Page 64 - Impact: Collected Essays on Expanding Access to Justice

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concluded that caps and attorney fee limits each “make it harder to retain counsel .”28 In states where both types of laws are in effect, the impact on victims with the most serious harm is even more severe, as attorneys simply cannot afford to front high litigation costs when the possible recoverable damages are so limited .
What’s more, noted the ABA Tort Trial and Insurance Practice Section, just as caps on non- economic damages have a disproportionate impact on women, children, minorities and the poor, so do attorney fee caps:
Elimination of, or significant constraints on, contingent fees would make legal assistance available only to those injured persons who are wealthy . The poor, the retired, African Americans, and women especially will suffer because they are often unable to afford hourly fees .29
The reason caps on fees have had this impact is obvious: costs . As the ABA Tort Trial and Insurance Practice Section report found, “imposing such limitations will likely preclude many medical malpractice actions from being filed because the prospective damages and resulting attorneys’ fees will not justify the expected time and expense associated with the litigation,”30 which often costs the attorney hundreds of thousands of dollars . Practically speaking, this means that “[o]nly those most grievously injured by the grossest medical negligence would likely be able to bring an effective action”31 and that, for many victims, limiting contingent fees “would have virtually the same effect as prohibiting them .”32 Indeed, such limitations would have the additional impact of driving attorneys out of the system altogether, particularly those specializing in costly and complex cases like medical malpractice:
If prices for lawyer services are fixed below what the market would yield, lawyers will have incentive to employ their services elsewhere, where their expertise and skill match the demand for them... . Limiting contingent fees will likely squeeze lawyers out of medical malpractice litigation, leaving some, perhaps many, victims with no representation .33
Indeed, the contingency fee system provides the injured with access not just to any lawyer, but to one who is capable of fighting an insurance company on a somewhat level playing field . As the ABA Tort Trial and Insurance Practice Section put it:
Limitations [on contingency fees] do not simply serve to ignore medical error and to eliminate medical malpractice victims from the system, they also would shift meritorious cases to less experienced (and therefore less expensive) lawyers . This could have the effect of reducing the likelihood or amount of recovery . Plaintiffs would not really be able to have the counsel of their choice and might have to settle for counsel unfamiliar with the procedural intricacies of the specialized area of practice .34
28 Steven Garber et al., Do Noneconomic Damages Caps and Attorney Fee Limits Reduce Access to Justice for Victims of Medical Negligence?, 6 J. emPirical legal sTud. 637 (2009).
29 Task force on conTingenT fees, supra note 24, at 32.
30 Id. at 20.
31 Id.
32 Id. at 8.
33 Id. at 29.
34 Id. at 33.
Impact: Collected Essays on Expanding Access to Justice