legal-representation
How often do Davids fail to retain effective legal representation against Goliaths, in Private Law, even if David can pay?
<p>I  ask just about private (civil) law here, NOT criminal. David is the underdog layman, who needs a competent civil litigator against a powerhouse Goliath. Postulate that David can pay lawyers' fees and legal costs — rule this out as an issue. Postulate <em>just</em> good faith, skillful lawyers.</p>
<p>How likely will David fail to find —  and be represented by —  a skilled civil litigator   — <em><strong>solely because</strong></em> Goliath is too powerful?</p>
<p>For example, <a href="https://en.wikipedia.org/wiki/Big_Six_(law_firms)" rel="nofollow noreferrer">Big Six</a> (in Australia), <a href="https://en.wikipedia.org/wiki/Magic_Circle_(law_firms)" rel="nofollow noreferrer">Magic Circle</a> (in U.K.),  <a href="https://en.wikipedia.org/wiki/Seven_Sisters_(law_firms)" rel="nofollow noreferrer">Seven Sisters</a> (in Canada), <a href="https://en.wikipedia.org/wiki/White-shoe_firm" rel="nofollow noreferrer">White Shoe</a>  (in U.S.A.) law firms normally act for Goliath, like moneyed MultiNational Corporations. So they're conflicted from representing David.</p>
<p>A bad faith, wealthy Goliath can deliberately <strong>instruct or retain (Which is the correct term?)</strong> most — if not all — law firms in a jurisdiction. Then Goliath can  intentionally conflict all these lawyers from representing David, and deny David cost-effective realistic legal representation. <em><strong>Do any laws outlaw this kind of Lawyer/Regulatory Capture?</strong></em>
This is a genuine worriment, especially for teeny jurisdictions like Hong Kong or Singapore. Is this worriment less likely in big countries <a href="https://worldjusticeproject.org/rule-of-law-index/" rel="nofollow noreferrer">high on the Rule of Law Index</a> like Canada, UK?</p>
<p>In theory, David can try small town or upstate lawyers in the boondocks?!?!??!  <a href="https://www.murraygottheil.com/2021/08/17/david-and-goliath-in-the-legal-profession/" rel="nofollow noreferrer">The problem is that in some areas of the law, there are only so many lawyers who have deep experience and are really good at what they do. If a client has a complex matter which requires a particular expertise, it is not unusual for the client to discover that the number of knowledgeable lawyers who are available to take on the matter may be quite limited. [...] Moreover, I will readily acknowledge that there are many situations where most, if not all, of the best lawyers who practice in the relevant area of law will be in a large firm.</a></p>
<h3>My child in Hong Kong was such a David.</h3>
<p>Unlike England that has Direct Access barristers, laymen cannot instruct barristers in Hong Kong. My kid couldn't find a solicitor on all of Hong Kong Island to represent him against Goliath! He asked at least 100 firms on Hong Kong Island — they all rejected him! He managed to find some solicitors in New Territories, but some appeared shoddy. Some didn't have websites. Some did not speak professional English. Their offices were run down.</p>
<h3><a href="https://donaldbest.ca/faqs-about-best-v-ranking/" rel="nofollow noreferrer">Donald Best</a> asseverated that</h3>
<blockquote>
<p>Over one hundred Ontario lawyers refused to represent me even as they acknowledged the veracity and power of my evidence. Many told me that while they personally sympathized with my situation facing injustice and corruption, they feared backlash and opprobrium from the profession if they harmed or even challenged the involved senior lawyers and their large Bay Street law firms.</p>
</blockquote>
<p><img src="https://1.bp.blogspot.com/-UVh_9EdDUGA/WaiunI8uA5I/AAAAAAAAC40/t1DR7NrnD58eZn5VazHIk72v_p1qrZkOACK4BGAYYCw/s400/blank_page_____by_neoslashott.png" alt="" /></p>

<p>In the USA,  Goliaths are sued all the time.  Lawyers would go hungry trying to sue Davids, it's the Goliaths who have money.</p>

<blockquote>
<p>How likely will David fail to find a skilled civil litigator to
represent David — solely because Goliath is too powerful?</p>
</blockquote>
<p>It almost never happens in reasonably urbanized areas. It is an issue that usually comes up, if at all, in jurisdictions that are highly rural, for example, Wyoming, or the Northwest Territories of Canada, where the &quot;Goliath&quot; is usually some representative of the national government or a firm representing a national business, and there are extremely few lawyers, few of which have relevant practices.</p>
<p>Even then, it is almost always possible to get one's own out of town counsel, it is just more expensive than it would be if local counsel with appropriate skills could be found, and it takes more time since searching for counsel far from the place where the litigation will have to proceed is less convenient.</p>
<p>It isn't at all unusual for a tiny firm or sole practitioner who didn't attend a high prestige law school to take on a party represented by a large international law firm and win.</p>
<p>For example, I once represented a client in an attorney malpractice case against the largest law firm in the entire United States and secured a quite favorable settlement for them, working as co-counsel in a three lawyer firm, that has also won victories against other large firms.</p>
<p>As long as the client can afford to pay and the client has a case that isn't frivolous and isn't an absolute pain to deal with interpersonally (e.g. the client listens to the lawyer's advice), it is almost always possible to find counsel to represent an underdog against a large and powerful party.</p>
<p>This said, I can't necessarily speak to Hong Kong, which is in a very quirky and unique situation in a quite small market, in the post-Chinese takeover era, which is not the completely the usual open Western capitalist type legal system that it used to have. The Chinese Communist Party's pervasive influence over Hong Kong has changed the nature of legal practice there from the pre-takeover model to the kind of considerations that apply in a non-democratic, non-Western style legal regime even though the transition is not complete. The nature of contemporary legal practice in Hong Kong is totally unlike that nature of legal practice in Canada, the U.S., the U.K., France, Germany, Japan, Australia, New Zealand, or Italy, for example. It is more like that of a lawyer friend of mine who practiced law in Ivory Coast during a military coup regime.</p>
<blockquote>
<p>The problem is that in some areas of the law, there are only so many
lawyers who have deep experience and are really good at what they do.
If a client has a complex matter which requires a particular
expertise,</p>
</blockquote>
<p>While deep experience is desirable, it is rarely necessary in litigation work (for some kinds of specialized transactional work like oil and gas title work, or municipal bond underwriting, this is less true, but conflicts of interest aren't an issue in the same way). After all, all judges are basically generalists, so there are diminishing returns to having all that much more expertise than the judge. Any litigation lawyer has to boil down the law to arguments that the judge can handle.</p>
<p>There are economies of scale in litigation, but they max out somewhere in the vicinity of three or four lawyers and several paralegals. And, a lawyer supported by a couple of junior lawyers or a junior lawyer and a paralegal is usually more than adequate for a &quot;David and Goliath&quot; type case, although for a case between two &quot;Goliaths&quot; which is large and has voluminous facts or a class action case, one really needs to have more staff than that to be effective against a &quot;Goliath&quot;. Scale mostly matters in cases which are evidence and discovery intensive (e.g. hundreds of thousand or millions of documents and dozens of witnesses are necessary to get the case resolved properly).</p>
<blockquote>
<p>A bad faith, wealthy Goliath can deliberately instruct or retain
(Which is the correct term?) most — if not all — law firms in a
jurisdiction. Then Goliath can intentionally conflict all these
lawyers from representing David, and deny David cost-effective
realistic legal representation.</p>
</blockquote>
<p>Possible, in theory, and conflicts of interest do happen, but I've never seen it happen for all firms in the market that can do the job in a quarter of a century outside very rural areas (like Wyoming). Big firms and small firms have different kinds of clients, so conflicts just aren't that common in this kind of scenario.</p>
<p>On the other hand, you have the weasel word &quot;cost-effective&quot; in there. Lawyers handling challenging litigation against a formidable opponent aren't cheap. In areas that I am familiar with, you are talking several lawyers at $250-$500 an hour each, for lots of hours, and big out of pocket charges for expert witness fees. It does cost a lot of money to fight a fight like that. But, it isn't because there aren't lawyers available to do it.</p>
<blockquote>
<p>Donald Best asseverates that Over one hundred Ontario lawyers refused
to represent me even as they acknowledged the veracity and power of my
evidence. Many told me that while they personally sympathized with my
situation facing injustice and corruption, they feared backlash and
opprobrium from the profession if they harmed or even challenged the
involved senior lawyers and their large Bay Street law firms.</p>
</blockquote>
<p>With due respect, Mr. Best is wrong. If a hundred lawyers refuse to represent you, it is because (1) your case is difficult or impossible to prove given the available evidence and legal standards in play (even if you are legitimately aggrieved), (2) they don't think you can afford to do what needs to be done, (3) the case is winnable but the costs of litigating it don't justify the rewards available if you win (<strong>probably the mostly likely reason in the matter described</strong>), or (4) you're an asshole and they don't want to put up with you (the second most likely reason in the matter described). Often, even when the law provides for a remedy in a case, the cost-benefit ratio just isn't there and good lawyers refuse to take on cases where the client, for example, wants to spend $50,000 to litigate a $15,000 problem.</p>
<p>Of course, out of 100 lawyers, if one isn't very thoughtful in how one tries to locate them, perhaps 40-60 simply don't have a relevant practice or are too busy to take on new work. I routinely decline new cases (dozens of times a year, at least) from prospective clients seeking representation in areas outside what I do (e.g. criminal law), or because there is only one of me and I'm currently working flat out on other cases. Small law firms have much less capacity to stretch to take on new work when they are busy than big ones do.</p>

<h2>Lawyers are businesspeople</h2>
<p>Before taking on a civil client, they consider what is in the best interests of their business. They have no legal or ethical obligation to accept any particular client.</p>
