Elimination of Contingent Fees: A Threat to Democracy

Ric Davis

Contributor

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Contingent fees continue to stir great controversy especially in class action cases, mass torts, and medical malpractice lawsuits. The controversy most recently gained national attention when President Bush banned contingency fees in cases filed by the U.S Government. Federal judges have called contingent fees "grotesque" and plaintiffs claim they will be denied access to the courts without them. The debate remains lively among plaintiff and defense lawyers, academics, the judiciary, insurance companies, the Chamber of Commerce and the general public. Recent legislation and efforts to amend state constitutions to limit contingent fees have been successful. Is there a problem with contingent fees?

Do plaintiff's lawyers reap a windfall when enormous fees are awarded? What are the real risks undertaken by plaintiff's counsel and does the risk justify the reward? Are contingent fee awards out of whack? Who will benefit or suffer if they are restricted or eliminated?

These issues will be discussed at the ABA Convention in August in San Francisco. The contingent fee system has been in place for over 200 years and is a pillar of our system of justice. While the debate should be healthy, ultimately policy makers need to remember that without access to our judicial system, our system of justice which is synonymous with freedom and democracy will cease to exist.