Page 60 - Impact: Collected Essays on Expanding Access to Justice

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and often an inability to work, most injured people cannot afford to pay an attorney up front . As one attorney told American Bar Association (“ABA”) Foundation researchers Stephen Daniels and Joanne Martin, “The simple truth is at least 95% of our clients could not afford to pay the lawyer and could not finance the lawsuit . They just couldn’t – at least 95% .”6
Moreover, unlike in England and some other nations,7 U .S . government-funded attorneys cannot represent the injured who seek compensation in the United States . That is why the third option – the contingency fee system - is so important . Under this system, an attorney agrees to take an injury case without any money up front . The attorney fronts all costs and gets paid only if successful . In return, the lawyer is entitled to a percentage of the money collected if the case succeeds . But if the case is lost, the lawyer is paid nothing . This type of representation has been an accepted (and even celebrated) arrangement for more than 150 years .8 Today “[m]any consumer organizations, public advocates, labor unions, and plaintiffs’ lawyers view the United States’ system of contingency fees as nothing less than the average citizen’s ‘key to the courthouse door,’ giving all aggrieved persons access to our system of justice without regard to their financial state .”9 But in recent years, lobbyists for big corporations, medical societies and the insurance industry have been pushing for government-imposed schedules and “caps” on both contingency fees and on overall damage awards, making it more difficult for victims to access the civil justice system .
A. “Tort reform” and Attacks on Justice
Laws that keep injured consumers from filing legitimate cases or obtaining compensation from the companies responsible for causing their injuries, are commonly known as “tort reform .” The “tort reform” movement has had devastating consequences for many vulnerable children and families . It has also weakened the ability of the civil justice system to protect us all from injury and disease, whether or not we ever go to court . That is because the prospect of civil liability deters manufacturers, builders, chemical companies, hospitals and other potential wrongdoers from repeating their negligent behavior and provides them with an economic incentive to make their practices safer .10 Tort actions also force disclosure of often extremely important internal information about unsafe products and practices, and force airing these disclosures through the media . Often, corporations that may have blocked regulatory laws have been forced to change harmful behavior because of lawsuits brought by individuals . Judges and jurors are free from the influence of corporate lobbyists who wine and dine legislators and regulators, and who use their influence to weaken safety laws .
6 Stephen Daniels & Joanne Martin, Plaintiffs’ Lawyers: Dealing with the Possible but Not Certain, 60 dePaul l. reV. 337, 348 (2011).
7 See discussion of British system in herbert M. Kritzer, Seven Dogged Myths Concerning Contingency Fees, 80 wash. u. l. Q. 739 (2002), available at http://ssrn.com/abstract=907863; Elihu Inselbuch, Contingent Fees and Tort Reform: A Reassessment and Reality Check, 64 law & conTemP. Probs. 175 (2001), available at http://scholarship. law.duke.edu/lcp/vol64/iss2/9/.
8 Adam Shajnfeld, A Critical Survey of the Law, Ethics, and Economics of Attorney Contingent Fee Arrangements, 54 n.y.l. sch. l. reV. 773, 775–776 (2009)), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1465164 (discussing the history of the contingent fee).
9 Inselbuch, supra note 7, at 175.
10 Conservative theorist Richard Posner has written that the tort system’s economic function is deterrence of non cost-justified accidents, and that tort law creates economic incentives for “allocation of resources to safety.” william m. landes & richard a. Posner, The economic sTrucTure of TorT law 312 (1987). See also meghan mulligan & emily goTTlieb, lifesaVers: cJ&d’s guide To lawsuiTs ThaT ProTecT us all (2002), available at https://centerjd.org/ content/study-lifesavers-cjds-guide-lawsuits-protect-us-all.
Impact: Collected Essays on Expanding Access to Justice