Costs and Pitfalls

Without doubt legal costs cause terrible anxiety for clients (and understandably so). In most matters a fixed fee can be negotiated and Murphy Lyons Lawyers have to stick to that agreement, whether or not it takes more time than Murphy Lyons Lawyers estimated or allowed. Basically Murphy Lyons Lawyers sell their expertise and time. Court or litigation matters fall into an entirely different and complex category. As Betty Davis said about “old age isn’t for wimps”, the same can be said about litigation.

Costs based on a percentage of verdict

The American and Asian people relate easily to costs being a percentage of the verdict, for example one-third (1/3) of the judgement to go to the Murphy Lyons Lawyers. Sadly the Legal Professional Act prevents us applying this mechanism, which has a lot to recommend it. However, costs can be incorporated, along with a fixed fee component, into one cost agreement using a percentage measurement known as a SAFETY VALVE mechanism. For instance “legal cost shall not exceed one–third of the verdict or whatever is the lesser amount”. Litigation should not be entered unwisely, and parties should be prepared to compromise and to be commercial as the outcome can be unexpected and costly. You should be physically, emotionally and financially strong-litigation is not appropr.iate for people looking for justice or fairness – at best Courts provide an approximation for justice and fairness – there is no “absolutes”. The road to Bankruptcy is paved with people who said “it is a matter of principal”.

Litigation is:

• unpredictable;
• time consuming;
• stressful; and
• expensive

And it is impossible to give an accurate estimation of costs, notwithstanding the best will in the in the world. This is not because Murphy Lyons Lawyers are deceitful or evasive about costs, but rather this area is particularly difficult to measure in dollars and cents terms.

Unpredictable

For example, Murphy Lyons Lawyers recently has a battle before the Supreme Court in a matter of Onus-v- Telstra. We are still waiting on the judgement. Our client Mr Onus owns the Oakes Airdrome at Camden. Telstra wish to erect a 30 metre Mobile Telephone Tower approximately 150 metres to the side of the landing strip. In our opinion the tower represented a significant potential danger to aircraft. The Oakes Airdrome does not have a Control Tower to warn planes landing and taking off, nor does it have radar.

Murphy Lyons Lawyers estimated a day in Court. Murphy Lyons Lawyers obtained an Injunction restraining Telstra from erecting the tower. The matter was before the Court for about 5 days. Clearly Murphy Lyons Lawyers estimations were wrong, and the costs have blown out wildly. Hopefully it will have a happy ending for our client, he will obtain a permanent Injunction against Telstra, and that Telstra pay his costs. If Mr Onus does not succeed, Murphy Lyons Lawyers will waive a large proportion of our fees, bearing in mind we still have overheads and wages to pay to keep the office afloat and running.

Blow out of court time

On a happier note Murphy Lyons Lawyers had an interesting case of Hogarth, in which our lady had fallen down the rear stairs of a very old wooden house built on stilts in the outer suburbs of Sydney. Our client suffered injuries, medical expenses, loss of wages , etc. The concrete steps had no side railings. The rear door was very wide pushing pedestrians to the outer edge of the unprotected stairs. If you asked Murphy Lyons Lawyers how long the hearing of the case would take, we would have said ”no more than a day”. If you asked Murphy Lyons Lawyers how much the client would be awarded, we would have said about $100,000. The Defendant said “the house was built prior to the Local Government Act of 1919 and there was no requirement for Railings on the stairs at that time.” This represented a complete defence to our client’s claim. It is unusual to have an old wooden house built about 1900 with rear concrete stairs? We decided to have the concrete steps “Carbon dated”. The concrete steps were analysed and found to be poured in 1976 and therefore the Local Government Act did apply and the stairs required railings.

The hearing went for more than 10 days, and our client was awarded approximately $700,000 plus costs. However the matter did not end there as the other party appealed and eventually we settled on a Judgment of $300,000 plus costs. The point to these examples is that litigation has its own momentum and can twist and turn and take more time than anticipated. Murphy Lyons Lawyers sell their expertise measured in time. Murphy Lyons Lawyers fees are like a taxi metre which is constantly being turned off and on. When Murphy Lyons Lawyers are working on a clients matter the Taxi metre is on. When Murphy Lyons Lawyers are not working on a client’s matter the metre is off.

Adversarial legal system

Our Court legal system is the “adversarial system” and simplistically it is based on the destroying the credibility of a witness or the weight the court should give to that witness’ evidence. Cross Examination is the most lethal part of a case. Lawyers know their “craft” – diluting or destroying the credibility of a witness. It is not a pleasant process for anyone. What you thought was the nub of the case, is not raised, but rather your credibility or the credibility of a witness is attacked and questioned. Dishonesty and exaggeration is the rock upon which many people perish. Case will be lost by the failure of clients to make full disclosure and to be truthful and honest with their lawyers and in the witness box.

When in the witness box you should just answer the question, rather than trying to analyse the question and the ramifications of your answer. So often witness say to themselves in the witness box “if I say that it will destroy my case”, when in reality if the answer is truthfully, it will have very little bearing on the outcome of your case. A little white lie can destroy a case, a really good case. Some of you may recall the fairy tale of Hans Christian Andersen, and reading the book, when “the book is really reading you”. So too, a Judge or Magistrate is reading your performance in the witness box. If you are caught out with your little white lie, all the foundations of your case crumple, and the Magistrate or Judge question your evidence and asks, “if you exaggerated or lied over such a trivial and irrelevant matter, what more serious acts of deceit and dishonesty have you committed”.

You should always refrain from making any admissions to the police without legal advice. Whatever you say to the police will be thrown in your face in the witness box. In Europe the system aims at finding out the truth of what happened, and is called the “inquisitorial system”. Most of the Courts have introduced compulsory mediation in certain matters. When mediation was introduced, Murphy Lyons Lawyers were doubtful as to the utility of such an initiative, but to our surprise it is often very successful. The Federal Magistrates Court, Family Law and the Supreme Court in Estate & Family Provisions claims, require the matter to be mediated prior to the matter being heard by the Court. Recently the Family Court ordered 3 Mediations in a matter in which we were involved .The matter settled on the door step of the Court on the day it was listed for 3 days hearing.