Discussion»Questions»Legal» Should paying lawyers on a contingency basis be eliminated? If so, what should replace it to ensure poor people can seek legal remedies?
Paying on a contingency basis would seem to be the most fair. If you don't win your case, you don't pay the legal fee. What can happen is that you could be required is that you pay attorney out-of-pocket costs, i.e., the cost of obtaining medical reports, photocopies, etc.
I was just talking about this Shakespeare quote the other day. The fact is, the quote in context is in favor of lawyers as protectors of the public.
To answer your question ... no, it should not be eliminated. Generally, the only time it's used is against corporations or individuals who can afford an "army" of lawyers. There's no way the average person could afford to continue a legal fight against such resources. Plus, if no lawyers are willing to take a specific case on a contingency basis - there's a good chance the suit can't win.
I was vaguely aware that the "kill the lawyers" quote is spoken by a character who is not meant to be take seriously. But it seemed germane to the question...
With respect to contingency fees, my main problem with them is they set a "floor" on what kinds of cases lawyers will take. So people who have been harmed, but whose possible recompense is too small to induce a lawyer to take the case end up being denied justice. However, I admit I don't have a good alternative to propose.
I'd think (generally) if the reward is too small for a lawyer to take the case, it would fall in "small claims court" - where lawyers are not allowed to represent clients, anyway.
That's probably true in many cases. But I have read of some instances (e.g. where a car is damaged beyond the limits of small claims court) where it's difficult to find a lawyer to pursue the case because the lawyer's "cut" will be too small to make it worth the time.
No win, no fee is the only secure system by which those who can't afford to pay lawyers have a chance of justice.
We also have a legal aid system here in Australia, but it is so underfunded that very few of those who need it get the chance to use it. I'd have to look up how they make their choices, but I suspect they choose the test cases which the no-win-no-fee lawyers would avoid.
The Shakespeare quote is best not taken out of context. A writer's words do not necessarily reflect his opinion or some meta-truth; rather, they reflect the character who speaks them within the text.
While I'm not all that well-versed in Shakespeare, I have read the "kill the lawyers" quote was meant to be satire. But some people like to quote it, so I threw it into the question to see what the reaction would be. I am pleased to see several 'Muggers are aware of the quote's context.
In the USA (which is the relevant discussion here) contingency fees do not exist for the poor. They exist for all of the reasons commissioned pay exists. Collaterally, the poor are able to bring certain civil suits without paying a huge retainer.
Helping the poor is not the intended purpose of contingency fees. That fee arrangement is the same for everyone, but of course, for some it would not be possible to file but for that kind of fee arrangement.
There are no retainers where contingency fees are stipulated for representation in a law suit. If you are not in America, you can expect to not know or have a great understanding of our law.
This post was edited by Thriftymaid at December 20, 2019 10:34 PM MST
OK, I reread your previous reply and I see where I misunderstood it. Now I get what you were trying to convey.
I do understand how contingency fees (versus fee-for-service) work, and I do think we might be able to devise a more equitable system (even if I'm not smart enough to have figured out (yet) what that alternative might be).
Equity is not part of setting up the fee system of a professional. A lawyer has several ways to charge for his services. Certain kinds of cases most likely will use a particular fee arrangement but there is no rule about it. We can bill a lump sum for a service. We can bill hourly for our time, as well as for our paralegals' time. We can simply take a percentage of any settlement or judicial award. Business is not obliged to price its products in a way that everyone can afford them. Attorney fee arrangements is not something that "we" need to be concerned with. If you need an attorney call around and find one that will work with you within the parameters of your resources. That's what you do when you buy a car too.
The problem with your claim is that attorneys are (sometimes) more like fire fighters or trauma surgeons than cars.
Yes, there are scenarios where the decision whether or not to hire an attorney largely resembles competitive market principles.
But if your house is on fire, or you've just been in a car crash, or you've just been arrested, you are in no position to shop for fire fighters, a trauma surgeon, or an attorney. You need one in a timely manner, you need one to be competent, and you need one regardless of your financial circumstances.
Hence, we have taxpayer-funded fire departments, we cross-subsidize medical care so hospitals will (usually) perform life-saving trauma surgery even to uninsured people, and we provide public defenders to those who have been arrested (in some circumstances).
In each of the above scenarios, we sacrifice some measure of freedom and some economic efficiency because it produces a public good.
Similarly, I think there may be some way to at least partially "level the playing field" when it comes to access to the courts for civil litigation that would work better than the current contingency fee system, which is largely the only way poor people can currently bring civil complaints.
This post was edited by SaltyPebble at December 21, 2019 7:46 AM MST
If you ever live in America I'll talk about my profession some more with you. For now, bye. Unless you want to pay my hourly rate.
This post was edited by Thriftymaid at December 21, 2019 3:39 PM MST
Walt O'Reagun 