21-09-2005 20:01									#1
	Contingency payment for lawsuits: yes or no? Support Apolyton, buy Galactic Civilizations: Deluxe Edition

Contingency payment means you only need to pay your lawyer or team of lawyers after winning a civil case as the plaintiff.

We don't have contingency payment locally, but a legal reform committee is proposing some form if it.

The plus side is, some poor sod in the "sandwich class" (not poor enough to apply for legal aid and not rich enough to afford lawyers) can press charges against some perceived wrong, e.g. suing your boss for wrongful dismissal. The minus side is contingency payment can easily open the floodgate for frivolous lawsuits.

Is contingency payment a good or bad thing? How do you minimise the number of frivolous lawsuits while maximise the benefits?

	21-09-2005 20:17									#2
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I'm not a fan of contingency payments b/c of the frivolous lawsuit issue.

If CP were to be implemented I would prefer the % be kept very low.

When I was in school we were told we would have clients that want to fight on "principle". Tell them your hourly rate and see how serious they are about the principle.

	21-09-2005 20:26									#3
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Funny how every job can be outsourced except this one.

	21-09-2005 20:51									#4
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Actually, IIRC I had heard something earlier about lawyers being outsourced to India...exactly how this works, I'm not so sure...

	21-09-2005 21:06									#5
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We can't just ship all lawyers to India?

	21-09-2005 21:10									#6
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quote: Originally posted by alva We can't just ship all lawyers to India?

Come now...be nice. We do need lawyers in our society. Otherwise, who would be the pariahs and butt of jokes?

	21-09-2005 21:15									#7
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quote: Originally posted by Wezil When I was in school we were told we would have clients that want to fight on "principle". Tell them your hourly rate and see how serious they are about the principle.

Actually my version of this in law school was slightly different. If they wanted to "fighton principle" and the "money doesn't matter", you request a moderate retainer and then progerss bill

	21-09-2005 21:30									#8
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Contingency payments - YES

It's really the only way that the poor can get legal representation when a big company has harmed them. Without the contingency payments, they'd have to suck it up.

Because of the US's lack of national health insurance, it becomes more of an issue in the US (poor people need to get their health bills paid), but it also is important in other aspects not involving the health of the person.

	21-09-2005 21:31									#9
	Re: Contingency payment for lawsuits: yes or no? Support Apolyton, buy Call to Power 2

quote: Originally posted by Urban Ranger Is contingency payment a good or bad thing? How do you minimise the number of frivolous lawsuits while maximise the benefits?

Like most options it has good and bad points and interestingly the good and the bad comes within the same attribute.

This makes seeking civil recourse easier. Period. and there is much good and much bad in that.


In Canadian jurisdictions with contingency arrangements, we have not seen a flurry of frivlous lawsuits IMHO. If recovery is zero, then the lawyer gets zero and who wants to work for free ?? But this Canadian experience might differ from say a US one because:

1. Canada has reasonable limits on damage awards meaning there is much less chance of the super jackpot. Plus juries are much less involved . . . you can still get odd decisions from judges but not that many

2. Most provinces have pretty strong rules that force an unsuccessful plaintiff to pay the costs of a successful defendent. So an unsucessful lawyer would need to eat that or try to get it back from a client. I know ofa couple of "plaintiff firms" that would not TOUCH medical malpractice cases on contingency for instance because of the high costs of preparing a case ( and the fact that the medical association were famous for NEVER offering a settlement just to get rid of a case).


Bottom line is that silly lawsuits only work when people accomodate them with settlements or you have judges or juries that give them credence. Rules on costs also make frivolous lawsuits less likely.

The tradeoff though with any rule that makes a plaintiff pay for his unsuccessful claim , is that there will be some valid claims out there where people will not bring them forth because they cannot afford to lose.


Its really a balance. Access to civil justice cuts both ways . . . . If you give people without the resources the ability to mount a lawsuit, it will assist all forms of claims. Perhaps frivolous lawsuits are a necessary price to pay for greater access to justice

	21-09-2005 21:33									#10
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Well said.

	21-09-2005 21:34									#11
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quote: Its really a balance. Access to civil justice cuts both ways . . . . If you give people without the resources the ability to mount a lawsuit, it will assist all forms of claims. Perhaps frivolous lawsuits are a necessary price to pay for greater access to justice

Great post, but in addition, I'd say it may indeed be far greater than the alternative (unless you are che ), which is an overbearing government which makes people whole or a system where the poor can't assert their rights while the rich can.

	22-09-2005 19:01									#12
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quote: Originally posted by Flubber 2. Most provinces have pretty strong rules that force an unsuccessful plaintiff to pay the costs of a successful defendent.

That looks like a good balancing factor.

	22-09-2005 19:55									#13
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quote: Originally posted by Urban Ranger That looks like a good balancing factor.

Like most things in a balance, yes and no. The contingency fee arrangement means that a person can get a lawyer without having the funds to pay, but if the merits are uncertain, the plaintiff has to assess how much they want to risk and some valid claims are not brought forth because of this risk.

As a defense lawyer facing what looked to be a frivolous lawsuit and a plaintiff with no funds, you would also request that the plaintiff post "security for costs"-- Rules that say an unsuccessful plaintiff pays are ineffective if they have nothing. The problem with this though is it again creates a barrier to civil justice for the poor.

Anything you do will always be a balance between

1. The desire that everyone can avail themselves of the civil justice system

2. The desire to have a system where the successful party (even if it is a defendent) is kept whole. It just seems wrong somehow that people can bring crazy lawsuits for no reason and face no negative consequence from losing

OH and I still think that lower damage awards in Canada vs. the US makes a big difference as well. Multi-million awards means its worthwhile for a lawyer to take a chance on one hundred seemingly crazy cases. If only one "hits"they can do quite well. In Canada, they know even if they unexpectedly win on liability, lottery-style payouts are not the norm-- This influences settlement behavior as well. With no fear of the mega mega payout, the defense lawyers are less likely to pay 'go away' money.

	22-09-2005 20:51									#14
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Contingency fees, yes

About 95+% of the frivolous stuff which comes through my courtrooms isn't caused by the contingency-fee plaintiff's attorney but rather by the hourly-fee defense attorney.

It doesn't take a genius to figure out whose going to generate the most BS: some attorney who gets paid only for a win or some attorney who gets paid for filing something, anything which generates "billable hours."

And what a lot of people don't realize is that, in some situations, you have to file a lawsuit in order to determine if you have a claim.

For example, say you've undergone surgery which has gone horribly wrong? Is it the result of malpractice or just a case of bad luck? You can't tell without your medical records. If you go to your doctor and ask for your file because you thinking of suing, you're not going to get those records. But, if you sue, your lawyer can demand them as part of "discovery." Stats show that, once these records as turned over, 50% of medical malpractice actions are voluntarily dismiss because there's been no medical negligence.

Q: For those who want to get rid of contingency-fee lawyers, what do your replace them with. Some $300/hr attorney that the common person cannot afford??

	22-09-2005 21:21									#15
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quote: Originally posted by Zkribbler About 95+% of the frivolous stuff which comes through my courtrooms isn't caused by the contingency-fee plaintiff's attorney but rather by the hourly-fee defense attorney.

I have seen that as well. The claim might have some merits for either side but a big defense firm might just try to bury you in paper with motion after motion. The goal for some defense lawyers is just to delay and make prosecuting the claim as difficult as possible. Delaying a loss is often seen as a victory in and of itself

	22-09-2005 21:25									#16
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Oh and Zkribbler

just curious but you said "your courtroom"-- Do you work as a judge, or court staff?? I always figured those folks would see a lot of interesting stuff

I don't go to court and the stories are much non existent. You can't get much play out of the "time I negotiated a doubling of the liability cap" for instance

	22-09-2005 21:43									#17
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quote: Originally posted by Imran Siddiqui quote: Its really a balance. Access to civil justice cuts both ways . . . . If you give people without the resources the ability to mount a lawsuit, it will assist all forms of claims. Perhaps frivolous lawsuits are a necessary price to pay for greater access to justice Great post, but in addition, I'd say it may indeed be far greater than the alternative (unless you are che ), which is an overbearing government which makes people whole or a system where the poor can't assert their rights while the rich can.

Hey!

	22-09-2005 22:02									#18
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quote: Originally posted by Flubber The goal for some defense lawyers is just to delay and make prosecuting the claim as difficult as possible. Delaying a loss is often seen as a victory in and of itself

*cough*

	22-09-2005 22:11									#19
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quote: Originally posted by Wezil *cough*

Is that your job Wezil??

My job is to create onerous and tight contracts that avoid going near courts in the first place

	22-09-2005 22:25									#20
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quote: Originally posted by Flubber Do you work as a judge, or court staff??

Court staff.

quote: I always figured those folks would see a lot of interesting stuff

Like most jobs, most of mine is boring routine although one of mine friends has a too-interesting thing come up in her courtroom.

It was a sexual harassment suit. Plaintiff was deposed for 12 days. For 11 of those days, she testified as to how foul, horrible, vile and awful it was. But on the remaining day, she testified as to how funny it all was and how she really loved it and encouraged it. Defendant brought a summary judgment motion to have the case dismissed because the conduct was concentual. Plaintiff opposed by bringing in a declaration for her psychiatrist, who revealed that the plaintiff had multiple personalities. On that twelfth day "Brady" had showed up.

What do you do with a case like that??? Luckily, it settled before the court had a chance to rule.

	22-09-2005 22:31									#21
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quote: Originally posted by Flubber Is that your job Wezil?? My job is to create onerous and tight contracts that avoid going near courts in the first place

Off for lunch. Particulars when I return.

	22-09-2005 22:56									#22
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quote: Originally posted by Zkribbler Like most jobs, most of mine is boring routine

True although my infrequent visits to court were something I found fascinating.

But I guess after the 10th time, even a murder trial gets routine and for sure the 50,000th assault or possession case is routine.

And alot of the civil stuff gets dead boring. Most construction disputes for instance involve tens of thousands of documents and can take months of actual IN COURT time

	22-09-2005 23:25									#23
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Our firm specializes in representing trucking firms facing charges under various statutes and associated regulations such as Dangerous Goods, Truck Transportation Act, Fuel tax Act, etc.

Under the Cdn. CVOR regime, CVOR points against an operator's record will affect their insurance premiums, potential clients (high violators are excluded from many contracts) and ultimately, for the worst offenders, their ability to carry cargo for hire.

Delay for us is very good. Crown delays are best as Askov will apply if matters take too long. Even defence delays are good as CVOR points apply for two years from the date of OFFENCE (not conviction). I've seen convictions register then disappear almost immediately...

As to court.... For me, I average 3 days a week at court (all five this week - 3 trials, 2 admin) and this is just the way I like it. I prefer the thrust and parry of trials over the monotony of office chores. When I'm in the office I get bored and end up posting on Apolyton...