Public Health Law Map - Beta 5 - Medical and Public Health Law Site

the fee from the defendant—that is, add the fee to the judgment awarded. Plaintiffs
must prove the economic worth of their injuries. In a simple case, this might be the
extra medical bills and lost wages incurred as a result of the negligence. If these total
$20,000 and there are no other alleged injuries, then the jury will be limited to
awarding $20,000. Approximately half of that will go to paying the attorney and the
costs of the litigation. Therefore, the purpose of tort law—to make the plaintiff
“whole” by compensating him or her for the losses due to the defendant’s
negligence—is not fulfilled. The plaintiff is able to recover 50% of the actual losses
because the defendant does not have to pay the plaintiff’s attorney’s fees and costs of
court. The problem of recovering litigation costs drives many of the claims for
imaginative damages.
Contingent fees create an incentive to exaggerate the plaintiff’s damages, and they
encourage the filing and prosecution of cases with large damages but little
negligence. Take the case of parents who come to the attorney’s office with a brain-
damaged child requiring custodial care. The potential recovery is so large that it is
worth searching for any possible negligence to justify a lawsuit. Conversely,
contingent fees deny access to the courts to plaintiffs with meritorious claims but low
damages. Every plaintiff’s medical malpractice lawyer has turned away cases in
which the patient was injured by clear, even gross, negligence, but the potential
recovery was too small to cover the cost of litigation. In general, if the provable
damages are not in excess of $100,000, it does not make economic sense for an
attorney to take the case.
In both law and medicine, it is ethically questionable to stop providing services to a
client because the client cannot afford the fee. In criminal cases, the courts make it
nearly impossible for an attorney to withdraw once representation has begun. As a
result, criminal attorneys demand fees, which are nonrefundable, in advance. (There
is also the problem of collecting from the incarcerated client.) In civil lawsuits, it is
difficult to withdraw after the lawsuit has been filed. Ideally, every case will be
investigated before a lawsuit has been filed. The problem is that the defense often
refuses to cooperate in the investigation of a case. The plaintiff’s attorney must
decide whether to sue based on limited information. This encourages the filing of a
case with large damages in the hopes that liability can be found as the case proceeds.
For an attorney, this is the most ethically responsible step. Refusing to represent the
client because the defense makes it difficult to investigate the case would
compromise the client’s rights.
Many state legislatures are capping the fees of plaintiffs’ attorneys, [Birnholz RM.
The validity and propriety of contingent fee controls. UCLA Law Rev. 1990;37:949.]
typically in two ways: sliding scale caps and limits on the percentage that the
attorney may charge. In the sliding scale system, the fees that the attorney may
charge for small cases—those under $100,000—are unaffected. Using the previous
example, in a case settled before trial, the attorney would get 40% ($40,000) and be
reimbursed for expenses (perhaps $5,000). As the award increases, the allowable fee,
as a percentage of the award, is diminished, falling to perhaps 10% of the proceeds
over $1 million. This type of cap does not affect the initial decision to accept the
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