Ethics and Strategy in Personal Injury Litigation

Abstract

The purpose of this article is to examine the relationship between professional ethics and strategy in personal injury litigation and bargaining.' Its theme, however, is the role of co-operation between the representatives of plaintiffs and defendants in an adversarial litigation system. This must be examined within the institutional context of the Law Society's Personal Injury Panel which promotes a particular set of professional norms in civil litigation. The approach is inspired by the research of Axelrod on strategic co-operation2 and Condlin on ethics in bargaining.3 Moreover, I argue that we must heed Galanter's call for contextual accounts of the dispute resolution process.4 The four male solicitors whose strategies form the empirical focus of the article were selected from a sample receiving instructions under the personal injury schemes of trades unions and professional associations ('personal injury schemes'). Under such schemes, trades unions instruct solicitors in private practice (trade union solicitors) to handle the claims of their members who suffer personal injury. The trade union provides financial backing for the member/plaintiff but does not usually interfere with the way individual claims are handled. This context offers a view of strategic choices in a practice environment which is unusually free of certain kinds of constraint. Therefore, while clients' preferences generally provide a structure to lawyers' work, personal injury lawyers in general, and trade union solicitors in particular often enjoy considerable latitude in deciding how to resolve their client's claim.5