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Contingent Fee System

It is often said with criticism that personal injury cases are taken on a contingent fee basis. The implication is that the client, and for that matter the lawyer, have nothing to lose. This is an oversimplification and misleading, as often happens in a debate on the merits of the civil justice system.

The plain fact is that the typical personal injury plaintiff cannot afford to finance his case, including paying for a lawyer and the expenses in pursuing the case. Hence, the contingent fee system has been called – by those in favor of it – “the poor man’s keys to the courthouse.” Thank god it is so. Can you imagine someone disabled having to pay an hourly rate?

What of the lawyer? Does a contingent fee system permit him/her to take advantage of the system. The criticism leveled at plaintiff’s attorneys is that they are often bringing frivolous cases. The reality is that frivolous cases do not pay. What sensible, to say nothing of cost-conscious, attorney would pursue a frivolous case on a contingent fee basis? The attorney is left to advance costs while working for nothing.

To be sure, abuses can occur. But it seems that they do not occur where frivolous cases are concerned. In my work as Chairman of the Contingent Fee Committee of the Massachusetts Academy of Trial Attorneys I do recall a bus accident in Texas where several school children were killed and tens of millions of dollars were paid to the plaintiff’s firm. It was observed that the attorneys made in that case several thousand dollars an hour. There are safeguards in that situation, primarily from the state’s Board of Overseers. Any fair-minded plaintiff’s attorney is troubled by that. However, in the vast vast majority of plaintiff cases, the consumer/client
stands to gain without having the pressure of an oppressive hourly rate.

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