The Gazette 1984

GAZETTE

JULY/AUGIJST

19

America. There is no one central location, where Inns of Court — and the training and traditions of the English system — could take root and grow. • A more important reason, I think, is the egali- tarianism that runs through most American attitudes. A formal separation between the two branches might suggest elitism, and that just goes against the grain. • Nonetheless, there is a distinct group of lawyers in America who specialise exclusively in trial practice. There are distinct groups of lawyers who specialise exclusively in other fields also — taxation, for example, or trusts and estates, or corporate law. But the differences in expertise are not formally recognised in the way in which the bar is structured. For that reason, the separate functions of solicitor and barrister, that you are accustomed to, are not so clearly defined in American practice. • Many general practitioners in America, in smaller communities particularly, try cases, including some cases in the major trial courts, as part of a law practice which includes the full range of services furnished by solicitors in this country and the United Kingdom. • The trial lawyer in America becomes involved in a case at an earlier stage than the barrister does here. As a general rule, the trial lawyer performs all the pretrial preparation, that may be performed in this country and the United Kingdom by the solicitor. (a) The business arrangements in which trial lawyers engage in practice reflect this absence of any formal distinction between solicitors and barrister. • Trial lawyers generally practice as members of a partnership of lawyers. • They are considered specialists in their law firms, but only in the sense that lawyers who concentrate in other fields are also considered to be specialists. (b) Another significant difference in American practice is the fact that contingent fee agreements are permissible. • Lawyers representing plaintiffs in civil cases in America are permitted to enter into fee agreements, in which the fee is contingent upon the outcome of the case and typically is measured as a percentage of the plaintiffs recovery. A typical contingent fee in a personal injuries case — an automobile tort case, for example, or a products liability case, or a medical malpractice case — is one-third of the recovery. • Contingent fee cases are not limited to personal injuries cases. Any case in which the potential damages are high, and in which the plaintiff cannot afford to pay a fee unless he wins the case, is a candidate for a contingent fee arrangement. Antitrust cases — in which the defendants are charged with conspiring together to restrain business competition — or securities fraud cases — in which the defendants are alleged to have sold or purchased shares of stock on the basis of false information — are examples of the types of cases that may be brought on a contingent fee basis. • One effect of permitting contingent fee agreements

is to create a plaintiffs bar. In virtually every city in America there are trial lawyers who specialise in representing plaintiffs in personal injuries cases on a contingent fee basis. In the major metropolitan centres, there are various sub-specialties within the plaintiffs bar. There are plaintiffs lawyers, for example, who specialise in securities fraud cases, or in the so-called toxic-tort products liability cases. • The argument against contingent fees, of course, is familiar to all of you. There is a danger that a lawyer's professionalism and objectivity will be impaired, if he, has a financial interest in the outcome of his client's case. The argument on the other side is that the contingent fee system enables people who have legitimate claims — but cannot afford to hire a lawyer — to be represented by able counsel. Another concern about contingent fees is that the fee percentage may be too high. A fee representing one-third of the recovery, in a particular case, may be far in excess of what the lawyer would receive if he billed on a standard per diem or hourly basis. This may seem at first blush to be unfair to the client, who perhaps feels that he is paying his lawyer more than the lawyer is worth. From a larger perspective, however, we must acknowledge that in other cases — in which the lawyer has performed valuable service, but in which there has been no recovery — the lawyer receives no fee at all. The contingent fee can be viewed as a form of insurance, by which the risk of failure of a plaintiffs case is spread among the successful plaintiffs, who can afford to pay. Put differently, it is a cost which reflects the fact that skillful trial lawyers are available to represent clients who cannot afford to pay a fee if they lose the case. (c) Another important difference in American practice is the absence of your rule for the shifting of the costs of litigation. • Here, the rule is that "costs follow the event". Party and party costs, including attorney's fees, are awarded to the prevailing party. In America — except in certain limited cases — there is no such rule. Each side pays its own attorney's fees, regardless of the outcome of the case. (d) Now, at this point, I think that some of the major, underlying differences between trial practice in America, and trial practice here are beginning to emerge. Here, the prohibition of contingent fees is a disincentive to litigation. It is true that your cost-shifting rule may be an encouragement to litigation, in the few cases where a favourable outcome is reasonably assured. Those cases, however, are very rare. In the majority of cases, where the outcome of the case is doubtful, the cost-shifting rule is a disincentive to litigation. In America, these disincen- tives — the prohibition of contingent fees, and the cost- shifting rule — do not exist. • One might infer from these differences that litiga- tion happens more frequently in America than it does here. Whether this is true or not, I do not know. Accurate comparative data on case filings in relation to population, to my knowledge, have not been assembled. I strongly suspect that litigation happens more frequently in America than it does here, but I do not have proof.

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