PrepTest 139

Topic: Legal

Paragraph 1

• Paragraph note
  • A proposed change in LRCWA report (introducing contingency fees in Western Australia)
• Views, minor Meta-Structures, and the author's attitude
  • Definition of "contingency fee": Lawyer gets paid only if they're successful in the case (third sentence)
  • Author's view:
    • The Law Reform Commission of Western Australia (LRCWA) report recommends several recommendations to introduce contingency fees (second sentence)
  • Comparison, according to the author:
    • Lawyers take on more risk under a contingency-fee arrangement , so the fees are higher than normal (last sentence)
  • Author's attitude: "several important recommendations" (second sentence); "generally exceed" (last sentence)

Paragraph 2

• Paragraph note
  • Details of contingency fee proposal ("uplift" fee intention; requirements: (1) last resort and (2) client can't pay the normal fee)
• Views, minor Meta-Structures, and the author's attitude
  • Definition of "uplift" contingency fee: Lawyers' normal fee plus a percentage of fee as bonus if win (first sentence)
  • The intention of "uplift" fee:
    • Prevent lawyers from getting too much and clients too little (second sentence)
  • List of two requirements of an "uplift" fee, according to LRCWA:
    • The fee must be a last resort after they've tried to arrange a normal fee (last sentence)
    • Lawyers must be satisfied that the clients can't afford the normal fee if they don't win (last sentence)

Paragraph 3

• Paragraph note
  • Author's opinion on how requirements affect lawyers (forces lawyers into a burdensome investigation into factors that may change)
• Views, minor Meta-Structures, and the author's attitude
  • Author's view:
    • It's unfortunate that the LRCWA's recommendation would require lawyers to look at more than just law (client finances; cost of litigation), which is an onerous (burdensome) investigation into factors that may change as the litigation goes on (first and last sentences)
  • Example of factors that change as the lawsuit goes on, according to the author:
    • Strategies adopted by the opposing side (last sentence)
  • Author's attitude: "Unfortunately" (first sentence); "forced to investigate" (first sentence); "onerous for a number of reasons, not least of which ... change as the case unfolds" (last sentence)

Paragraph 4

• Paragraph note
  • Author's opinion on how requirements affect clients (unfair since only the least well-off can use it when reasons for it apply to everyone)
• Views, minor Meta-Structures, and the author's attitude
  • Author's view:
    • The LRCWA's requirements are unfair because they limit the freedom of contract to clients who don't "qualify" (middle- and even some upper-income people) when the reasons for entering the arrangement apply to everyone (first through third sentences)
  • List of reasons for entering a contingency fee relationship:
    • Finance litigation costs (fourth sentence)
    • Shift risk to lawyers (fifth sentence)
    • Align the lawyer's and client's interests, increasing lawyers' diligence and commitment (last sentence)
  • Author's attitude: "burdensome" (first sentence); "unfair" (first sentence); "unjustly limit freedom of contract" (second sentence); "make certain types of litigation inaccessible" (second sentence); "More importantly" (third sentence), "primary reasons ... hold for all clients" (third sentence); "reasonable to assume" (last sentence); "increase lawyers' diligence and commitment" (last sentence)

Main Point: The proposed change to allow contingency-fee arrangements in Western Australia would be burdensome for lawyers and unfair to clients. 

Criticizing a Viewpoint: This passage best fits the Criticizing a Viewpoint Meta-Structure.* In such a passage, the author describes a view held by another person or group and then criticizes their view. Importantly, the author’s argument should focus primarily on why the view is wrong, unjustified, or misguided. (If the author offers an alternative, then the passage may be better described as an Old Approach/New Approach passage. If the author focuses on a misconception or oversight, the passage may be better described as a Correcting the Record passage.)

In this case, the author spends almost the entire passage arguing why LRCWA's recommendation to adopt an "uplift" contingency-fee arrangement in Western Australia is bad. (The author may tacitly acknowledge that the recommendations might have some benefit — clients who couldn't otherwise afford a lawyer would be able to. But other than that, the recommendations are all bad for the author.) The author uses the third paragraph to explain why these arrangements would be too burdensome for lawyers and the fourth paragraph to show how the arrangements would be unfair to clients.

When a passage utilizes a Criticizing a Viewpoint passage, the main point is generally the author’s central criticism. We summarized the author's two primary criticism in our anticipated main point.

*As with most passages that use a Critical Meta-Structure, we could use another Meta-Structure from that family to describe this passage — particularly Correcting the Record. We could also call this as a Problem/Solution passage, as long as we note that the author is very sour on the proposed solution.

List: This passage presents several lists. The first is in the second paragraph, where a list of requirements that must be met before a contingency-fee arrangement is allowed is presented (P2, S3). The second is in the fourth paragraph, where a list of reasons that all clients would enter into such an arrangement is presented (P4, S3-S6). These are limited and exist as support for the author's overall argument, so they're likely to be asked about in a question or two while not necessarily being reflected in the correct answers to big-picture questions.

This passage includes quite a bit of information about what a contingency-fee arrangement is, with not only a general description but a discussion of the specific type discussed here. You may have your own idea of what a contingency-fee arrangement is, creating an expectation that might not match what's defined here. It's important to be very clear on what the specific type of contingency-fee arrangement in the passage — the "uplift" fee arrangement — is. That's defined in the second paragraph. When a lawyer wins, they get their normal fee plus an "agreed-upon additional percentage of that fee." So it's not a percentage of the settlement or verdict, but rather a percentage of their normal fee that they receive as a "bonus" for winning. We can almost guarantee that there will be a question testing your ability to distinguish what is defined here from what most people believe a normal contingency-fee arrangement with a lawyer is.