Blaming the Advertisers

Without any empirical evidence, several commentators including prominent politicians have suggested that one reason why rural Progress Associations have shut down their fêtes is that personal injury litigators have been advertising their services. The confidence with which this blame is laid on solicitors who advertise personal injury litigation services probably derives from the complete lack of data to justify it. But it would be naïve to suppose that political debate - even about financial affairs such as public liability insurance premiums - could be restricted to debaters willing to expound their evidence.

The kind of empirical data we would need, if anyone were seriously intent on investigating the facts, would have to include at least the following matters.

• When did the kind of advertising being blamed actually commence?
• Are we sure there was no equally effective touting, legitimate or otherwise, beforehand?
• Exactly what kind of advertising are we condemning? Big city firm glossy pamphlets? The same firms’ soigné cocktail parties and "seminars"? Trade union referrals? Local newspaper announcements? Tacky late-night TV commercials? Word of mouth at the bowling club?
• Has the intensity of the impugned form of advertising (once we have singled it out) materially increased since its commencement?
• Where are these advertisements reaching?
• Have legal proceedings advancing personal injury claims, as recorded by filings in the courts with jurisdiction over the areas where the advertisers’ clients are, increased over the period from before such advertisements commenced and as (if it be the case) their intensity has increased?
• Can one identify that a material part of the increased filings (if any) are attributable to solicitors who advertise personal injury litigation services in an unapproved way?
• Are we sure that we have properly allowed for increases in population, traffic, community events and risky entertainments, in calculating any "increase" in personal injury claims over the period in question?
• Can we show that verdicts awarded after a contest or agreed by compromise are larger on average, after allowing for inflation, following the advent or intensification (if there be any) of the impugned advertising?

These basic questions are really only the start. Statistics are worse than useless if their collection and presentation do not at least try to grapple with elementary issues of stating the hypothesis of interest, reasoning why certain facts would be relevant to its falsification or otherwise, devising means of collecting data about those facts, checking and re-checking those data for basic reliability, and explaining the statistical mathematics by which any perceived difference can be described as being of potential causal implication, as opposed to mere chance. None of this approach is novel. None of it has been attempted - to judge from publicity so far - by the proponents of slash-and-burn "reform".

One statistic has been trumpeted, less so after some understandable incredulity was expressed as to the use made of it. From APRA figures, the snappy estimate of "88,000" was assigned for the number of claims, variously described and compared unfavourably with some impliedly acceptable past, for public liability claims against registered insurers. It is still a mystery how the Ministerial advisers who presumably thought this was a good figure to bandy about managed to persist in that view the next morning. Some of the comparisons performed with it compared not only a lesser number of policies in the past but also a narrower category of policy in the past - making it not so much apples and oranges as apples and wheelbarrows.

Worse, there was not the slightest attempt to question, let alone investigate, what were supposedly insurance companies’ data, to see whether they addressed, let alone satisfied, the basic empirical queries listed above. What kind of claims? For what kind of mishaps? Lodged by solicitors?

One thing seems very clear: these "claims" mostly did not result in any litigation. So much for the "litigation" explosion. However one slices, dices and stir-fries the frankly inadequate data provided by the various court systems in Australia, there is no way one can cook up 88,000 annual filings of personal injury claims. It is a pity that idea did not occur to the inventors of the clever summer-holiday PR with which the over-hasty debate commenced.

Of course, if the insurers were serious about understanding whether, and if so what, may be the problem, they will provide suitably anonymised and verifiable analyses of the "88,000", or whatever other horror aggregate may be bruited, so as to understand whether the advertising of personal injury litigation services by some solicitors has had the slightest effect on the relevant sector of their industry. Don’t hold your breath.

For a practising barrister professionally brought up by older practitioners of real decorum, it is quite difficult for me personally to feel sympathetic with advertisements by any litigators. I feel somewhat as if surgeons or anaesthetists were advertising - because, by very broad analogy, the rôle of litigation in civic order is roughly the same as surgery in physical health. That is, they should both be seen as a last resort, to be avoided if possible in individual cases, and to be prevented en masse to the extent possible. But neither of these aims, rationally based as they are on the unpleasant and dangerous aspects of these extreme remedies, should justify putting horns and pointed tails on barristers any more than on surgeons, or disapproving the recourse to their services by clients any more than by patients.

Many, of whom it may confidently be predicted few have suffered major legal wrongs in their lives, will dismiss my analogy with surgery as nonsense on stilts, because sufferers very often have no real choice about surgery - whereas, they assert blandly, all plaintiffs have a choice not to litigate. Well, so they do, but only if they are resigned to giving up utterly, without protest, perhaps tugging their forelock to a rich and powerful wrongdoer, all their supposed legal rights in the matter. The analogy is with a would-be surgical patient being pressured not to have elective surgery although it is the only means by which he or she could regain tolerable health. I am quite prepared to push and defend this analogy at least to these lengths.

Fundamentally, we compose a society that cares for the rule of law or not. No doubt it is a good thing of which we could have too much. But it comes down to the basic issue of being able to resort to litigation when someone has committed a legal wrong (ie an act or omission which our society by its explicit laws has previously declared to provide a remedy for persons harmed by it) and you have been harmed in your physical person or your pocket as a result. If you are one of those contemplated by the law as able to sue in order to ensure that the cost of the wrongful harm is borne by the wrongdoer rather than by the victim, what exactly do the recent detractors of personal injury litigation say is the social vice?

Once upon a time, not very long ago at all, even in the memory of middle-aged counsel, both sides of politics at all levels of government were hot to trot for enhanced access to justice. This meant there was sweet concord in the New South Wales Parliament, in 1993, when the regulation of advertising by lawyers was taken away from the lawyers - by sec 38J of the Legal Profession Act 1987, the terms of which have obviously escaped those advising the Prime Minister (if there be any) when he confidently spoke of the "disaster" constituted by the "lawyers" reversing their time-honoured prohibition of advertising. Not for the first time on matters of law and justice, Mr Howard has his basic factual premises wrong.

What the most populous, back then by far the most litigious, the most prosperous and easily the most heavily lawyered jurisdiction in Australia did in 1993, by a combination of both sides of politics, was to liberate lawyers to advertise "in any way the barrister or solicitor thinks fit". The same law forbade false, misleading or deceptive advertising and went further by forbidding advertising if it "might reasonably be regarded" as such. Similarly, the price of the new liberty included not merely the pre-existing prohibitions on misleading and deceptive conduct which would automatically apply under the Commonwealth’s Trade Practices Act 1974 or the State’s Fair Trading Act 1987, but also conduct which merely "might reasonably be regarded" as contravening those provisions. So, lawyers did not become free to the same extent as other advertisers, commercial or otherwise: there was extra restraint and caution required.

Unfortunately, even the most charitable observer could be forgiven for thinking that the succeeding Governments in New South Wales, and the Law Society in New South Wales, have been less than enthusiastic in their policing of these requirements. Either that, or else no-one in authority has ever seen a personal injury litigation advertisement they didn’t like. Perhaps it’s time for the confessions of the regulators.

In my opinion, one aspect of all litigation advertisements should always have been closely scrutinized. The fee arrangement sloganized as "no-win-no-pay" really takes the cake as inherently misleading - unless the advertising lawyer is somehow promising to indemnify unsuccessful plaintiffs against the legitimate claims for costs which would almost invariably be ordered against them in favour of the successful defendants. Reimbursement of certain expenses, and the possibility of fee demands if compromises were not accepted by clients, are other examples where such advertisements could easily misrepresent the true position. Alas, there are no traces of attempts to regulate any delinquencies by advertising solicitors in these regards, assuming they ever took place.

I hope this does not sound too complacent on behalf of barristers. The observable fact is that there has been virtually no advertising by barristers, notwithstanding our freedom to do so.

Over this whole issue, like a blanket over a pea, is the pervading national policy of the Nineties, viz competition policy. Freedom to advertise litigation services was advanced as critical to real competition, and competition was advanced as critical to an enhancement of access to justice. (It is ironic, as well, to recall the bi-partisan support for so-called uplift to be permitted on the fees of litigators who agreed to charge fees only if the client were successful. The Bar resisted uplift, as quite unnecessary given the century-old willingness, approved and applauded by the High Court, under its secular saint Sir Owen Dixon, to take "spec briefs". That resistance was in vain, but at least the original suggestion of 100% was moderated to 25%. These were, like the advertising thaw, Government policies supported by the Opposition. The conservatives were in power.)

Now, solicitors willing to offer personal injury litigation services may advertise, more or less, only in print - and only in the quaint manner of informing an eager public of their names, addresses and areas of practice. Note the signal omission, which we know is deliberate because it was protested before the new regulations were made. Notwithstanding competition policy, notwithstanding consumerism, and notwithstanding the statutory requirement for fee arrangements to be disclosed where practicable before a client retains a lawyer, the new Puritan advertisements may not - on pain of criminal sanction and disciplinary damnation - mention a price. Even worse, one could be forgiven for thinking, would be a whisper of the awful possibility that a litigator might take a case without expecting to be paid if it doesn’t succeed.

Given that cases may be good, bad or indifferent, it is clear that this undiscriminating anti-advertising regulation is calculated to prevent good as well as bad cases from being litigated as often as they are supposed to be at the moment. Thus, the sorry spectacle is presented of a Government, cheered on by the Opposition - parties reversed from 1993, but their agreement on the latest nostrum for lawyers’ wickedness intact - making law to stop ordinary and poor people going to law.