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30 décembre, 2006 09:38 |
Commentary: Putting a Price on Plaintiffs Work
Joshua A. Winnick
The Connecticut Law Tribune
12-28-2006
I recently ran a television advertisement offering to represent car accident victims in exchange for a 15 percent contingency fee, which is more than 50 percent less than the traditional 33 percent contingent fee.
Most plaintiffs lawyers whose views on my fee have come to my attention are against it, presumably because they are against lawyers being paid less money for the work they do.
But by apparently reacting to my ad campaign solely though their own self-interest, they are missing an important implication for an issue the plaintiffs bar has battled for years: tort reform. One of the goals of my advertising campaign is to reform the tort system in the marketplace, without the need for legislation.
There are three aspects of the tort system that may be impacted by the ad campaign.
First, it takes a step toward freeing the tort system from the yoke of the 33 percent contingency fee -- the "one size fits all" fee that plaintiffs lawyers pretty much charge all accident victims. No one can explain where the 33 percent fee came from, why it is fair or why it makes economic sense to charge 33 percent, as opposed to a lesser amount, in every case.
That 33 percent fee is the starting point for many critics of the tort system, and it is widely seen by those critics as a windfall fee. Making a lower contingency fee the centerpiece of an ad campaign, albeit just for car accident victims, educates consumers about the standard fee and how a lower contingency fee can benefit them, by putting more of the net recovery in their pocket. My ad could lead to a new practice of negotiating fees on a case-by-case basis, taking into account whether liability is an issue or not, whether the claim is likely to settle without filing a lawsuit and whether substantial legal work will be required.
Second, my ads could introduce a new level of competition in the tort system. Up until now, competition among the plaintiffs bar has been based on a lawyer's ability to advertise and specialize; competition has not been based on a lawyers' ability to economize -- that is, provide the highest possible level of legal services at the lowest possible price. Yet virtually every other player in the tort system, including defense lawyers, has had to learn to meet this challenge. It is time for plaintiffs lawyers to follow suit.
Third, I hope my ad campaign will move the tort reform battle into the marketplace and out of the legislatures. To date, the tort reform battle has been waged by corporate interests in the legislatures for the avowed purpose of limiting victims' rights. It has been successful. The plaintiffs bar has been left to pay exorbitant lobbying fees in an attempt to oppose every tort reform proposal.
Now, true tort reform can occur in the marketplace by expanding victims' rights, not limiting them (my motto is "protecting your right to recover more"). Once plaintiffs lawyers bring fee choice and price competition to the marketplace, corporate America will not be able to justify the need to reform the tort system in the legislatures, and the plaintiffs bar will not have to "ante up" to oppose those efforts.
