In This Section
Women, The Elderly, The Middle Class, and the Contingency Fee
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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