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The Contingency Fee is the ‘Key to the Courthouse Door”

There has been alot of controversy, mainly stirred up by the insurance industry, the US Chamber of Commerce, oil companies and mega-corporations about the contingency fee–where people who  are not wealthy enough to afford to pay an attorney significant hourly rates whether they win, lose or draw can have their day in court. A contingency fee allows an average joe or jane to go to an attorney and get representation because the attorney’s  fee would only come out of any recovery (compensation) that the attorney obtains.  No recovery, no fee!  It is an important part of access to justice and insuring that the courthouse doors are open to all, not just the wealthy and powerful.

On May 18, 2010, a federal appeals court issued a ringing endorsement of the value of contingency fees in preserving access to justice.  The case is In re Abrams & Abrams, No. 09-1283, which challenged a district court judge’s refusal to honor a contingency fee agreement between the parties to a personal injury lawsuit.   In reversing the district court, the United States Court of Appeals for the Fourth Circuit wrote that contingency fees play a crucial role in our legal system because they “provide access to counsel for individuals who would otherwise have difficulty obtaining representation.”  Public Justice, along with the American Association for Justice, had filed an amici brief in the case urging the Court to rule as it did. 

Why I Care:
This decision is a slap in the face of all those who would seek to deny victims their right to access to justice.  The district court’s approach – if applied more broadly – could have drastically limited victims’ ability to obtain counsel in contingency fee cases within the Fourth Circuit.  But that would have been only the beginning.  If the district court’s contingency-fee-slashing approach had spread, it could have made it significantly more difficult for injury victims across America to obtain any compensation for their injuries, regardless of how badly the defendant may have acted. 

The Fourth Circuit’s landmark ruling not only stopped this potential trend in its tracks, but it presents, in stirring terms, a powerful endorsement of the oft-criticized contingency fee at a time that we need it most.  As everyone knows, the tort system — and, in particular, “greedy trial lawyers” — have been under assault in recent years, with conservative forces arguing that personal injury lawsuits, and the lawyers that bring them, are at the root of a host of evils.  The Fourth Circuit’s spirited defense of the contingency fee won’t halt this assault, but it does provide some dearly-needed ammunition in the fight to preserve access to justice.   Thanks to Leslie Brueckner of the Public Justice staff for the analysis in this article.  www.publicjustice.net

Go to www.walegaltimes.com  for more commentary