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Attorneys in Early Modern England and Wales           Litigiousness in Early Modern England

Causes of Litigiousness: Inflation and Legal Fees


Conclusion: Inflation and the Change in Attorney Fee Structures Encouraged Litigation

The 3s4d Attorney Fee

This passage will be revised shortly. It is now clear that the basic fee structure changed. In the 1530's attorneys charged not 3s4d per term, but 20d per term: the cost of an attorney actually doubled between the 1530's and 1607. I will update this assertion with footnotes and greater definition shortly. See, for instance, case (comment: Nov. 12, 2007)
Brooks (pp. 101-2) accurately identified part of the way in which inflation interacted with attorney fees to encourage litigation. The fee an attorney charged was 3s4d per term. That fee had remained stable since the late fourteenth century, but the sixteenth century suffered monumental inflation. Since the attorney fee remained nominally the same, the actual value for hiring an attorney under James I was about a tenth what it had been under Henry VII. Under James I potential plaintiffs simply found it cheaper to resort to litigation.

The degree to which inflation actually increased the volume of litigation by decreasing the value of legal fees is unclear. For those cases that went to judgment, the plaintiffs would recover their assessable legal fees, although not any gratuities they made the attorneys. The assessable legal fees were evidenced by receipts and awarded not as "costs" (costs in judgments seemed to be relatively minor expenses incurred by the plaintiff himself) but rather as the "increment" awarded by the court. The increment usually amounted to something in the neighborhood of 6 or 7 pounds sterling, easily observable in the AALT plea rolls from 1607. If the case went to judgment, then, the cost of hiring an attorney was irrelevant to the plaintiff, since the burden was shifted to the defendant. It remained true, however, that a defendant in debt could terminate the case simply by paying the debt. If all the debt defendants sued by an original writ simply paid, then the plaintiff was left with the attorney fees--but he had recovered his money expeditiously. Plaintiffs, of course, would likewise have to worry about whether shifting attorney costs to the defendant would simply exceed what could the debtor could pay. All told, the lower value represented by the stable nominal 3s4d per term attorney fee must have had some effect in promoting litigation, but not as much as would appear at first impression.

The 40s Rule

The 40s rule dictated that in lower courts suits of debt or detinue for 40s or more had to be brought by writ; a correlative jurisdictional rule dictated that in debt and detinue the court of common pleas would not normally handle suits in debt or detinue for values less than 40s. The origins of those rules and the impact on local courts around 1300 can be found in Palmer, The County Courts of Medieval England, chapters 7 and 8. It seemed intuitively obvious that the sixteenth century inflation, which dictated that 40s represented an ever declining value, would allow much more debt litigation into the court of common pleas. Brooks, p. 97, adhered to that view.

The interaction between the inflation and the 40s rule, however, had little if anything to do in fact with the increase in litigation in the late sixteenth century. Litigants in the fifteenth century had already demolished the effect of that rule, despite the fact that the rule remained the same. Relatively few cases that were initiated were actually resolved by jury verdict. Plaintiffs could also satisfy the 40s jurisdictional rule in common pleas by asserting a 40s debt against a single debtor from multiple transactions. Thus all the plaintiff had to do to use the court of common pleas to sue a debtor who owed only 30s was also to allege in addition, falsely, a loan of a further 10s. In all likelihood the debtor would pay the real debt before the case got to a jury, and the creditor would then simply discontinue the litigation. If the debtor was obstinate and the jury found against the plaintiff for the false 10s debt allegation, the plaintiff would suffer a small amercement for the false claim, but at least he would have recovered the larger 30s debt. The predominance in 1607 of debt allegations of 40s and the frequency of such allegations that pleaded a transaction of some kind and then also a subsequent loan to the debtor of the exact amount to reach 40s indicates that that procedure still had a lively life in the early seventeenth century: even in 1607 litigants were bringing claims for debts that were in fact worth less than 40s into common pleas. Thus the declining value of 40s had little if anything to do with the increase in central court llitigation, because the actual effect of the jurisdictional 40s rule had long since been eviscerated.



The Fee Structure

While the 3s4d per term attorney fee remained stable, the method of imposition of that fee did not. The fact that a single writ of debt could initiate many different suits of debt meant that attorneys had to decide whether to charge 3s4d for the single process of a debt writ against, say, fifteen defendants for different debts or 3s4d for each different debt encompassed in the single writ. Attorneys made different decisions in this matter, and there is no way to determine how many opted for which fee structure. At least some opted for the single payment per process, even though that process went against multiple defendants for completely different transactions. The single fee of 3s4d per term lasted all the way through the exigent order, because still at exigent order all the defendants were encompassed by the single enrollment. Separate 3s4d per term fees applied at the term when pleadings were submitted, because at that point different enrollments were required for each defendant (the fee structure operated something like the litigation equivalent of a MIRV missle.)

This fee structure appears in suits by attorneys for their fees in the body of the plea rolls, so Brooks, who did not resort to the body of the plea rolls, did not notice them. I have three clear examples of this fee structure: CP40/1783, m. 2,196; CP40/1796, m. 2,654; CP40/1799, m. 712d. Unfortunately, none of these yet appear in the AALT database. Location of three instances is actually fairly good evidence. Many of the attorney fee suits are against clients who had been defendants in debt litigation, and thus would not show this phenomenon; litigants in trespassory cases, whether plaintiff or defendant, would likewise not reveal this fee structure. Even fee litigation against plaintiff clients in debt would not reveal the fee structure unless the suit had been initiated against several debt defendants and the cases had lasted through to the submission of pleadings (and only 13 out of 100 debt cases actually reached pleading).

The effect of this fee structure was that plaintiffs in debt would save money by suing at the same time all current debtors who had defaulted, even if the creditor was relatively sure that some of them would pay on their own. Attorneys would rightfully indicate to their clients that they would save money (since, if those debtors did pay in fact before the case reached pleadings, then there would be no separate attorney fee for the process against them at all). To critics of the legal profession, that rightful and necessary advice to the plaintiff creditor would appear to be the encouragement of frivolous and unnecessary litigation. Certainly, defaulting debtors who intended to pay but who were simply unable to do so at the specified due date would have been annoyed.

My best estimate from the attorney fee suits is that that fee structure was not rare; to the extent that it was used, it would have increased the volume of debt litigation. Brooks. p.69, apparently used the attorney warrant rolls and/or the prothonotary docket rolls to estimate the percentage of the docket represented by debt litigation, but neither of those sources would reveal clearly the practice of encompassing multiple debt cases in a single writ of debt. His assertion that debt litigation constituted only 80% of litigation in debt is thus inflated by inclusion of feigned suits used as security for debts before there was a controversy between the parties (see Methodology) and also underestimates the remaining number by more than a factor of 2. In percentage terms debt constituted in excess of 90% all the cases in the court of common pleas; since there was so much litigation, however, the cases in trespass, case, etc., were still significant in actual numbers and particularly among the pleaded cases. The conclusion here is that any change in fee structure for debt could have a great effect on the overall volume of litigation in the court of common pleas.

The new attorney fee structure, used by some indeterminable portion of attorneys, significantly increased the volume of litigation in the late sixteenth and early seventeenth centuries, as did the inflation itself. Neither of these factors, significant in themselves, would seem sufficient to account on their own or together for the actual size of the increase in litigation.