Ysaiah Ross (formerly Stan Ross) is an academic barrister who has

published a number of books on the legal profession and ethics. Most recent

are 'The Joke's on ...Lawyers'  (Federation Press, 1996) and 'Ethics in Law, 2nd ed'  (Butterworths 1998)

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Besides the preoccupation with the mammary glands the reviews were very favorable and the film was well received. Many of the reviewers came away with the same wonderful sense of justice I felt after seeing the film.

 

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Thus, in Australia, a highly risky and technically challenging toxic tort case like the one in Erin Brockovich would probably never be brought at all.

 

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by Ysaiah Ross

   Erin Brockovich was just released in Australia accompanied by a very large advertising campaign. The media emphasized Erin’s tits. The social and political aspects of the film were discussed but there seemed to be a preoccupation with low cut dresses. There was even a discussion about the fact that Julia Robert’s breasts had been made to appear larger so as to match up to the real Erin Brockovich. Besides the preoccupation with the mammary glands the reviews were very favorable and the film was well received. Many of the reviewers came away with the same wonderful sense of justice I felt after seeing the film.

   For many Australians Erin’s role as an investigator (paralegal) for a law firm would be a strange role. This does not mean that Australians cannot accept the concept. There are so many American lawyer TV programs and films that Australian audiences are used to the different American methods of legal work. Instead of having an Erin, Australian firms would have young lawyers doing some of this work. Investigation in Australian law cases is far less extensive than that done in America. In New South Wales (Sydney) and Queensland, there are still some law clerks, many of whom are doing part time law studies, who will help marshal and follow up on evidence for cases. Most of this work would be done for the large corporations, the defendants in these actions, who are the clients of these firms. The vast majority of large firms would not want to take on a tort action against a large corporation for fear of losing their established clients. There have developed in recent years a few ‘class action’ firms in Sydney and Melbourne that concentrate on bringing mass tort actions. Two of the most famous actions brought by these firms have been the Australian Dalkon Shield action and a case against BHP (the largest Australian resource company) for environmental damage in Papua/New Guinea. A recent action against the tobacco industry was unsuccessful, but this may change as the state governments get involved.

   Australia has no central body that can act to bring separate plaintiffs together in mass tort cases. A few ‘class action’ firms, such as Maurice Blackburn Cashman or Slater & Gordon perform this role. These firms have staff to follow up and help the individual clients, but they frequently work on a co-operative model - the client helps in the gathering of the information and evidence. The clients are also asked for contributions to help towards the costs of suit.

  In Erin Brockovich, the law firm takes the case only because, if it wins, it earns a very large contingent fee (40% was the figure mentioned in the film). In Australia, the economics of mass tort litigation are entirely different. 'In Australia, unlike the United States, percentage contingent fee contracts are illegal and may be unethical. All Australian jurisdictions prohibit attorney-client agreements based on a percentage of the award or settlement of the action. On the other hand, all Australian jurisdictions allow by common law or by statute speculative actions where a fee is collected only on a successful outcome of the action. Victoria allows conditional cost agreements with a premium of up to 25% of the costs otherwise payable except for criminal and family law. New South Wales is similar except it prohibits such agreements only in criminal law. South Australia allows up to a 100% uplift fee while in Queensland barristers are allowed up to 50%. Tasmania prohibits an uplift fee for barristers and other jurisdictions have no specific rules on uplift fees.

   Another important difference between Australian and American law is that in Australia the losing party can be required to pay the costs of the defendants, including attorneys' fees. In America, on the other hand, ordinarily each side pays its own fees. The fee-shifting rule in Australia strongly discourages plaintiffs from attempting risky and costly tort cases. The combination of the absence of contingent fees together with the attorney fee shifting rule would probably prevent a case like the one dramatized in Erin Brockovich from ever being brought at all.

   Recently the Queensland Government asked for submissions on reform of the legal profession. A number of practitioners requested that the prohibition on percentage contingency fees be removed. The arguments were that its removal would enhance access to justice by increasing the willingness of practitioners to take matters on a speculative basis. The Government’s Green Paper: Legal Profession Reform was released in June 1999 on p 21 rejects this argument. It states:

It is recognized that the conduct of legal actions in exchange for a share in the proceeds of the litigation may seem attractive to some potential litigants. However, the public policy considerations make contingency fees an unacceptable option. One issue is the absence of a compelling case for legal practitioners to share in the proceeds from an action rather than to be fairly paid for their time and costs. There would be particular concern if charging on a share of the proceeds basis were to become the norm. The practitioner’s interest in the proceedings could be in conflict with practitioner’s duty to the court. It might encourage litigation with limited prospects of success motivated by the potential returns for the practitioners should they be successful or reach a settlement. This would have the potential to increase the cost of the justice system to the community as a whole and the implications for the opposing parties would also need to be considered.

   These views would have greater validity if there were adequate legal aid in Australia for bringing speculative actions. This is not the case and thus many people are denied access to the legal system.

   This situation can be contrasted to the situation in England concerning mass claims. The English system is similar to the Australian one concerning the prohibition on percentage contingency fee contracts and allowing plaintiffs to be subject to possible costs if they lose. However, the English have provided extensive legal aid for mass tort actions. The have developed what is called ‘lead actions’ (test cases). Those who decide to register in one of these cases will be part of the large group getting legal aid. Plaintiffs who refuses to register can conduct their own case. The disadvantage is that the ‘lead action’ will be listed and heard first and the individual plaintiff will not receive legal aid.

   The English have also developed a policy of cooperation for all the various principal agencies, private and public, that are involved in these cases. The Supreme Court Procedure Committee produced in 1991 a Guide for Use in Group Action. The guide helps with the managerial problems that arise in these actions. These include the identification of plaintiff groups and sub-groups, the transfer of cases from various registries to the registry of the judge who will be assigned to do little else but look after the particular litigation, the identification of lead plaintiffs, and lead solicitors for certain issues (one firm, for example, might handle only the scientific issues flowing from documentary discovery), the establishment of action committees to communicate with the solicitors and coordinating Legal Aid and special billing procedures for the solicitors and their groups. [See Aronson & Hunter, Litigation, 6th ed. 1998]

   The Pacific Gas & Electric case in Erin Brockovich highlights the best aspects of the American contingency fee system. The Australian media have reported numerous American cases where lawyers have received outrageous fees from this system, while plaintiffs have been left with insufficient recoveries. Australian lawyers frequently shake their heads over the fees earned in these cases and either comment how they have missed out or that these kind of fees are unconscionable and bring the legal profession throughout the world into disrepute.

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Ysaiah Ross (formerly Stan Ross) is an academic barrister who has

published a number of books on the legal profession and ethics. Most recent

are 'The Joke's on ...Lawyers' (Federation Press, 1996) and 'Ethics in Law,

2nd ed' (Butterworths 1998)