Contingent Fees and Tort Reform: A Reassessment and Reality Check

By Inselbuch, Elihu | Law and Contemporary Problems, Spring-Summer 2001 | Go to article overview

Contingent Fees and Tort Reform: A Reassessment and Reality Check


Inselbuch, Elihu, Law and Contemporary Problems


ELIHU INSELBUCH [*]

I

INTRODUCTION

Many consumer organizations, public advocates, labor unions, and plaintiffs' lawyers view the United States' system of contingent fees as nothing less than the average citizen's "key to the courthouse door," giving all aggrieved persons access to our system of justice without regard to their financial state. [1] Others, including some defense counsel and academics funded by or speaking for corporations and their insurers, view them as the bane of our legal system, the source of frivolous and expensive litigation that lines the pockets of the claimants' lawyers with unwarranted and extravagant fees. [2] Despite a 1994 formal opinion of the American Bar Association finding contingent fees to be squarely within the bounds of American legal ethics, [3] they remain subject to attack by their critics. [4]As Congress and some state legislatures continue to debate the subject of "tort reform," [5] however its advocates may define it, contingent fees will almost certainly remain among the primary targets of the cries for change.

Most of the calls to limit or eliminate contingent-fee compensation are at best misguided. If there are real inefficiencies associated with litigation, they do not arise out of the actions of injured plaintiffs and their attorneys, who have no motive to make litigation slower or more expensive. Rather, it is the manufacturers, their insurers, and their attorneys whose economic self-interest leads to prolonged litigation and, in the process, makes the system cumbersome and expensive. This article reviews the role of contingent-fee compensation in the United States' legal system, considers the criticisms leveled against it, and offers alternatives to the critics' suggestions on how to redress the problems that, according to their claims, are the products of such fees. [6]

II

THE ROLE OF THE CONTINGENT FEE

In theory, any litigant may retain counsel on a contingent fee basis to pursue or defend against most actions. [7] Plaintiffs retain counsel on a contingent fee basis to pursue a wide variety of claims outside the arena of tort law, such as actions based on the violation of federal civil rights, antitrust, and securities statutes, and even garden variety collection cases. But the overwhelming number of contingent-fee retentions occur in tort cases, and so for the most part, it is the contingent-fee contract between a tort plaintiff and counsel that has drawn the most attention from the bar and commentators.

For at least a century, the use of contingent-fee contracts for legal services has been an accepted practice in the United States. [8] In this respect, the system of justice in the United States has parted company with its English counterpart, which does not permit contingent-fee contracts. [9] The English common law considered them illegal on the ground that they were champertous. [10] The ban appears to have survived in present-day England in large part because of a perception that contingent fees are responsible for excesses resulting from the commercialization of American jurisprudence, [11] as well as the relative reluctance of British subjects to resort to the legal system to redress wrongs. [12]

It is perhaps ironic that American critics of the contingent-fee contract cite England as the preferred model. [13] What they ignore is that in England, a plaintiff with limited means and a claim to assert has recourse to that country's substantial Legal Aid program, which is financed by the government. [14] The United States, of course, has no comparable nationally financed legal aid program for providing counsel to aggrieved persons in civil cases. Because the United States lacks such a system, the contingent-fee contract is widely recognized as the means by which all Americans may retain counsel to seek legal assistance, no matter what their means may be. Critics in the United States do not suggest the substitution of a nationwide government-funded legal aid system for the contingent fee. …

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

Items saved from this article

This article has been saved
Highlights (0)
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.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
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, APA and Chicago citation styles.

(Einhorn, 1992, p. 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.

Cited article

Contingent Fees and Tort Reform: A Reassessment and Reality Check
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

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, 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."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.

    Author Advanced search

    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.