Monday, June 30, 2008

Claim for anything, as long as its not against a lawyer !

Reminding us all we can lodge claims for just about anything, as long as its not a claim of negligence against a member of the legal profession - or any other friendly profession to lawyers who happen to be insured by the same insurers !

The Scotsman reports :

Don't forget that the repeat players have a massive advantage

By Brian Fitzpatrick

IN THE early 1970s, US legal theorist Marc Galanter published Why the "Haves" Come Out Ahead.

Nowadays, his central thesis might seem obvious and his characterisations a bit simplistic. He says the world of litigation is made up of "one-shotters" and "repeat players". One shotters are the majority of ordinary citizens who rarely find themselves in a court case – perhaps a divorce or custody battle or suing after an accident.

Repeat players are those involved "in many similar litigations over time". Examples would be the prosecution service, insurance companies, commercial lenders and landlords.

One-shotters are generally individuals, have few resources and are litigating for immediate one-off outcomes. Repeat players tend to be relatively wealthy in scale and resources, and often "pursue long-run interests".

As seasoned litigators with deep wallets, repeat players enjoy what Galanter calls "advance intelligence" from going through similar litigations.

Professionals rather than enthusiastic amateurs, they can "structure the next transaction and build a record. It is the repeat player who writes the form contract, requires the security deposit, and the like".

As we look on at the behaviour of banks and finance houses who created the credit crisis and yet devolve its results on to more onerous and expensive obligations for individual customers Galanter's observations take on a current-day significance.

Northern Rock, amid all its problems, has little difficulty in repossessing homes at a rate outstripping its competitors and with much more chance of success than the debtor in financial straits, trying to keep a roof over his family's head.

The war-chest of experience built up by repeat players finds arms in expertise aided by an ability to access specialist lawyers and paid experts who service litigation.

The small-firm lawyer seeking to secure a report from a medico-legal expert might have to wait a while – the insurer who pays by return or instructs reports by the hundreds can secure a report in days.

The repeat player makes sure to secure the services of the highly expert major law firms. In turn those firms can access even more expert practitioners at the Bar while increasingly acting as vocal lobbyists for the interests of their clients, even if losing the odd individual case. The repeat player can bear the cost of losing cases far better than any individual. So, when negotiating, it can apply pressure the one-shotter might find irresistible.

If you are a spinally injured car accident victim with a claim of £2.5 million, a "final offer"of £2 million will make you think long and hard. The UK insurance industry, through huge investment in its case management system, knows better than any judge and most claimant lawyers just how much money is needed to see off a troubling claim.

It is not all one-sided. Here in Scotland expert claimant lawyers have, to some considerable extent, evened up the field. Asbestosis, deafness, white finger and other mass litigations would never have secured the sums achieved for thousands had there not been trade union-backed law firms trading blows with insurers.

Legal aid has also provided some measure of antidote, though, nowadays, with a legal aid certificate being somewhat more rare than the proverbial unicorn it represents more a case of providing some bandaging rather than proper even-handed access to justice.

The various equalities bodies have taken up cases and advanced the rights of women and ethnic minorities but with very straitened resources. Making sure that ordinary citizens can secure access, not just to the courts but to expert lawyers has to be at the heart of any debate on the future of our legal system.

Speaking recently in Edinburgh, Lord Rodger reminded lawyers that achieving justice between the parties "not just a result" was what our civil justice system should be about. As we discuss the next phase of Lord Gill's review of the courts we might bear in mind Lord Rodger's concerns that, when considering proposals to divert personal injury cases to the Sheriff Courts, account has to be taken of the potential of diverting work from a globally recognised centre of expertise. Gallanter would have smiled.

• Brian Fitzpatrick is an advocate in the Ampersand stable

No comments: