Related to my last blog entry on barratry and my ongoing fascination with obsolete and esoteric legal concepts, my current discussion topics are the concepts of champerty, maintenance, and the alluringly-titled concept of embracery.
Barratry, as you may remember, has to do with soliciting lawsuits (aka ‘ambulance chasing’), formally defined as “the offense of frequently exciting and stirring up quarrels and suits, either at law or otherwise” (Black’s Law Dictionary, 6th ed., 1991 at 103–you can tell by the edition that I bought this for use when I was a law student!). Champerty and maintenance are related common law concepts in that they also have to do with frivolous litigation. In maintenance, a non-party to the suit (aka “the maintainor”) interposes him or herself in the ligitation; it is defined as an “officious intermeddling in a lawsuit by a non-party by maintaining, supporting or assisting either party, with money or otherwise, to prosecute or defend the litigation.” (ibid., 658). Champerty is a specific form of maintenance; while maintenance could consist of financial or non-financial help, champerty involves a non-party to a lawsuit (aka “the champertor”) having an agreement with the plaintiff to finance the litigation with an aim to securing some agreed-upon share of the recovery. Black’s defines it as a “bargain between a stranger and a party to a lawsuit by which the stranger pursues the party’s claim in consideration of receiving part of any judgment proceeds” (ibid., 157). Interestingly, the etymology of the word is derived from the Anglo-Norman French word “champartie”, referring to a feudal lord’s share of his tenant’s crops.
Historically, the common law viewed these as a tort and a misdeamnor on the grounds that they encouraged frivolous lawsuits. “But wait, isn’t this what a contingency fee is all about?”, an astute reader might ask. Yes– while historically the common law prohibited such arrangements, now many common law-based jurisdictions do allow contingency fees or conditional fees. In the U.S., their use in personal injury cases is widespread, although it is generally not allowed in criminal law or family law cases. Moreover, many states put limits on the percentage that the lawyer taking the case may recover, but 33 to 45% of the recovery is generally the norm. The American legal system has tended to accept contingency fee arrangements in personal injury cases on the grounds that it fosters accessibility to the courts on the part of plaintiffs who might not otherwise be able to afford to pursue lawsuits. In England, the longstanding prohibition against champerty and maintenance fell into obsolescence by the 19th century, although they remained crimes on the books until the passage of the Criminal Law Act 1967. As a result, in the U.K. conditional fees are a fairly recent phenemenon, having only become commonplace within the last twenty years or so.
Of the three, “embracery” has the nicest ring to it– it even sounds romantic!–but what is its relationship to the others? Well, first of all a word on its etymology– the roots of this word are from Anglo-Norman French “embraser”, meaning to kindle a fire. Still sounds a little romantic, no? Indeed, an “embraseour” was one who kindled a fire, but in the legal context it refered to someone who corrupted the judicial process by juror tampering. Historically, it was punishable under English law by fine and imprisonment, and dates back at least to the mid-14th century. Both the person inducing the juror, as well as the juror himself, was liable. It was rarely prosecuted from the 19th century onwards, and the last recorded English prosecution for enbracery was in 1975 but the conviction was overturned the following year by the Court of Appeal on the grounds of obsolescence. Interestingly, there could be no offense of “attempted embracery”, as of the offense itself consisted of attempting to tamper with a jury regardless of whether it was successful. It was recently formally abolished by virtue of the Bribery Act 2010. Just for fun, I’m going to see how many times I can weave the term “embracery” into everyday conversation this week. My guess is: not many.
So, to recap– maintenance is the meddling or involvement in another party’s lawsuit, for financial or non-financial reasons; champerty is assisting with another party’s lawsuit in order to share in the recovery; and embracery is the unlawful influencing of a party to a lawsuit (usually a juror) . Barratry, in contrast, had to do with the the solicitation of lawsuits. All of these are clearly related and may be subsumed under the rubric of “administration of justice”. Hope you enjoyed this latest foray into legal esoterica!