Think You Know Lawyers? Think Again

Study finds vaulable role as gate keepers

“Get burned from spilling a cup of unconscionably overheated coffee at a restaurant? Find a frog in your can of garbanzo beans? Well, stop on by, pardner, and let’s see if we can’t sue them to smithereens!”

That common image of come-one, come-all contingency fee lawyers (who charge no fee unless they get you some money) is flat-out wrong, says Herbert Kritzer, professor of political science and law.

Kritzer recently surveyed about 500 Wisconsin lawyers who handle contingency fee cases, and here’s what he found: As a whole, contingent fee lawyers are not ambulance chasers who spew capricious cases into the civil justice system and clog up the courts.

On the contrary, they act as gatekeepers, rejecting more contingency fee cases than they accept. Overall, Kritzer discovered, lawyers accepted contingency fee cases from an average of 46 percent of the potential clients who contacted them.

“It is the nature of the contingency fee – the fact that it is a percentage of a settlement or award – means that lawyers’ economic self-interest will play a powerful role in their gatekeeping function,” says Kritzer.

In other words, most lawyers know it literally doesn’t pay to invest time in cases that lack merit, have a poor chance of winning or will not likely yield a fee at least equal to hourly rate cases.

Lawyers’ selectivity varied with the number of contacts they receive from potential contingency fee clients: the greater the volume of contacts per month, the greater the selectivity. Even the least-selective sub-group of lawyers surveyed accept only 52 percent, while the most-selective accept just 10 percent.

In addition to gatekeeping data, Kritzer’s study also yielded information on where contingency fee lawyers get the cases they accept, what kind of client relationship they develop and how much fee income those cases generate.

There are alternatives to lawyers as gatekeeping mechanisms. “One is to ban the contingency fee and require that litigants bear the cost of seeking recompense,” says Kritzer. “This shifts the risk from the lawyer to the litigant and gives rise to legal insurance, which those at the bottom of the economic ladder couldn’t afford.”

A second alternative is called fee-shifting, where the loser of a lawsuit is required to pay the winner’s costs. “That works against the middle class,” he says, “which has to choose between foregoing compensation or putting at risk other resources such as savings.”

In contrast, says Kritzer, contingency fee lawyers offer all economic classes a low-risk road to recompense if they can squeeze through one of those lawyers’ gates.

The prominent presence of that “if” belies the stereotype of contingency fee lawyers. Indeed, as a group, these lawyers seem to be doing what lawyer and public official Elihu Root once enjoined: “About half the practice of the decent lawyer consists in telling would-be clients that they are damned fools and should stop.”