Access to Justice in a World without Lawyers: Evidence from Texas Bodily Injury Claims

By Silver, Charles; Hyman, David A. | Fordham Urban Law Journal, February 2010 | Go to article overview

Access to Justice in a World without Lawyers: Evidence from Texas Bodily Injury Claims


Silver, Charles, Hyman, David A., Fordham Urban Law Journal


Introduction
 I. Data Description
 II. Results
       A. Descriptive Statistics
       B. Multivariate Analysis
          1. Changes in the Rate of Self-Representation over Time
          2. Claim-level Factors
             a. Claim Size
             b. Claim Complexity
             c. Cost of Legal Services
             d. Regression Analysis
 III. Discussion
       A. Implications of Our Findings
       B. Time Trends
       C. Effect of 1995 Tort Reforms
       D. The Proof is in the Pudding
       E. Experience in Other States
       F. Wealth and Income and the Decision to Hire Counsel
       G. Limitations of Our Study
Conclusion

INTRODUCTION

Price controls are unpopular, except when they are imposed on plaintiffs' lawyers. Sixteen states have caps on contingency fees; (1) none cap defense-side fees. (2) The federal government limits the fees plaintiffs can pay in Federal Tort Claims Act ("FTCA") cases, (3) Social Security disability cases, (4) and claims for veterans' benefits. (5) In 2003, 2004, and 2005, the House of Representatives passed a bill capping contingency fees in medical malpractice cases--only to see it die in the Senate each time. (6) Judges have followed suit; in recent aggregate products liability proceedings, three federal judges capped the plaintiffs' lawyers' fees after noting a "trend in the states to limit contingent fees to 33-1/3% or less of net recovery." (7)

Claimants are the supposed beneficiaries of these restrictions, which are said to protect them from excessive legal fees. (8) The assertion is facially plausible: lawyers' fees are the biggest component of litigation costs, so policies that reduce fees may help claimants. Yet, the pressure to cap contingent fees comes from tort reform groups, representing drug manufacturers, medical providers, liability insurers, and other repeat players on the defense side in litigation. Like all interest groups, tort reform groups advocate policies that help their supporters. (9) Because tort reform groups have defendants' interests at heart, it is safe to assume that these groups expect caps on contingency fees to help defendants--most likely because price controls tend to cause the supply and quality of services to decline. (10) When lawsuits become less profitable for lawyers, plaintiffs' attorneys will predictably become more selective and may even move into other uncapped lines of work, or retire. Because expected marginal earnings also decline, lawyers will predictably invest less in the cases they do accept-that is, they will litigate less intensively.

Will plaintiffs' ability to recover for their injuries also decline? Although most academics believe "meaningful access" to the tort system requires legal counsel, (11) claimants can always represent themselves. (12) Many tort claims settle without formal litigation, and nearly all settle without trials. (13) Some studies contend that claimants who represent themselves don't do that much worse than claimants represented by attorneys once attorneys' fees are subtracted. (14) If self-representation is a viable option, caps on contingency fees may have less of an impact on access than one might otherwise expect. (15) Conversely, if tort recoveries flow only or mostly to plaintiffs who either actually hire lawyers or can credibly threaten to do so, caps on contingency fees may make it difficult or impossible for many victims to obtain justice.

We explore this issue by looking at patterns of representation among claimants who received payments for bodily injuries ("BI") in Texas during 1988-2005. Our database includes every closed claim with a payout greater than or equal to $10,000 (nominal) from five commercial lines of insurance. Approximately 7% of successful BI claimants represented themselves. Paid claims brought by persons who represented themselves had smaller payouts and were almost always resolved without litigation. Self-representation was roughly four times as common (12% versus 3. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

Access to Justice in a World without Lawyers: Evidence from Texas Bodily Injury Claims
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
Items saved from this article
  • Highlights & Notes
  • Citations
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Search by... Author
    Show... All Results Primary Sources Peer-reviewed

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.