Young Lawyers Section

IN DEFENSE OF THE CONTINGENT FEE

Far too often, I am amazed at the number of people who need and should have legal assistance but simply cannot financially afford it. I remain aghast at this situation, because I believe society has recognized the need for quality legal representation. Yet the legal system remains one of the few places in our society where the majority of the public remain "uninsured." As a result, even the majority of middle-class families have difficulty affording legal services.

The same families, however, are able to purchase health insurance to pay for doctors, liability insurance to cover their negligent acts, dental insurance to care for their teeth, and burial insurance to make certain they are properly laid to rest. Department stores even sell extended warranties to insure that the "brand new" things we buy can be replaced if they break. One can even purchase trip insurance to cover bad weather on vacation. Yet there is generally no such protection when a legal need arises - save contingency fees. As the contingent fee is increasingly under attack, I feel I must outline several points in its defense.

The contingency fee is often referred to as the poor man's key to the courthouse. By giving the attorney a percentage of any recovery even the poor can assert his rights in court with the aid of a lawyer. Since contingent fee agreements constitute the last bastian of hope for the injured and aggrieved working man and woman, it is a small wonder that they have been under constant attack by those who seek to exploit the public for their own benefit.

Certain organizations choose to use the media to mislead the public about the nature and use of contingent fees and the lawyers who accept this form of payment. This important issue concerning who ultimately has access to our justice system needs to be addressed in a meaningful, intelligent discussion and not in sound-bite or headline journalism.

The opponents of the contingent fee choose to tell half truths and to present plain falsehoods to win the public to their way of thinking. Others know the truth yet mistake the obvious in an effort to rid the working people of intelligent, sound and quality legal advice. The opponents of working people's rights need to find a villain. The corporate spin doctors know that the intangible court system or the true nature and purpose of laws would not show well on television or play well on radio. Therefore, they choose victim’s lawyers as their enemy. They have designed an attack on the contingent fee with the purpose of putting lawyers for victims in the uncomfortable position of justifying their fees and to attempt to drive a wedge between the lawyer and his client. It would seem that the actual goal of those who speak against the contingent fee is to take away the majority’s chance to "afford" quality representation that the contingency fee system was designed to advance.

Contingent fee practice has been an essential ingredient in the American system of justice for more than 100 years. It permits every citizen regardless of wealth or social standing, an opportunity to pursue a valid claim against even the most powerful corporation or individual. In large measure it has made our justice system the envy of the world. It breathes life into the democratic idea that no one is above the law and everyone must be accountable for his own behavior. Those who object most strenuously to the contingent fee practice and call for regulation of limits seldom consider the plight of the injured or aggrieved people who need such a fee agreement.

The contingent fee naysayers know all too well that to eliminate the contingent fee would only serve to eliminate good lawyers. In turn, corporations and the insurance conglomerates would then be absolutely free to manipulate the law and the justice system for their own selfish purposes and to keep those who seek the help and assistance of contingency fee lawyers in the same role they were when they first entered the justice system -- as victims.