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GAZETTE
JULY/AUGIJST
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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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