Paying It Forward

WORDS: Brendan Nyst PHOTOGRAPHY Supplied

Finding a lawyer to represent you without a fee attached is probably less common and more difficult than you assume.

I have a big court case coming up. How do I get a lawyer to represent me for nothing? 

With some difficulty, I suspect.

I am often surprised to hear people automatically assume law firms will take on their case on a no-win-no-fee agreement, or for self-promotional purposes, or just as an act of pure charity. Somehow, lawyers have earned the dual reputation of being both unscrupulously greedy and, at the same time, endlessly selfless. In reality, the truth undoubtedly lies somewhere in between the two.

Law is a business, like any other, so lawyers like to be paid for their services. And generally they are – handsomely. But it’s not always the case. There are some limited circumstances in which most lawyers will take on work without necessarily insisting on payment – up front, in full, or perhaps even at all – for their services.

Perhaps the most common example of that is in the provision of what are called pro bono legal services. The term pro bono comes from the Latin phrase pro bono publico, which means “for the public good.” As a profession, lawyers are encouraged to take on – as a regular part of their business – some level of pro bono work undertaken solely for the public good, usually by providing legal services to the needy, either for free or for a significantly reduced fee, with no expectation of any commercial return.

Most lawyers I know do their share of pro bono work, helping less fortunate individuals in extraordinary circumstances, helping charities and non-profit organisations, or advocating issues of public importance which otherwise would not be pursued. Unfortunately, however, the harsh realities of business life dictate that the capacity for any individual lawyer to take on such work will be necessarily limited.

Additionally, litigation lawyers will sometimes be prepared to take on court cases on a speculative – or what nowadays is commonly known as a ‘no-win-no-fee’ – basis. That, of course, means exactly what is says, that if the lawyer doesn’t ultimately win the case for their client, then no fee will be charged. That has become increasingly common practice in the field of personal injuries litigation, where individuals are effectively suing insurance companies for compensation for injuries suffered in motor vehicle collisions or other unfortunate circumstances. Many lawyers practising in that field will operate predominately on a no-win-no-fee basis, confident that if the case is won the insurer will be in a position to pay the damages awarded and all associated legal costs.

However, that doesn’t mean such lawyers will take on every damages case that walks through their door on a no-win-no-fee basis. As much as lawyers enjoy a good fight, they still need to pay the bills. And not all damages cases will be worth the risk of punting one’s fee. The first job of any lawyer in that position will be to assess the likelihood of winning the case. An innocent passenger injured in a motor car crash will have high prospects of recovering damages, but a driver who was arguably at fault for causing the crash may not. So the lawyer may be happy to represent one on a no-win-no-fee basis, but not the other.

Likewise, in litigation involving deceased estates and matrimonial property settlements, law firms will often be willing to act on a speculative basis if there is an identifiable pool of funds from which they can expect to recover their fees once the case is finalised. Depending on the nature of the case, litigation funders can also be engaged to pay legal fees on behalf of plaintiffs seeking a damages payout. That is common practice in major class actions and other large litigation matters where, but for third party funding, the plaintiffs would be simply incapable of sustaining the action. But a litigation funders’ decision whether or not to provide funding will be based on a similarly hard-nosed assessment of the strength of the case, and the likelihood of ultimate recovery.

So, it depends on your circumstances, and the nature, merit and prospects of your court case. But, if you’re looking for a lawyer to spec your novel campaign against Big Pharma for infringing your rights, maybe you shouldn’t get your hopes up too high. Good luck.

Visit:Brendan Nyst at Nyst Legal-  Dispute Resolution & Litigation, Wills & Estates – www.nystlegal.com.au