Contingency

The allowance of legal practitioners to charge on a contingency basis meets with approval since it allows the underprivileged to litigate.

What is not permitted is for witnesses to charge on a contingency basis, because to charge for only successful outcomes would discredit their objectivity.

However, it seems that some legal practitioners do so by asking medical witnesses to ‘write off’ their fees if the outcome of the case does not provide a reward for the claimant (an ipso facto for the legal practitioner).

This is done by selective ostracism of those witnesses who do not ‘cooperate’, and are thus eliminated from that legal practitioner’s inventory of witnesses.

Thus, the conscientious counsel should open their cross-examination by asking the witness whether it is the case that they will only be paid if the outcome of the case is ‘successful’. If the question is not asked, then it should be asked by the presiding judge. If this is the case, the specific witness must be classified as ‘biased’.

Accepting cases on a contingency basis is a gamble that some legal practitioners take, which mostly pays handsomely. However, there is no reason why advocates and witnesses should act on the same basis when the gamble fails, least of all when they are not informed of the risk in advance.

Jon Driver-Jowitt MB BCh FRCS (Wits) is a
Consultant Orthopaedic Surgeon in Cape Town.

This article was first published in De Rebus in 2020 (Sept) DR 4.