Page 63 - Impact: Collected Essays on Expanding Access to Justice

potential cases and clients . In constructing a litigation portfolio for his firm, the lawyer will reject weak cases and agree to handle stronger ones . This screening function is useful both for clients and, most likely, for the legal system at large .”20
Today half the states in this country have some type of law dealing with contingency fees .21 Some states simply allow for judicial review of fees while others cap fees at levels considered fair and ethical, i.e., one-third .22 However, many state laws covering contingency fees prevent recovery of “one-third” by using sliding scales, with the most severe limits on the highest award or the most serious cases . New York’s law is a good example . New York limits contingency fees in medical malpractice cases to 30 percent of the first $250,000, 25 percent of the second $250,000, 20 percent of the next $500,000, 15 percent of the next $250,000 and just 10 percent of anything over $1 .25 million .23 While such a fee may still seem like plenty of money, it is important to understand what high-value cases can cost to bring, and how attorneys must evaluate risk before taking any case on contingency .24 Indeed, the risk of losing the case completely is not the only risk faced by contingency fee lawyers:
[R]ecovery or no recovery is only one part of the uncertainty inherent in litigation . The other contingencies faced by the lawyer (and the client) include:
n uncertainty about the amount that will be recovered (and hence the fee the lawyer will receive);
n uncertainty about what it will cost, in both effort and expenses, to obtain the recovery; and
n uncertainty about how much time will pass before the recovery is obtained .25
High-stakes cases, like medical malpractice cases involving catastrophic injuries, can be extremely costly for the patient .26 Even Victor Schwartz, General Counsel of the American Tort Reform Association, has said that it is “rare or unusual” for a plaintiff lawyer to bring a frivolous malpractice suit because they are too expensive to bring .27 By allowing lawyers to distribute their risks among cases, the contingency fee system allows attorneys to survive professionally even if they lose some cases and are paid nothing . The more restrictions placed on the ability of a contingency fee attorney to recover their costs and fees in cases they win, the less likely they will risk taking any cases at all .
In 2009, researchers from RAND’s Institute for Civil Justice (ICJ) surveyed 965 plaintiffs’ attorneys who were presented with “hypothetical meritorious cases” and asked if they would take the case given that either noneconomic damages caps or attorney fee limits were in effect . ICJ
20 Id. at 8.
21 See full list in cenTer for JusTice & democracy, supra note 18, Appendix 1.
22 See, e.g., mich. cT. r. 8.121 (b).
23 N.Y. Jud. law § 474-a(2).
24 Task force on conTingenT fees, aba TorT Trial & insurance PracTice secTion, rePorT on conTingenT fees in medical malPracTice liTigaTion 8 (2004), available at http://apps.americanbar.org/tips/contingent/ MedMalReport092004DCW2.pdf.
25 Kritzer, supra note 7, at 748.
26 David Goguen, The Challenges in Winning a Medical Malpractice Lawsuit, alllaw, http://www.alllaw.com/articles/
nolo/medical-malpractice/challenges-winning-lawsuit.html (last visited Feb. 9, 2016).
27 Mark A. hofmann, White House Open to Medical Liability Changes, business insurance, http://www. businessinsurance.com/article/20110130/ISSuE01/301309974 (last visited Feb. 9, 2016).
Specific Areas for Reform: Tort Liability
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