Are Plaintiff Lawyers a Pest?

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A team of australia's most eloquent barristers wouldn't persuade Andrew Fegent that he's doing dishonorable work. A solicitor for 25 years, the spruce 49-year-old sees himself and his colleagues in his small Sydney firm as "cause fighters" who act for the little guy in David-vs.-Goliath cases. This, he explains, was his calling: growing up in a family that debated the big issues of the world at the dinner table, "I developed an ingrained sense of what's fair and what's not." He hand-picks underprivileged teenagers as support staff and spends, he says, 70 hours a week trying to win compensation for clients who have been victims of negligence. Rare is the night he retires not a little proud of his day's work.

Others have a less rosy take on plaintiff lawyers like Fegent. By encouraging litigation, critics say, they are driving up the cost of public-liability insurance and, in turn, sending small businesses to the wall, forcing the cancellation of dozens of community events and killing off the stoical attitude on which Australians once prided themselves. An "aggressive legal profession is turning the legal system into a lottery system," Federal Small Business Minister Joe Hockey said recently. Moves are afoot to strip Australians of the right to sue for unspecified damages, and institute a no-fault personal injury compensation scheme like that of New Zealand, which has been widely praised as fairer and simpler than a system based on common law. In Canberra this week, lawyers' tactics will be in the spotlight at a ministerial forum.

Australia has an abundance of plaintiff lawyers. Competition for business has pushed some of their advertising toward poor taste: "From crash to cash" was the lure used by one Brisbane firm on a recent billboard ad. Proponents argue that advertising simply prompts people who may be entitled to compensation, and are uncertain of their rights, to seek advice. But that's not how it's working, says Sydney barrister Geoffrey Watson. "My gut reaction is that it's brought strange and speculative claims out of the closet." (The New South Wales government agrees: as of April 1, it's banned personal-injury advertising on electronic media and in hospitals and nursing homes.)

Some also want a ban on firms offering their services on a "no-win, no-fee" basis, arguing that this spawns frivolous suits and puts pressure on the ethics of plaintiff lawyers, who, if they don't win or settle the case, must write off the tens of thousands of dollars they've spent preparing it. While it's a strong argument that, without this service, only the rich would have access to justice, "the fact is [no win, no fee'] is a mass marketing strategy to increase the flow of business," says Garry Brack, chief executive of Employers First. If you can't afford a good lawyer, adds Jonathan Fowler, national spokesman for the Small Business Association of Australia, "then represent yourself ... or forget the whole thing."

If they have an image problem, say plaintiff lawyers, it is undeserved. Unlike their U.S counterparts, they are not allowed to take a cut of their clients' awards; they simply bill them based on time invested-usually at an hourly rate of about $A300. Peter Gordon, the senior partner at high-profile firm Slater & Gordon, estimates his solicitors receive about 200 calls a month from people contemplating a personal-injury lawsuit; of those, the firm would act for about 4%. The "critical consideration," Gordon says, "is whether the case has merit-whether the injury is the result of negligence."

They're not agents of greed, the lawyers say, since most of their clients act not out of the desire for a quick buck, but from a sense of outrage that government or business has neglected its duty of care. In 1999, "Barry," a Sydney clerk, sued a local council and rugby club after his 11-year-old son tripped on a sprinkler and broke his collarbone while warming up for a rugby championship. "No win, no fee' allowed us to have our day in court," says Barry, who was awarded $A12,000 (which is in trust until his son turns 18). "Our lawyer was a decent bloke who had the same motivation as me: to make sure the ground was made safer for kids."

On the other hand, 73-year-old pensioner Frances Peters learned the hard way that "no win, no fee" doesn't always mean no risk. In 1996, she seriously hurt her back after slipping on a gutter outside her N.S.W. central coast home. A local lawyer pursued her claim against Wyong Shire Council, but it was only on the day of the hearing, she says-in June, 2000-that her barrister told her that if she lost she might be liable for the defendant's costs. "Let's get out of here," she said. But the hearing went ahead and her worst fears unfolded. While her lawyer insists she was warned of this possibility at the outset, an embittered Peters wonders how she'll ever pay the $A27,000 bill.

Recent criticisms of the legal system have resonated with some experienced lawyers. Barrister Watson, who has spent 15 years at the bar, says he's "deeply troubled by things that I see emerging out of this corner of the law." Citing some of the "sillier" suits in his experience-one arose from a boy slipping on sweat on a council basketball court-he says N.S.W. plaintiff lawyers are "following in the footsteps of American lawyers in examining ways that claims can be put more creatively for higher sums." For example, moderately injured people are being compensated up front for care they might otherwise have given to others-not just to people, but to dogs and budgerigars. And lawyers had better be abreast of these developments, says Watson, or else they risk being sued for professional negligence by disgruntled former clients.

Dubious suits wouldn't matter so much, Watson says, if judges were setting the bar higher for findings of negligence. Alas, it is a "stock standard joke" in legal circles that "cases that involve no real negligence-just ordinary accidents of life"-are routinely ending in damages awards. Other lawyers concur, arguing that in certain jurisdictions plaintiffs nearly always win, even when they're caught lying under oath; most judges, it's suggested, would rather be known as "generous" than "mean." Judges often aren't helped, Watson argues, by evidence from the "bandwagon of people"-engineers, doctors-attached to litigation: "There are numerous experts who are available to give opinions-for either side-who it is known will support sometimes absurd contentions."

While debate continues on the causes of the insurance-premium blowout and the crumbling of Australian fortitude, solicitor Fegent says he'll get on with helping people. One time, he recalls, a woman came to him who'd been hit on the head by a crate of soft-drink cans in a shopping center. Though her doctor had examined her, Fegent listened as she described her symptoms and became convinced she'd fractured her neck. A scan proved him right. Agent of greed or battlers' friend? Australians are asking themselves a similar question about personal-injury litigation: which is more important-an individual's right to seek redress, or society's need to set limits on the blame game?

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