The differ­ences they present, in both formality and audience, enable a more truthful appre­ciation of the performance of criminal defence lawyers. As such, the research was able to go considerably beyond the official stance. This will be seen in the coming chapters, as the richness of the data reveals itself.

THE ORGANISATION OF THIS BOOK

In collecting the data, three dominant themes emerged and the results of this study are subsequently organised to reflect these, presenting substantive chapters on the attitudes lawyers held towards their clients, the manner in which lawyers behaved with their clients and the outcomes lawyers obtained for their clients.

Each of these chapters is thereon divided into three sections. In the first two sec­tions, representative data from the research is presented in order to convey the lawyer-client relationship as I encountered it. The interviews are offered first and, then, the participant observation. Owing to the nature of collecting these different types of information, the former is more readily quantifiable than the latter. This means that while statistics can be offered to contextualise the interview quotes, the dialogues drawn from the participant observation are merely offered as the domi­nant, mainstream view - expressing characteristics regularly displayed by lawyers in each firm. These accounts are offered relatively free of critical engagement though they are selectively arranged to facilitate understanding of the actors and their experiences. These two sections set out the majority positions. As such, the approach can be characterised as thematic analysis: a method for identifying, ana­lysing and reporting patterns across a data set that, thereon, minimally organises this information in rich detail. Accordingly, the first two sections of each chapter meet the valuable guidelines for conducting good thematic analysis set out by Braun and Clarke (2006: 96) to ensure that any themes identified match the original data. In the opening sections, lawyers tell their own stories through the formal interviews, while these are followed up by my reporting of what I saw in the partici­pant observation. It is only in the third section of each chapter that I critique, and thus move beyond, this data. In these sections, the data is evaluated in the round with extensive reference to existing academic literature and previous research.

This organisational structure was developed to aid an analysis that pays heed to both the structuralist and interpretive traditions. It provides spaces in which the lawyers' voices can be heard - separate from that of the researcher. You, as the reader, have the opportunity to make your own judgements based on what you see before I influence it unduly with my own standpoint. I believe that, by taking this approach, the book can be used to reach defensible conclusions upon the data it presents - open yet authoritative.

Originally, I intended to allow the lawyers even greater freedom to speak for themselves. That perspective was inspired by recognition of Travers' (1997a) inter- pretivist concerns that studies such as that of McConville et al (1994) silence law­yers, thus acting to misrepresent their position. I was worried that lawyers had suffered a raw deal previously and were being unfairly castigated by structuralist research. I set about this research, then, aware of the (social) scientific method, keen to disprove (Popper, 2000: 66-67). By being faithful to the data, as Travers (1997a) required, I believed that it would work to contradict the prevailing understanding offered by McConville et al (1994). To these ends, I planned lengthy passages of dialogue and extensive chunks of quotation - free from comment or interpretation. However, as writing up the data played out, it soon became clear that there was little need for this and a more constrained presentation had the same effect. It did not matter how much room I gave the lawyers, this became merely rope on which they would hang themselves.

Lawyers did talk encouragingly about the lawyer-client relationship in their interviews and disseminating this provides a contrast to the negative structuralist accounts. However, the participant observation data showed the lawyers in a very poor light, in accordance with the structuralist critique. The following chapters, then, are characterised by a striking divergence between the formal interviews and the participant observation. The data in the former tallies with the healthy relation­ship depicted by Travers (1997b), and the lawyers emerge as holding a strong public service orientation - relatively Radical. My participant observation data, though, is reminiscent of that presented by McConville et al (1994) which led to them adopt­ing a condemnatory tone when discussing the strained lawyer-client relationship they saw. They came out as Sausage Factories. This negative portrayal emerged despite my research being conducted two decades later, following the various steps taken to improve the quality of legally aided criminal defence in the intervening period, measures such as introducing the duty solicitor accreditation scheme.

Overall, I feel the need to give more weight to what was seen than what was said - after all, seeing is believing. As such, even though I explicitly designed a research project informed by both interpretivist and structuralist methodologies alike, try­ing so hard to give the lawyers the benefit of the doubt, I ultimately produced a piece of work that made the structuralist account seem more plausible. It is for this reason that the data is organised in the manner in which it is: lawyers' accounts; my accounts; and critique. In each substantive chapter, I fully consider the lawyers' perspectives before moving on to dismantle them, more or less comprehensively. If, in the following chapters, then, it should seem that I am being overly critical, it is important to remember that this was expressly not my aim. It was the data that led me to this situation and not me who led the data. The critical findings of this research cannot be dismissed or downplayed as simply reflecting my own biases. This research purposively targeted firms that it was supposed would show lawyers in a good light, and this inevitably affected my pre-suppositions. Initially, if any­thing, I was inclined to put a positive spin on all I saw and heard as that was what I had wanted to believe. Over time, though, the flood of negative data made it neces­sary to take a far more sceptical approach.

The necessity of this critical stance should become clear as I begin presenting my findings in the following chapter, starting with the attitudes of lawyers.