LegalBeagle

Recently I was emailed by a reader who told me that they had a legal problem which required the services of an attorney, but they had been advised that the costs of suing someone could range from approximately R 5 000-00 to around R 50 000-00 if the matter was one which was brought in the High Court. Due to financial constraints (which I'm sure we all face!), they were unable to put forward any funds towards Attorneys legal fees.Thus, they wanted to know what avenues were available to those who did not have the required funds to employ attorneys. In reply to their question, there are 4 basic solutions to those who are financially constrained :-

1. Pro amico. This is an agreement between the attorney and his client that the attorney will work for free until judgment is given, settlement is reached or another form of 'victory' is achieved by the attorney. Upon this happenstance occurring, the attorney will then take his fee out of the proceeds recovered from the Defendant. So, should a positive result not be achieved by the attorney, he will not get paid. Unfortunately, because of this fact, most attorneys will not undertake work of this sort. Litigation can be a see-saw of subjectiveness and, as the old saying goes, 'No future is certain'...

2. Legal Aid. Those who are without the funds to employ an attorney can approach the Legal Aid board for assistance. An application form is completed wherein the Applicant is subjected to a 'means test'. The means

test is used to determine whether the Applicant is a suitable candidate for Legal Aid, ie. is the Applicant REALLY destitute? During my relatively brief legal career I have seen many financially crippled, poor and destitute or near destitute people who have had not nearly enough money to even SEE an attorney, never mind employ one. Unfortunately, I have only ever encountered one Civil court matter wherein the Defendant was represented by the Legal Aid Board. I do not see the Legal Aid board as a viable avenue for destitute or near destitute people wishing to institute or defend actions in our Courts, but should one wish to apply, the Legal Aid Board in Durban has offices at the Durban Magistrate's Court, Somtseu Road, Durban (next to Durban Central SAPS).

3. Legalwise. Legalwise are a legal costs insurance company. People who are concerned about costs of litigation can pay a monthly fee to Legalwise and should the need arise for said person to institute or defend action brought against them, Legalwise will investigate the merits of their case and, in most circumstances, appoint an Attorney from their panel of attorneys to act on your behalf. Unfortunately, like most insurance, when you need it, you probably don't have it... A measure of foresight is involved if a person can anticipate when they are going to require legal costs insurance, or alternatively, one needs to take out a policy with Legalwise and stick with it! Again, no future is certain!

4. Contingency fee agreements. A lot of law firms utilise Contingency fee agreements. Contingency fee agreement work is similar to pro amico work in that the attorney and his client agree that no money will be exchanged until judgment, settlement or another positive, fruitful outcome is reached. Upon this occurrence, the Attorney takes a 'cut' of the money recovered for his client. In terms of the Contingency Fee Agreements Act, this amount is limited to 25% of the amount recovered by the Attorney on behalf of his client. If they are not successful or do not reach a positive outcome, the attorney gets nothing. Most attorneys utilise this method of payment in personal injury matters, especially where their client is poor or financially constrained. Unfortunately, in my experience, clients who have been injured and seek to recover money from the party at fault often 'smell money' and because of this are less than truthful in an attempt to obtain a better payment for their injuries. Who could really blame them, after all they aren't liable for any attorney's costs. The attorneys handling the matter are also somewhat at fault for the simple reason that if their client gets more money, they themselves get more money. Often I have seen matters where a client will exaggerate, pretend and just plain lie to make their condition seem significantly worse than the actual situation. It is these people who seem to have forgotten that the truth always comes out. Having said that,

Contingency fee agreements are superb alternatives for those who cannot afford legal representation. Regard must be had, however, to the abovementioned pitfall by both attorney and client...

In South Africa there is, unfortunately, not much legal assistance for the financially disabled. It is a sad state of affairs and I would advise those who can afford to pay for Legalwise Insurance to consider investing in it.

"The Jury System? Well, if I were guilty I'd prefer to be brought before a jury. If I were innocent, I'd much rather prefer a judge." - Anon.

Legal Beagle would really welcome your comments on this issue’s article! Please write to him and share your opinions! Write to the address above!