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80 Wash. U. L. Q. 739 (2002)
Seven Dogged Myths Concerning Contingency Fees

handle is hein.journals/walq80 and id is 755 raw text is: SEVEN DOGGED MYTHS CONCERNING CONTINGENCY FEES HERBERT M. KRITZER* INTRODUCTION One of the hallmarks of litigation in the United States is what we call the contingency fee. Given the alleged litigation explosion in the United States' and the supposed litigiousness of the American populace,2 the contingency fee is a frequent target of the proponents of so-called tort reform who seek to reduce both the exposure to lawsuits and the amounts paid out in damages.3 * Professor of Political Science and Professor of Law and Director of the (undergraduate) Legal Studies Program, University of Wisconsin-Madison; B.A., 1969, Haverford College; Ph.D., 1974, University of North Carolina at Chapel Hill. The original research reported in this Article was supported by a grant from the National Science Foundation's Law and Social Science Program (Grant No. SBR-9510976); additional support was provided by the University of Wisconsin Graduate School. Research assistance was provided by J. Mitchell Pickerill, Jayanth Krishnan, Lisa Nelson, and Ian Crichton. I would like to thank the Administrative Office of the United States Courts and the RAND Corporation for making available to me data from RAND's evaluation of the Civil Justice Reform Act; Nicholas Pace (currently at RAND) and James Kakalik (now retired from RAND) were generous in assisting me and answering questions as I worked with those data. The conclusions I drew from those data are of course my own and do not represent the views of either the Administrative Office or the RAND Corporation. I would also like to thank Stephen Daniels of the American Bar Foundation for making available some unpublished results from the survey of Texas plaintiffs' lawyers that he conducted in collaboration with Joanne Martin. 1. See generally PATRICK M. GARRY, A NATION OF ADVERSARIES: How THE LITIGATION EXPLOSION IS RESHAPING AMERICA (1997); MARY ANN GLENDON, A NATION UNDER LAWYERS: HOW THE CRISIS IN THE LEGAL PROFESSION Is TRANSFORMING AMERICAN SOCIETY (1994); JETHRO K. LIEBERMAN, THE LITIGIOUS SOCIETY (1981); WALTER K. OLSON, THE LITIGATION EXPLOSION: WHAT HAPPENED WHEN AMERICA UNLEASHED THE LAWSUIT (1991); Bayless Manning, Hyperlexis: Our National Disease, 71 Nw. U. L. REV. 767 (1977); Derek C. Bok, A Flawed System, 85 HARV. MAG. 38 (1983). For critiques of the litigation explosion argument, see Richard L. Abel, The Real Tort Crisis-Too Few Claims, 48 OHIO ST. L.J. 443 (1988); Richard D. Catenacci, Hyperlexis or Hyperbole: Subdividing the Landscape of Disputes and Defusing the Litigation Explosion, 8 REV. LITIG. 297 (1989); Stephen Daniels, We Are Not a Litigious Society, 24(2) JUDGES' J. 18 (1985); Marc Galanter, The Day After the Litigation Explosion, 46 MD. L. REV. 3 (1986); Marc Galanter, Reading the Landscape of Disputes: What We Know and Don't Know (and Think We Know) about Our Allegedly Contentious and Litigious Society, 31 UCLA L. REv. 4 (1983). 2. A variety of evidence suggests that the United States may not be uniquely litigious. See Christian Wollschlager, Exploring Global Landscapes of Litigation Rates, in SOZIOLOGIE DES RECHTS: FESTSCHRIFT FOR ERHARD BLANKENBURG ZUM 60 GEBURTSTAG (Brand & Strempel eds., 1998); Basil S. Markesinis, Litigation-Mania in England, Germany and the USA: Are We So Very Different?, 49 CAMBRIDGE L.J. 233 (1990). 3. See Lester Brickman, Contingent Fees without Contingencies: Hamlet without the Prince of Denmark? 37 UCLA L. REV. 29 (1989); Lester Brickman, On the Relevance of the Admissibility of Scientific Evidence: Tort System Outcomes Are Principally Determined by Lawyers' Rates of Return, 15 CARDOZO L. REV. 1755 (1994); LESTER BRICKMAN ET AL., RETHINKING CONTINGENCY FEES

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