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81 Judicature 22 (1997-1998)
Contingency Fee Lawyers as Gatekeepers in the Civil Justice System

handle is hein.journals/judica81 and id is 24 raw text is: Contingency fee lawyers as gatekeepers in the civil justice system A recent study indicates contingency fee lawyers generally turn down at least as many cases as they accept, most often because potential clients do not have a basis for their case. by Herbert M. Kritzer Lawyers, particularly contin- gency fee lawyers, are gate- keepers who control the flow of civil cases into the courts. Although they can exercise this gatekeeping role in ways that either encourage or discourage po- tential litigants, the popular image of lawyers is that they stir up trouble. In A Nation Under Lawyers, Mary Ann Glendon argues that this should not be the case; she quotes an observation attributed to Elihu Root: About half of the practice of the decent lawyer consists in telling would-be clients that they are damned fools and should stop.' Glendon implies that today lawyers are more interested in encouraging clients to sue than in being the de- cent lawyers of yesteryear. This image is particularly associ- ated with contingency fee lawyers. This is not surprising because of the HERBERT M. KRITZER, a professor of political science and law, is chair of the Department of Political Science at the University of Wisconsin. apparent logic of the contingency fee: the lawyers get a cut of whatever they recover, and without cases there is no cut to get. Various interests- physicians, accountants, auto execu- tives, chemical companies-blame 22 Judicature Volume 81, Number 1 contingency fee lawyers for much of what they view as crises arising from the liability system. Undoubtedly, there are lawyers who push the edge of the liability frontier, or who en- gage in practices pejoratively re- ferred to as ambulance chasing. However, the day-to-day reality of most contingency fee legal practices is very different. While virtually every contingency fee practitioner wants to find highly lucrative cases, such cases are relatively rare. Many cases pre- sented to lawyers are not winnable, or they do not offer a prospect of even a moderately acceptable fee. The con- tingency fee practitioner seeks cases that offer a high probability of pro- viding at least an acceptable return, hoping to find some fraction of cases July-August 1997

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