High Cost of a contigency fee system


Originally published in The Indianapolis Star

The contingency fee based system of payment for litigation in America is a moral and ethical sham. And it is the basis for many of the problems in our legal system and the country at large.

It creates an inherent conflict of Interests for the Individual lawyer, who like everyone else, has bills to pay. Going after the highest possible settlement knowing that you are going to get a large cut of the action is a temptation too great for most individuals to resist. It is no wonder that trial lawyers quake at the mere mention of tort reform.

The contingency fee system encourages all sorts of question-able practices by the personal Injury lawyer, most particularly the shotgun naming of every conceivable party no matter how remotely Involved.

They splatter blame, soil reputations, cause tremendous stress, inconvenience and expense as they seek out the deepest pockets so the largest possible settlement can be extracted.

It is a curious practice because it means that the amount of money, settled on depends upon how much the guilty party has. Isn't there something intrinsically unethical about this? The notion of a "just settlement" becomes a minor inconvenience easily overlooked in the race to cash in on the litigation sweepstakes.

It doesn't stop with shotgun litigation and the search for deep, pockets. What about the Intimidation of it defendants by suing for outrageous. amounts, knowing they will back off and settle out .of court even when they believe they are right? Or what about, the aggressive advertising and. solicitation of clients and the manipulation of people at emotional times of personal loss or injury?

Witness the recent circus of lawyers who descended on Evansville in the wake, of the re- cent airplane crash: such action Invited condemnation by the Indiana Supreme Court.

Lawyers, of course, will claim: they have only the best interests, of their clients at heart. They will parade themselves as protectors of the people against the big corporation or the bad doctor or the evil municipality or landlord or state.

My question is! Who protects us from the lawyers?

There is a national orgy of litigation with typical outrageous settlements being handed out like food stamps. According to a recent issue of Forbes Magazine. the "tort tax" cost the United States $187 billion in 1991.

In 1991 the tort tax on a per capita basis was seven times greater in the United States than Japan; five times greater here than in Britain.

No nation ever sued its way to prosperity, What Is the net gain to society when 18 million lawsuits are filed a year?

"Does America really need 70 percent of the world's lawyers?" Vice President Dan Quayle recently asked the American Bar Association, Much to members chagrin.

Other developed nations of the world have devised sane methods of settling disputes or. compensating the injured. We need to look at ours.

The measures heeded are simple and straightforward. The state of Indiana; for example, has significantly reduced the. burden of medical malpractice litigation through the use of arbitration review panels and caps on settlements. Other possibilities include limiting or eliminating awards for; pain, and suffering, no-fault compensation and Imposing court fees on the loser.

National standards; for appropriate, equitable and prompt, compensation rather than the random "lottery"-based system practiced today are another way to force lawyers and clients to be more responsible in seeking awards and damages.

All this would save billions of dollars, lower prices, allow companies to become more competitive and hopefully have a lot of lawyers considering career changes.

Moss is a physician who resides in Jasper.


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