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The contingent fee puts the middle class on equal footing with
the wealthy. Eliminating the contingent fee would price the middle
class out of the market for justice and would especially disadvantage
women and the elderly.
Without the contingent fee system, none but the wealthy and powerful
would be able to bear the costs associated with pursuing a claim
and receiving just compensation. Worse still, often only those
whose negligent conduct causes injury would be able to afford
quality legal representation.
The contingent fee system allows access to the courts for middle-class
families. This is one of the distinct differences between the
United States and countries elsewhere in the world. It is a hallmark
of our democratic system.
Interestingly, at a time when even [former Vice President Dan
Quayle] has attacked the contingency fee, many in England and
elsewhere are discovering that it has its advantages. Not only
does it provide access to justice for many victims, it also
imposes on attorneys a powerful incentive to perform well."
Michael Napier, "For Many, English Rule Impedes Access
to Justice," Wall Street Journal, September 24, 1992, at
A17. (Mr. Napier is a practicing solicitor and a visiting professor
of group actions and disaster law at Nottingham Law School.
Women who otherwise might be excluded from the system are able
to pursue remedies through the civil justice system due to the
contingent fee. This is the means by which women can address the
problems of sexual harassment, rape, dangerous products, and hazardous
chemicals or toxic wastes that have caused injuries or deaths.
It appears that juries today are awarding women and men comparable
damages for comparable injuries, a significant change from .
. . prior years. Implicit in this perception. . . is that in
personal injury cases homemakers' services are being adequately
valued and compensated. This fact might be explained by a greater
availability of counsel in contingency-fee cases."
Marion Silber, Esq. in "Report of the New York Task Force
on Women in the Courts," XV Fordham Urban Law Journal 15,
81-2 (1986-87).
Thirty-four percent of women who are the head of a household
are below the poverty line.
U.S. Bureau of the Census, Statistical Abstract of the United
States: 1993 No. 740 (113th edition 1993).
Fifteen percent of Americans age 55 and older are below the
poverty line.
Id. at No. 743.
Access to justice would be impossible for these groups.
Contingent fees have been recognized for making it possible for
injury victims with strong cases but little economic resources
to proceed to trial in situations where the far more financially
well-heeled defendant has refused to settle. Refusal to negotiate
is a tactic of wealthy corporate defendants and is a risk that
corporate defendants involved in numerous lawsuits are sometimes
willing to take, but one which a personal injury plaintiff with
a single case can hardly ever afford.
The position of the plaintiffs' attorneys limits the strategic
bargaining power of the defendants in personal injury cases,
and restores some balance to pretrial negotiations."
Samuel R. Gross and Kent D. Syverud, "Getting to No: A
Study of Settlement Negotiations and the Selection of Cases
for Trial," 90 Michigan Law Review 319, 349 (1991).
"Even if the explicit policy objective were to reduce
frequency of suits, size of awards, and expenditure on litigation,
it is doubtful that limiting contingent fees is an efficient
means of achieving these results."
Patricia Munch Danzon, Rand Corporation, Institute for Civil
Justice, "Contingent Fees for Personal Injury Litigation,"
Summary at viii (R-2458-HCA, June 1980).
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