In January 2024, a thought-provoking piece in Legal Futures highlighted Vulnerability and costs – the litigator’s dilemma – Legal Futures what many litigators already know but rarely say out loud: identifying and managing vulnerability in civil litigation has become both a professional necessity and a commercial dilemma.

With Practice Direction 1A and amendments to the overriding objective placing increased emphasis on ensuring parties are on “equal footing” and able to “participate fully in proceedings,” solicitors are under growing pressure to identify vulnerability early and respond appropriately.

But here’s the problem.

There is no clear definition of vulnerability. It can be temporary or permanent. It may relate to age, literacy, language barriers, mental health, cultural considerations, trauma, capacity, or situational stress.

And under the extended fixed recoverable costs regime, getting it wrong can have significant financial consequences.

So how do you protect your client – and your firm – without creating discomfort, offence, or commercial risk?

This is precisely where The Legal Lexi and our Helping Us Understand You Better questionnaire come in.

The Litigator’s Dilemma

The Legal Futures article outlines the practical challenge faced by legal representatives:

• You must identify whether a client is vulnerable.
• You must determine what reasonable and proportionate adjustments are required.
• You must record the additional work undertaken.
• You must potentially justify all of this before a judge to escape fixed costs.
• And if you fail to identify vulnerability? The consequences can be serious.

Worse still, raising questions about capacity or vulnerability can feel intrusive. Clients may be offended. They may not recognise their own vulnerabilities. They may later disclose information – such as illiteracy – that undermines earlier assumptions .

No solicitor wants to:

• Appear accusatory.
• Probe too deeply into personal matters.
• Risk complaints.
• Or shoulder unrecoverable costs.

Victoria Morrison-Hughes suggests a solution: make vulnerability screening routine – just like anti-money laundering checks .

And that is exactly the philosophy behind The Legal Lexi.

Why Routine Is the Key

When vulnerability screening becomes a standard part of onboarding, it ceases to be:-

• Personal
• Targeted
• Accusatory
• Awkward

Instead, it becomes:

• Neutral
• Professional
• Protective
• Compliant

Clients already expect to provide ID for AML checks. They understand regulatory compliance.

In time, vulnerability screening will be viewed in the same way – as a safeguard designed to ensure fair participation and appropriate support.

The Legal Lexi’s “Helping Us Understand You Better” Questionnaire

The Legal Lexi has been designed as an unobtrusive, client-friendly solution to this growing regulatory and commercial challenge.

Our Helping Us Understand You Better questionnaire, should be completed by all clients as standard and uses clear, non-judgmental language to identify potential vulnerabilities without labelling the client. Once completed it provides documented evidence that reasonable steps were taken.

Rather than asking: “Are you vulnerable?” The question is framed as: “How can we best support you?”

That subtle shift makes all the difference.

How It Protects Your Firm

Implementing The Legal Lexi questionnaire supports firms in several critical ways:

1. Regulatory Compliance

It demonstrates proactive compliance with Practice Direction 1A and the SRA Code of Conduct requirements to consider client needs and ensure understanding.

2. Risk Management

It creates an early, documented assessment trail – protecting you if vulnerability issues arise later in the matter.

3. Cost Protection

If additional adjustments are required, you have clear evidence that:

• Vulnerability was identified appropriately.
• Adjustments were reasonable and proportionate.
• Additional time was necessary.

4. Complaint Reduction

Because the process is routine and universal, clients are far less likely to feel singled out.

5. Access to Justice

Most importantly, it ensures clients are genuinely able to participate fully in proceedings – the very heart of the overriding objective .

From Dilemma to Due Diligence

Through this article Victoria highlights the tension between professional obligations and commercial realities. Solicitors are caught between:

• The risk of offending a client by raising vulnerability concerns.
• The risk of failing to identify vulnerability.
• The financial risk of additional unrecoverable work.
• The ethical obligation to ensure equal participation.

The Legal Lexi transforms that tension into structured due diligence.

By making vulnerability screening:

• Routine
• Documented
• Neutral
• Client-centred

you remove the awkwardness and replace it with professionalism.

A Smarter Way Forward

Vulnerability and capacity issues are not going away. If anything, judicial scrutiny will increase.

The question is no longer whether firms should identify vulnerability.

The question is how to do it:

The Legal Lexi provides that framework.

Because understanding your client isn’t intrusive.

It’s responsible.

And when done correctly, it protects everyone involved.

If you would like to learn more about implementing The Legal Lexi and the Helping Us Understand You Better questionnaire within your firm, visit www.thelegallexi.co.uk.

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