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A number of studies refute the claim that the contingent fee
encourages attorneys to take on nonmeritorious cases. So too does
simple common sense. Economic disincentive alone precludes attorneys
from taking a case where the plaintiff is not entitled to be compensated
for injuries. When a plaintiff is not compensated, the attorney
is not compensated.
"The common allegation that the contingent fee induces
attorneys to bring claims with little legal merit has no basis
in logic. The fact that the fee depends on winning provides
an incentive to screen out cases with little legal merit --
an incentive that is lacking with an hourly fee."
Patricia Munch Danzon, Rand Corporation, Institute for Civil
Justice, "Contingent Fees for Personal Injury Litigation,"
Summary at viii (R-2458-HCA, June 1980).
Similarly, a U.S. Department of Health, Education and Welfare
Commission on Medical Malpractice concluded that the contingent
fee does not open the courthouse doors to undeserving plaintiffs.
"The contingent fee arrangement does not encourage lawyers
to accept nonmeritorious cases with a low probability of winning
just because the possible recovery is large."
Stephen K. Dietz, C. Bruce Baird, and Lawrence Berul, "The
Medical Malpractice Legal System," Report of the Secretary's
Commission on Medical Malpractice, U.S. Department of Health,
Education and Welfare 87, 154 (January 16, 1973).
While the AMA has been a proponent of limiting the contingent
fee, its own Special Task Force on Professional Liability and
Insurance concluded:
"Regulating [contingent fees] may not reduce the number
or severity of suits."
Sue Brown, "Do Contingency Fees Really Cause Malpractice
Suits?" Medical Economics, October 21, 1985, at 56.
The American Bar Association has stated that "contingent
fees provide access to the courts; and no justification exists
for imposing special restrictions on contingent fees in medical
malpractice actions."
American Bar Association, Blueprint for Improving the Civil
Justice System. (February 1992).
According to a study conducted by the Washington State Supreme
Court,
"Contingency fees are a valuable feature of litigation
in the United States and should be retained."
The Novack Commission, Report of Findings and Recommendations,
Washington State Supreme Court, December 1988, at 9.
The Washington study also discarded the argument that contingent
fees encourage frivolous lawsuits.
"[That argument] is not empirically supported, and is
best answered in any event not by changing counsel's method
of compensation but by remedies such as those created by Superior
Court Civil Rule 11 and by RCW 4.84.185 which provides for attorneys
fees to the prevailing party if a claim or defense is asserted
frivolously and without reasonable cause."
Id.
The argument that contingent fees encourage frivolous suits is
groundless. Rule 11 is a mechanism by which the court can reprimand
both the plaintiff and the attorney for bringing a frivolous claim.
It has been implemented in 28 states around the country. Moreover,
to suggest that because a jury finds for a defendant in a civil
case means the case was frivolous is just as erroneous as suggesting
that every time the government loses a criminal prosecution the
charges were frivolous.
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