By CHRIS REGAN
The largest corporations in America know how to hire top legal talent, and they know how to use it. Recently, drug manufacturers who make dangerous drugs that caused a woman to literally lose her skin won immunity for that type of claim in the United States Supreme Court.
A whole slew of companies, including AT&T and American Express have granted themselves permission to violate the law with forced arbitration clauses and gifted lawyers from the best law schools in the country have been the key to their strategy. To get these lawyers, corporate America pays phenomenal hourly rates - sometimes seven, eight hundred dollars per hour or even more.
How can an ordinary American compete with that? The "right to an attorney" we are so used to hearing about on TV only applies in the case of fairly serious crimes.
When a person is victimized by a dangerous drug, nursing home abuse, consumer fraud, or insurance misconduct, she has to hire an attorney for herself - and how could an ordinary American, even a person with a good job, possibly afford the rates commanded by the top law firms that AEP or Quicken Loans or ManorCare hire for themselves? The answer is the contingent fee system.
The contingent fee system is the only thing that allows most Americans access to the kinds of lawyers and law firms that are capable of taking on the corporate behemoths that dominate America's politics and its courts. We have become so used to seeing "no fee if no recovery" that some people probably think that contingency fees are a marketing issue - but they aren't.
A contingent fee big key represents the "key to the courthouse" for ordinary Americans, because under a contingent fee arrangement, a major part of the risk of losing the case is shifted from the individual to the law firm, which is strong enough to bear that risk.
Under the contingent fee arrangement, instead of paying hourly rates for legal services that average Americans simply can't afford, the client pays nothing unless the case is won, and then pays a percentage of the recovery. This has important and positive effects. First, since only winning cases pay, lawyers who take contingent fee cases work hard to choose wisely and avoid "frivolous" cases.
Second, a person who might not be able to afford a lawyer at all, suddenly has the ability to get a lawyer who has the same level of experience, ability and financial backing that the big companies have (well, maybe at least keep it close on the financial backing - no one has the billions that America's insurance companies have on hand).
In other words, the contingent fee system "evens the odds" for the average person in court. Some people might think it's outrageous that corporate America's lawyers make seven, eight nine hundred dollars an hour, but make no mistake - those companies know what they are paying for. Without top-flight lawyers commanding those fees, drug makers could not hope to get away with pushing dangerous drugs for off-label uses; and nursing homes wouldn't dream of cutting corners on staff and allowing pressure sores to run rampant and residents to suffer; and mortgage lenders wouldn't be able to defraud borrowers and charge illegal fees defraud borrowers. The only thing for the average person to do when suffering an injury or being victimized by a company's greed is to arm themselves with the best legal representation they can get - and a contingent fee is the only way for them to do it.
You don't have to take my word for it - just ask corporate America. They hate the contingent fee because they believe only they should have access to good lawyers with their large litigation war chests. They're used to spending others into the ground, whether in politics, business, or the courtroom and they don't want anything to do with a "fair fight." So groups like ATRA and ALEC push contingent fee "reform." What they are planning is to lock the average person out of the courtroom by keeping him from getting a lawyer, just as they've locked courtroom doors with forced arbitration agreements in the past.
Don't let them. Unless you are a multi-millionaire or a huge company, when you hear the words "contingent fee," you are hearing about your ability to be represented on equal terms with the biggest and toughest companies in the United States and the world. The legal system in American is the best in the world, but even so, it is full of complexities and pitfalls, and without competent representation and financial backing, even the most just and true claim can founder if it is not skillfully handled. Protect your right to have a lawyer just as good as the banks, the utilities and the insurance companies get for themselves - protect the contingent fee.
Chris Regan is an attorney with the Wheeling firm Bordas & Bordas. This editorial appeared on the firm's blog.
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