We are flexible in considering a variety of hourly and contingent fee arrangements, depending upon the difficulty and complexity of cases, the risks involved, and the ability of the client to pay fees and expenses as we go along. 

Most clients in personal injury and wrongful death cases prefer to hire us on a contingent fee basis. This means that our fee is calculated as a predetermined percentage of the amount we recover for the client through settlement or trial.

The percentage varies from case to case, but generally is 33 1/3% in most personal injury cases, and 40% in cases of products liability and medical malpractice, due to the increased expense, risk, complexity and difficulty of those cases. We typically advance the out-of-pocket expenses of litigation, and are reimbursed for those upon settlement in addition to the fee.  

If the client is willing and able to pay all litigation expenses as the case progresses, the fee percentage may be adjusted accordingly.  Occasionally we have handled a tort or insurance case on a purely hourly fee basis, with the client paying an adequate retainer for fees and expenses and replenishing it as the case progresses.  However, few injury victims are able to do that.

With the passage of a fee-shifting "offer of judgment" law in Georgia, we are exploring strategies for shifting a portion of fees and expenses to the opposing party.  While expressed in neutral terms, the new law was primarily intended to hurt injury victims (who are unable to spread the risk of a fee award if they guess wrong about what a jury will do) and to help insurance companies and large corporations (which can spread the risk of fee awards over thousands of cases). However, it is a new law that both sides tend to view with skepticism.

Why do some people criticize contingent fees?

The contingent fee is perhaps the one device in law that gives injured people, no matter what their financial means, a fighting chance in the courtroom against giant corporations and insurance companies. Small wonder, then, that it has been under almost constant attack for 100 years by corporations and insurance companies that want to deprive average citizens of access to the courts.

It's no secret that those who want to avoid accountability for their negligent and reckless acts are pushing for special protections in state legislatures and Congress. But wrongdoers and their apologists have initiated a less obvious line of attack on the average American citizen an attack that levels its sights not on injury victims but an easier target: the lawyers who represent them.

This insidious assault is only on the lawyers representing individuals and families.  Insurance companies and large corporations would still be able to hire top legal talent, with no limitations, while average American citizens would no longer have such access to adequate representation.  Whether the wrongdoer seeks to limit liability or to interfere with fee agreements, its goal remains the same: to deny access to justice to the tens of thousands of Americans who are injured each year due to another's wrongful acts.

Seldom is heard a discouraging word from the thousands of victims who were able to retain, on a contingency basis, quality lawyers who proved a match and more for corporate counsel. In short, the attacks on the contingent fee system come from the tortfeasors who have to compensate their victims, not from victims who have to pay their lawyers. And it is a disingenuous argument. The tortfeasors never seek limits on their own ability to pay lawyers or access a defense. They seek only to limit victims. Their mission is to make the already uneven playing field even more uneven.

Imagine the government taking the slingshot away from David and giving it to Goliath. Now you understand "tort reform."

Were it not for the contingent fee, people of the middle class or of low economic means would not be able to have their day in court, a constitutional right which corporations and insurance companies fight hard to eliminate.

Nearly 50 years ago, U.S. Supreme Court Chief Justice Harlan Stone spoke for all those who have the honor to speak out for the innocent injured:

"The most elementary conceptions of justice and public policy require that the wrongdoer shall bear the risk of the uncertainty which his own wrong has created." Bigelow v. RKO Radio Pictures, 66 S. Ct. 574, 580 (1946).

More than 30 years ago, Judge Michael A. Musmanno said it best:

"If it were not for contingent fees, indigent victims of tortious accidents would be subject to the unbridled, self-willed partisanship of their tortfeasors. The person who has, without fault on his part, been injured and who, because of his injury, is unable to work, and has a large family to support, and has no money to engage a lawyer, would be at the mercy of the person who disabled him because, being in a superior economic position, the injuring person could force on his victim, desperately in need of money to keep the candle of life burning in himself and his dependent ones, a wholly unconscionably meager sum in settlement, or even refuse to pay him anything at all. Any society, and especially a democratic one, worthy of respect in the spectrum of civilization, should never tolerate such a victimization of the weak by the mighty. Richette v. Solomon, 187 A.2d 910, 919 (Pa. 1963).

Over the years, the contingent fee has been maligned by special interests that oppose access to justice for average citizens. It is no accident that the contingent fee is a prime target of groups seeking to limit the rights of injured victims.

There is no more effective way to undermine our jury system. Eliminating the contingent fee would effectively strip the "keys to the courthouse" from the average citizen.

Contingency Fees Do Not Increase Litigation

There is no litigation explosion generally. And the litigation that accounts for caseload increases when increases have occurred is not litigation brought by plaintiffs using contingent fees.

Personal injury lawsuits do not "clog" the courts. The real increase in litigation has been from businesses suing businesses, not consumers seeking compensation through personal injury litigation.

Businesses suing businesses in contract disputes comprised nearly half of all federal court cases filed between 1985 and 1991. Milo Geyelin, "Suits by Firms Exceed Those by Individuals," Wall Street Journal, December 3, 1993, at B1.

Not only do businesses suing businesses comprise the majority of cases filed in court, but this category also experiences the greatest increase in the number of suits filed year after year.Contract filings in federal courts increased by 232 percent between 1960 and 1988, and by 1988 were the largest category of civil cases in the federal courts. Marc Galanter and Joel Rogers, Institute for Legal Studies, University of Wisconsin, "A Transformation of American Business Disputing? Some Preliminary Observations," working paper #DPRP 10-3 (April 1991).

In state courts, contract disputes accounted for 14 percent of all cases filed in 1991, second only to domestic relations cases, which accounted for 33 percent of the cases filed. "Composition of Civil Caseload Filings: General Jurisdiction Trial Courts," National Center for State Courts (1993), The Conference of Chief Justices Statement on S. 687, The Product Liability Fairness Act of 1993, Submitted to the United States Senate Committee on Commerce, Science, and Transportation Consumer Subcommittee, September 23, 1993, at 5.

While contract cases utilize hourly billing, most tort cases utilize the contingent fee. According to statistics, there certainly is not an explosion of personal injury cases in state courts.According to the National Center for State Courts, in 1992 only 9 percent of the new cases filed in state courts were tort cases of any kind. Based on data from 27 states representing 61% of total U.S. population. "Composition of Civil Caseload Filings: General Jurisdiction Trial Courts," National Center for State Courts (1993), The Conference of Chief Justices Statement on S. 687, The Product Liability Fairness Act of 1993, Submitted to the United States Senate Committee on the Judiciary Courts and Administrative Practice Subcommittee, March 15, 1994, at 5.

Would Fees Be More Reasonable to Plaintiffs Under an Hourly Agreement?

The contingent fee helps protect the integrity of the civil justice system. An hourly fee arrangement can encourage delay, inefficiency, and unnecessary action. A contingent fee is an added inducement for a lawyer to be efficient and expeditious.

"There does not appear to be any gross discrepancy between the effective hourly fee earned by plaintiff lawyers under the contingent fee arrangement and the normal hourly fee charged by defense attorneys in medical malpractice cases on the average." Stephen K. Dietz, C. Bruce Baird, and Lawrence Berul, "The Medical Malpractice Legal System," Report of the Secretary's Commission on Medical Malpractice, U.S. Department of Health, Education and Welfare 87, 154 (January 16, 1973).

The American Bar Association's Special Committee on the Tort Liability System expressed concern about allegations that contingent fees encourage lawsuits.

"We take it that any litigating lawyer, whatever his or her fee arrangement, wants to win, but it is not at all apparent that the incentives to win are unhealthily greater for lawyers working on contingency fees than for those employed at fixed hourly rates." Sue Brown, "Do Contingency Fees Really Cause Malpractice Suits?" Medical Economics, October 21, 1985, at 55.

"What little empirical evidence is available confirms that, averaging over cases won and lost, the effective hourly earnings of attorneys paid on a contingent basis are similar to the hourly earnings of defense attorneys paid by the hour." Patricia Munch Danzon, Rand Corporation, Institute for Civil Justice, "Contingent Fees for Personal Injury Litigation," Summary at viii (R-2458-HCA, June 1980).

Even as the contingent fee is being condemned by corporate America, those same corporations as clients are becoming disgruntled with the hourly billing rate which has been the bedrock of their own lawyer-client relationship for decades."Clients are talking about fixed fees, capped fees, fee estimates, contingent fees, and discounts." Blane R. Prescott, a partner with Hildebrandt, a management consulting company, based in Somerville, N.J. in Margot Slade, "Billable Hour, a Centerpiece of American Law, Is Fading," New York Times, October 22, 1993, at A1 (emphasis added).

Even in a corporate setting, the contingent fee offers the client the opportunity to shift the risk to the law firm."Law firms are also bad at predicting the likelihood of a bad outcome, especially in litigation. Relying on a contingent fee, in which the lawyers profit from a good outcome and share in a bad one, shifts that risk, too." Id.

In fact, Zoe Baird, general counsel for Aetna Life & Casualty Company, had this to say at the 1992 annual meeting of the American Bar Association held in San Francisco:

"As the company's lawyers, we have to look not only at the service and quality of law firms with which we do business, but also at the linkage between price and performance. Hourly billing provides no such linkage. It is an accounting device. There is no credible economic theory underlying the hourly billing method, and for that reason, we no longer accept it as the sole, or even predominant, method of pricing legal services.

"In fact, hourly billing pushes economic incentives in the wrong direction -- weakening rather than strengthening the bonds between performance and pay.

"It also pushes law firms to a near-obsession with billable hours. And this in turn supports the great unwritten rule of all law practices: that those who want to get ahead must tally up the hours. This is first and foremost dubious economics. The number of hours spent on a matter is no measure of productivity. Productivity is better measured by results, including both outcome and time-frame. Linking the economic structure of your profession to true measures of productivity & nbsp--value -- will benefit both the firms and the client." Sherry Matteucci, "What the Heck Is `Value Billing' Anyway?" Montana Lawyer, November 1992, at 2.

One of the largest property casualty insurers in the United States, Aetna, has recently stated, ". . . any abuses of the contingency fee system are best addressed through marketplace solutions (full disclosure to potential clients of the hours likely to be spent on the case, probability of success, probable recovery, and alternative fee arrangements) and when necessary, reduction of excessive fees by the courts. We do not support regulating fees."  Judith W. Pendell, Vice President, Law and Regulatory Affairs, Aetna, New York Times, March 11, 1994.

Contingency Fees are Regulated

The hue and cry about contingent fees is a false one. The suggestion is that somehow the attorney is "ripping off" the unfortunate, such as children, the elderly, or the severely injured.

The facts, however, are that in virtually every instance when a minor is injured, a court must approve an attorney's fee. This is true when there is a wrongful death or when an individual who has been severely injured needs a guardian and in many other situations.

Further, a court always possesses the power to review attorneys' fees in personal injury cases, essentially all jurisdictions have fee dispute procedures, and attorneys are urged to "exercise sound judgment in using a percentage in the contingent fee contract that is commensurate with the risk, cost, and effort required."

Women, The Elderly, The Middle Class, and the Contingency Fee

The contingent fee puts the middle class on a more equal footing with the wealthy. Eliminating the contingent fee would price the middle class out of the market for justice and would especially disadvantage women and the elderly.

Without the contingent fee system, none but the wealthy and powerful would be able to bear the costs associated with pursuing a claim and receiving just compensation. Worse still, often only those whose negligent conduct causes injury would be able to afford quality legal representation.

The contingent fee system allows access to the courts for middle-class families. This is one of the distinct differences between the United States and countries elsewhere in the world. It is a hallmark of our democratic system.

Interestingly, at a time when even [former Vice President Dan Quayle] has attacked the contingency fee, many in England and elsewhere are discovering that it has its advantages. Not only does it provide access to justice for many victims, it also imposes on attorneys a powerful incentive to perform well." Michael Napier, "For Many, English Rule Impedes Access to Justice," Wall Street Journal, September 24, 1992, at A17. (Mr. Napier is a practicing solicitor and a visiting professor of group actions and disaster law at Nottingham Law School.

Women who otherwise might be excluded from the system are able to pursue remedies through the civil justice system due to the contingent fee. This is the means by which women can address the problems of sexual harassment, rape, dangerous products, and hazardous chemicals or toxic wastes that have caused injuries or deaths.

It appears that juries today are awarding women and men comparable damages for comparable injuries, a significant change from . . . prior years. Implicit in this perception. . . is that in personal injury cases homemakers' services are being adequately valued and compensated. This fact might be explained by a greater availability of counsel in contingency-fee cases."Marion Silber, Esq. in "Report of the New York Task Force on Women in the Courts," XV Fordham Urban Law Journal 15, 81-2 (1986-87).

Thirty-four percent of women who are the head of a household are below the poverty line. U.S. Bureau of the Census, Statistical Abstract of the United States: 1993 No. 740 (113th edition 1993). Fifteen percent of Americans age 55 and older are below the poverty line. Id. at No. 743. Access to justice would be impossible for these groups.

Contingent fees have been recognized for making it possible for injury victims with strong cases but little economic resources to proceed to trial in situations where the far more financially well-heeled defendant has refused to settle. Refusal to negotiate is a tactic of wealthy corporate defendants and is a risk that corporate defendants involved in numerous lawsuits are sometimes willing to take, but one which a personal injury plaintiff with a single case can hardly ever afford.

The position of the plaintiffs' attorneys limits the strategic bargaining power of the defendants in personal injury cases, and restores some balance to pretrial negotiations." Samuel R. Gross and Kent D. Syverud, "Getting to No: A Study of Settlement Negotiations and the Selection of Cases for Trial," 90 Michigan Law Review 319, 349 (1991).

"Even if the explicit policy objective were to reduce frequency of suits, size of awards, and expenditure on litigation, it is doubtful that limiting contingent fees is an efficient means of achieving these results." Patricia Munch Danzon, Rand Corporation, Institute for Civil Justice, "Contingent Fees for Personal Injury Litigation," Summary at viii (R-2458-HCA, June 1980).

If a client wants to discuss an alternative fee structure, we will consider it.  However, it is a rare personal injury or wrongful death plaintiff who chooses to be billed by the hour and pay all the costs of litigation on a monthly billing basis.