Britons to get funding in tobacco liability cases.

The British government has made it easier for English smokers to sue tobacco companies by giving them free legal aid. The action is the equivalent of "opening a second front" in the tobacco litigation war, said Richard Daynard, head of the Tobacco Products Liability Project at Northeastern University School of Law in Boston.

Damages have never been paid to any U.S. smoker who has sued a cigarette maker, though plenty of Americans have filed suits claiming negligence and fraud, Daynard said. By contrast, no similar suits have ever been tried against cigarette makers in England.

"This makes life much harder for the cigarette makers," Daynard said. "There will be that many more opportunities for them to contradict themselves [in testimony]. The more places that we have this litigation going on, the more people will say, `Those tobacco companies shouldn't be getting away with murder.'"

The Legal Aid Board for London, a government agency, will likely issue a single contract to a core group of law firms whose lawyers will conduct preliminary research for the litigation, Daynard said. The board then would distribute certificates to some 200 low-income people who claim injuries or illnesses from cigarette smoking. The claimants then could retain lawyers who receive government funding for their work.

The action is unusual, Daynard said, because it "seems to be edging Britain along toward something like a class action approach." Britain does not use class action suits in its legal system.

Britain's decision also gives U.S. lawyers an opportunity to see a different system at work. The U.S. government provides public funds for indigent criminal defendants but not for plaintiffs in civil suits. The U.S. legal system allows trial lawyers to charge contingency fees. In Britain, contingency fees are illegal.

The legal aid board soon will award contracts to lawyers seeking to represent British claimants. Currently, no cases have been brought. "It's like being given the money to start on discovery without having a specific case in front of you," Daynard said.

J.D. Lee, a Knoxville, Tennessee, attorney who represents plaintiffs in tobacco liability cases, said the British action is welcome. "It shouldn't have any affect on us other than favorable," he said. "It's beneficial to all [U.S. and British claimants], especially if they can get a positive verdict."

The British antitobacco group, Action on Smoking and Health, initiated the funding idea with the legal aid board but was rebuffed in 1993. To receive legal aid, applicants must show that they have "reasonable grounds" for suing and that it is "reasonable" for legal aid to be granted. The board members who granted the aid request in January heard arguments from claimants and tobacco industry representatives.

Daynard said he doubted the British litigators would draw up a different legal strategy from what has been tried in the United States. "I think a strong case can be made for negligence if not fraud. One thing I think they mill focus on is the fact that the tobacco companies knew how to make safer cigarettes but didn't."

In the United States, judges in Miami and New Orleans recently certified three class actions, the largest one in New Orleans. In that federal case, all nicotine-dependent smokers in the country, as a single class, have been cleared to sue tobacco companies. The claimants contend the companies falsely assured them that nicotine in cigarettes was not addictive. (Castano v. American Tobacco Co., No. 94-1044,1995 WL 66635 (E.D. La. Feb. 17,1995); see Class Actions Against Tobacco Companies Win Court Approval, TRIAL, Mar. 1995, at 98.)