Animal lawyers must choose their battles carefully in their quest to encourage incremental change benefiting the welfare of animals, writes Angela Priestley

Since April, the BP Deepwater Horizon oil spill has delivered an almost endless stream of oil directly into the Gulf of Mexico, leaving turtles, birds and fish covered in oil and struggling to survive.

Although we are relatively powerless to physically minimise the full impact of the disaster on those animals affected, American lawyer Joyce Tischler and a small group of animal lawyers organised under the banner of the Animal Legal Defense Fund have proven that we can use the law to prevent it getting worse.

The group successfully sued BP and the US Coast Guard for violating the US Endangered Species Act in their proposal to undertake the controlled burning of a section of oil, which would have burned turtles alive in the process. BP was forced to reach an agreement with government agencies to halt the planned burn off.

Tischler is in Australia this month to tell lawyers here that they too can use the law to better the wellbeing of animals in a myriad of situations. During a presentation to a packed room of lawyers over a vegan lunch at Corrs Chambers Westgarth's Sydney office, Tischler spoke of the time she spent lobbying for meaningful legislation for the protection of animals, and about what local lawyers can possibly learn from her American experiences.

The ALDF has, for almost four decades, embarked on some unique cases in an attempt to facilitate incremental change for the welfare of all animals.

"Since those early days, we have sued using a wide variety of federal and state laws," Tischler said. "Each case we've fought has not only taught us about the law and the problems animals face, but also how our legal system works, how we can find the low hanging fruit and how we can be opportunistic and find ways to create change." It's the hunt for winnable opportunities that appears to drive the success and progression of animal law in the United States and in Australia.

"We must establish a foundation of law suits that we can win, and build on that foundation. We have to look at opportunities that can help us achieve positive gains," said Tischler.

Animal lawyers need to make smart choices as to where they apply their work because the opposition they usually encounter will be fierce, noted Tischler. "We must understand that economic and other interests that are aligned against animals, like agribusiness, hunting, researching and entertainment industries, all have more money, connections and power than we do," she said. "We have to be savvy. We have to pick winnable fights. We have to choose cases carefully."

Tischler added that no amount of passion for the plight of animals can substitute for high quality legal work. Animal lawyers must be trained and mentored closely to ensure they not only understand the philosophical issues involved in animal law, but also how to practice law in a highly complicated manner.

The area of animal law is much younger in Australia, but has seen some significant progress over the last few years - particularly through Voiceless, which was founded by father and daughter team, Brian and Ondine Sherman.

Brian Sherman said the organisation aims to use the law as a key driver in assisting the welfare of animals. Only legal action, he said last week at the Corrs Voiceless animal law lecture, could take apart what he believes is the absurd notion that the law defines animals as property. "It was inconceivable to us that highly qualified lawyers might accept such a proposition," he said.

Australian lawyers, legal academics and law students have stepped up to debate such a proposition in a significant way.

Several years ago, the field of animal law in Australia did not exist - universities did not teach it and law firms did not contribute to its development via pro bono work.

Today, nine law schools teach animal law in Australia. Sherman reported that all large law firms have given Voiceless some kind of pro bono work and the second animal law text book has just been published. Last year, former High Court justice Michael Kirby launched the first such book.

Still, more work needs to be done and Katrina Sharman, in-house counsel at Voiceless and one of Australia's first animal lawyers, noted the significance of working with and learning from lawyers overseas to progress the field of animal law.

"Legislative frameworks may differ between nations, but the problematic issue of systematic animal abuse and institutionalised animal suffering are issues that transcend jurisdictional borders," she said.

Animal law looks set to become a significant practice area in the future. But the stakes in any animal law case are always high, and lawyers must be prepared to confront some bleak prospects. The work, said Tischler, is deeply profound.

"When you win a case, you know you've saved precious, sentient beings from suffering or death. When you lose, you are painfully aware that your client is going to be kept in a persistent state of suffering or may even die," she said. "That's a heavy load, but I wouldn't have it any other way."

The disaster in the Gulf of Mexico highlights just how vast and numerous the battles animal lawyers could choose to fight actually are. While the turtles might be spared from the fate of being burned alive, it's just a small win in a monumental man made disaster.