"Grass Looking Greener for Litigators"
The Globe and Mail, May 25, 2005
By Beppi Crosariol

For 33 years, Jack Fireman built a thriving practice defending insurers against personal injury claims. It was lucrative and secure work, thanks to the rising tide of litigation over the years and to his roster of deep-pocketed clients. By the late 1990s, Mr. Fireman's former Toronto partnership, Fireman Regan, had become, by his reckoning, the largest litigation specialty firm assisting casualty insurers in Ontario.

But now the onetime king of personal injury defence work is Public Enemy No. 1 to the very corporations he used to defend.

"I know my picture is on the wall of most claims departments of most insurance companies -- wanted, dead or alive," says the outspoken Mr. Fireman, who once owned a world-championship softball team called the Toronto Gators. "Short for litigators," he explains.

Frustrated with the insurance industry's move to cut costs by capping hourly rates paid to lawyers and scrutinizing legal invoices with a fine-toothed comb, Mr. Fireman decided in 2000 to pack it in as a defence litigator, trying his hand instead at plaintiffs' work.

After working in the offices of Rocky Lofranco, a prominent Toronto personal injury litigator, Mr. Fireman bounced back with a vengeance, landing several settlements in the $8-million-plus range and even an unusually high $1.8-million court award last year for an auto accident cases. "When you're not dealing with class actions, those are big numbers."

His practice has become so rewarding that in February, at 66, he launched his own new firm, Fireman Barristers, devoted solely to plaintiffs' work. "It's certainly lucrative," says Mr. Fireman, who once drove Mercedes and Jaguar sports cars but now owns a Lexus sedan partly "for safety reasons."

Mr. Fireman may be the highest-profile personal injury defence lawyer to jump to the plaintiffs' bar, but he is by no means alone. The list of defectors includes Robert Kram, formerly at Fireman Regan, and Albert Conforzi, a top jury lawyer with defence firm Hughes Amys. Both are now at plaintiffs' specialist, Pace Law Firm of Toronto.

David Neill, a former member of the U.S.-based International Association of Defense Counsel, is now acting exclusively for plaintiffs at Toronto's Thomson Rogers.

Samis & Company, a top personal injury defence boutique in Toronto, recently lost one of its senior litigators, Guy Farrell, who formed a partnership with Sal Grillo in the firm of Grillo Farrell.

"It's a continuing problem," says Lee Samis of Samis & Company. "The economic pressures do tempt lawyers who are on the defence side to go to the plaintiffs' side."

Lawyers say the exodus has been driven by severe belt tightening by insurance company clients.

"A lot of lawyers didn't like the interference that they were getting," Mr. Neill says. "You put up with it for a while and when you have non-lawyers auditing accounts, it doesn't sit well."

Mr. Fireman says many insurers in the 1990s imposed a ceiling of about $300 an hour on the fees they were willing to pay outside lawyers. That pales compared with the $500 to $700 commanded by many of the best trial lawyers in the country.

"I think the insurance industry's loss is my gain," says Al Pace of Pace Law Firm, which also boasts ex-defence stars Myron Sidenberg and Allan Chapnik. Mr. Pace's eight-lawyer firm also represents a trend in the plaintiff's bar away from the sole practitioner toward larger boutiques with formidable resources, including support staff such as ex-insurance adjusters and nurses. Mr. Pace employs six former adjusters.

Other reasons for the talent shift to the plaintiffs' side: more clients and higher court awards.

Mark Yakabuski, a vice-president for federal affairs at the Insurance Bureau of Canada, says personal injury payouts have risen sharply, putting a strain on budgets. In Ontario alone, he says, auto-related claims for serious and permanent injury jumped to 10,400 in 2003 from 7,600 in 1998, and award sizes have been increasing. During that period, he says, the number of auto accidents actually decreased.

"We can't afford to have experts being cross-examined for six days, which is something that I've heard of, and contribute virtually nothing to a better understanding of the case," Mr. Yakabuski says.

Mr. Fireman says insurers are the authors of their own misfortune because they are no longer willing to pay for good lawyers who can make the difference between winning and losing. "Eventually you're going to get your brains kicked out because a good lawyer on the plaintiff side is going to punish the kind of lawyers you now have going into court for you," he says.

"That's why the insurance industry is paying larger claims. Not because of medical bills, not because of legal fees, but because they're going on the cheap."

Another key development in the strength of the plaintiffs' bar, litigators say, is the rise of provincial trial lawyers' associations, essentially support groups for plaintiffs' counsel that help members share contacts and opinions about the legal merits of specific cases

 

 
 
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