Sunday, 3 January 2010

Ambulance Chasing Lawyers - the Myth and the Reality

Ambulance Chasing Lawyers – The Myth and the Reality

By Adam Manning

The compensation culture is a concept that is often thrown about by the newspapers when attacking health and safety legislation and the way it is implemented but thankfully the recent Panorama programme “May Contain Nuts” provided an unusually balanced view of the subject with only one exception.

The culprit of the piece was the often maligned personal injury lawyer and those employing their services: those who have been injured through no fault of their own and are seeking to claim compensation.

One of the speakers espoused the view that solicitors are embarrassed by the use of “no win no fee” agreements to run personal injury claims and that they wish they had never been created. This is quite definitely not the case as they provide a powerful means for many people to obtain the services of a personal injury lawyer to help them with their claim for compensation.

The principle of “no win no fee” is normally arranged in an accident claim using what is technically called a Conditional Fee Agreement (or CFA). It has this name as the lawyer’s fee or bill is conditional upon a successful claim. In other words, the injured party has to be successful in making a claim for compensation for the solicitor or barrister to be able to claim their fees for all the work involved in the case.

The background to the introduction of the CFA during the 1990s was the by and large complete withdrawal of legal aid for injury claims by the UK government (with the exception of clinical negligence claims). To ensure that many people could still use a lawyer to help with their case, the CFA was created. The main advantage to most people is that they will not be expected to pay up front or indeed generally at any time during the case for the solicitor’s legal costs. Normally when instructing a solicitor or barrister to deal with a case, a client is expected to provide an initial payment of money on account of legal costs and to continue to make regular payments for costs as the case proceeds. This simply does not arise under the CFA which as a result removes a large obstacle to many private people in obtaining the services of a lawyer.

The legal costs incurred by the injured party (or claimant) are claimed at the end of the case from the defendant (or normally their insurance company) if the claim is successful. If the claim is unsuccessful the legal costs are written off. It’s as simple as that – the CFA is an easy way for people to obtain the services of a lawyer whatever their income.

Personal injury lawyers are not, as the programme suggested, embarrassed about using the CFA as it enables them to help people pursue their legitimate claims for compensation when they have been injured through no fault of their own, whether it be at work, in a road traffic accident, on holiday or any number of circumstances. As it is based on the principle of “no win no fee”, the personal injury lawyer acting for a claimant is keen to understand a case quickly and give the best advice possible on the chances of success. As the lawyer will only be paid if the claim is successful, they have a vested interest in only taking on cases that have some reasonable chance of winning.

This does not mean they are only interested in taking on cases that will definitely win. Far from it. The CFA can provide for what is called a “success fee”. This is an enhancement of up to 100% of their bill if they are successful in fighting for compensation if they are successful. In simple terms, the riskier the case, the higher the success fee is to balance the risk of losing. This encourages lawyers to take on riskier cases where there is some but not necessarily a very high chance of winning to help people claim compensation. This can be important in cases involving serious injuries where there might be, for legal reasons, complexities or difficulties involved in winning the case.

The flip side of this principle is that lawyers are, for obvious reasons, not keen to take on cases that are unlikely to win. They do not want to do lots of work on a case and not get paid for it. This means that weak cases are unlikely to be taken on and that clients get honest advice from lawyers as to their chances of success.

There is nothing vulgar, as one of the speakers in the programme suggested, about acting for a client under one of these agreements. Too many personal injury lawyers it is an important and valued aspect of their careers that they act for people who are badly injured and have effectively no one else to turn to for help in trying to get their lives back together after a serious accident. Injury lawyers who act for those suffering whiplash injuries, back problems, fractures and broken bones and so forth can help in other ways aside from pure compensation. They can arrange for the provision of medical treatment such as physiotherapy or investigations such as MRI scans and X rays. Other forms of help such as Cognitive Behavioural Therapy or counselling may be available. Claimant solicitors can in some cases arrange for rehabilitation to help with returning to work, which is often an important part of the recovery process for many people.

After an accident some go through a period in which they are unable to work and this can lead to serious financial problems. An injury lawyer can obtain an interim payment which might provide help with the mortgage or rent. In very serious cases an injured person might need help or care and assistance for years to come and it will be the lawyers role to claim this to the appropriate amount. There is nothing vulgar about this type of work – indeed it is an important service to society in helping those who have no other means of redress.

Solicitors who act in this field are allowed to advertise their services just like other businesses can. There is nothing exceptional about lawyers that should prevent them from advertising themselves to potential clients. Many people who are not legally trained find the law a difficult and unknown area and if they need help from a solicitor they will find it valuable if the process of talking to one is made as easy as possible.

It is entirely for society’s benefit at large if people are aware of their rights and no one should be criticised for seeking to use the law in the pursuit of a legitimate claim for redress. To suggest otherwise in practise leads to a situation in which only an educated elite utilise the law and that cannot be right in a modern democracy.

1 comment:

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