Access to justice - economic issues

Question 1

What is time billing? 2

Answer 1

• lawyers work hours billed to clients, most often in 6-minute increments or hourly
• does not include other matters such as professional development and office management which are non-billable

Question 2

What is a flat fee?

Answer 2

• an agreed upon cost for a legal service, they charge one total fee in exchange for the service

Question 3

What is no win no fee?

Answer 3

• you only have to pay your lawyer if they win the case
• also known as conditional costs agreements
• however there are still other costs required to pay including disembursments, such as for photocopying, medical report fees, court fees, barrister’s fees etc.

Question 4

pros and cons of no win no fee 3

Answer 4

• an uplift fee may be required on top of the other disumbersment fees, uplift fees are usually described as a percentage of the legal fees charged
• the client doens’t have to pay any upfront fees
• it takes the burden/risk off the client in paying expensive lawyer fees

Question 5

What is a contingency fee?

Answer 5

• arrangments made for lawyers to receive a percentage of the monetary amount a client obtains when they win or settle a case

Question 6

Pros and cons of contigency fees

Answer 6

• there could be increased pressure to settle a case to receive the monetary benefits even if it may not be in the best interests of the client
• the client doesn’t have any upfront fees to pay
• no hourly fees
• lawyers are incentivised to work hard so they will win and receive monetary benefits
• could end up having high percentage payments, up to 40% which means the client receives less compensation

Question 7

Pros and cons of a flat fee 4

Answer 7

• provides the client with predictability and assurance in knowing how much they would have to pay so they can budget properly
• sometimes the estimated fee may be inaccurate and the lawyer is working more but not getting paid enough
• effective for certain services such as producing a will or contract
• potential for over/under charging

Question 8

Pros and cons of time billing 4

Answer 8

• good for the lawyer in ensuring they get paid for all the hours/minutes they work for the client
• can cause lawyers to stretch out the tasks so they can bill more hours (quantity over quality)
• makes the process more stressful for the client in not knowing how much they will be paying
• lawyers have to ensure they track time consistently and accurately

Question 9

What is a class/representative action?

Answer 9

• indivdual clients are grouped together in a shared action against a common defendant, usually a major corporation which has caused some injury to hundreds or thousands of people

Question 10

What is alternative dispute resolution?

Answer 10

• the resolution of disputes outside of court
• lawyers have an obligation to inform clients of potential alternative means before going to court
• the legal system considers the preservation of family and relationships to be important and this gives them a better option to do this

Question 11

Pros and cons of a class action 3

Answer 11

• costs millions of dollars to investigate and pursue which is only recoverable if and when the claim is successful
• victims of corporate negligence or delinquencey would appreciate the opportunity to recover some compensation that would otherwise not be avaliable to them
• there are competing interests such as if someone is content with settling for $10 each but others want $1000

Question 12

Ethical issues that can arise in a class action 3

Answer 12

• conflicts of interest between litigation funders and applications
• disproportionate risks and cost burdens on the representative of the plantiff
• funders can’t get recompensated fo rhte costs and risks they incurred

Question 13

What is legal aid?

Answer 13

• a commission that provides free legal information, provides advice and legal representative services

Question 14

Pros and cons of legal aid 5

Answer 14

• funded by the state, but underfunded
• getting eligibility for legal aid is extremely difficult to attain with the strictness of passing the means, merit and matter test (merit - reasonablity of the success of the case, means - income and assets, matter - criminal/civil etc.)
• 98% of legal aid recipients receive an income that could be considered below the poverty line however don’t pass the tests
• the funding is not meeting the demand and so the test has become stricter to reduce those eligible
• if eligible they may be helped by a lawyer or receive funds to pay for a private lawyer

Question 15

Explain a bit about community legal centres 3

Answer 15

• independent ngos with a focus on advice, workign with other agencies to address legal, financial, social and health problems
• services include advice, referral and some limited representation in special cases, they also research legal problems for the purpose of law reform and community legal education
• funded by the government

Question 16

What is pro bono

Answer 16

• means for the public good
• where a lawyer provides legal representation without pay

Question 17

Argue for and against pro bono being made compulsory for lawyers

Answer 17

For:
- it is part of a lawyer’s professional duty to justice
- being a lawyer is not just a job, its a profession and this comes with added expectations
- good for professional development and law students gaining experience
- commercial benefits with producing positvie public images of lawyers
Against:
- could create further conflicts of interest
- no other profession requires such expectations, such as that of a doctor
- could erode pro bono work as a voluntary activity for the betterment of society and just become tedious
- unfair on smaller legal centres

Question 18

Pros and cons of ADR

Answer 18

• Cost-effective
• minimal delays, process is much more efficient than court
• maintains confidentiality, can be used by corporations to keep the issue quiet
• parties have more flexibility and control over the decision