This book is a broad and deep inquiry into how contingency fees distort our civil justice system, influence our political system, and endanger democratic governance. Contingency fees are the way personal injury lawyers finance access to the courts for those wrongfully injured. Although the public senses that lawyers manipulate the justice system to serve their own ends, few are aware of the high costs that come with contingency fees. This book sets out to change that, providing a window into the seamy underworld of contingency fees that the bar and the courts not only tolerate but even protect and nurture. Contrary to a broad academic consensus, the book argues that the financial incentives for lawyers to litigate are so inordinately high that they perversely impact our civil justice system and impose other unconscionable costs. It thus presents the intellectual architecture that underpins all tort reform efforts.
1. The origin of the contingency fee; 2. How profitable are contingency fees?; 3. Are contingency fee profits 'reasonable'?; 4. How tort lawyers have increased their profits by restraining competition; 5. Why the market has failed to correct the absence of price competition; 6. Impediments imposed by the bar to price competition; 7. The effects of incentives created by contingency fees; 8. How the quest for profits influenced the development of the tort system; 9. Lawyers' role in the expansion of tort liability; 10. The role of the judiciary in tort system expansion; 11. Current and future expansions of tort liability; 12. The litigation explosion: 'fact or fiction'?; 13. Measures of the rate of expansion of tort liability; 14. The relationship between injury rates and tort system costs; 15. The impacts of substantial increases in tort lawyers' effective hourly rates; 16. Class actions; 17. Fees in class actions; 18. How class action lawyers game fee setting; 19. Securities class actions; 20. Regulation through litigation; 21. A new role for punitive damages: policy-making as a profit center; 22. For-profit partnerships between state attorneys general and contingency fee lawyers; Appendix A. A critique of Alex Tabarrok, the problem of contingent fees for waiters; Appendix B. Calculating tort lawyers' effective hourly rates in 1960; Appendix C. Electronic discovery and the use of contract lawyers; Appendix D. The HMO litigation; Appendix E. The GM 'side saddle' truck litigation: the (short lived) triumph of litigation over the regulatory process; Appendix F. Modern class actions undermine democratic precepts; Appendix G. Other ways lawyers game class action fees; Appendix H. Non-recourse financing of tort litigation; Appendix I. Political contributions by tort lawyers and the U.S. chamber of commerce; Appendix J. Special rules favoring lawyers; Appendix K. The ultimate medical expense 'build-up': whiplash; Appendix L. The effect of punitive damages on compensatory awards.
"Lester Brickman is a man with a mission: To expose the waste and fraud that permeates the system of tort liability as it has grown up over the past forty years in the United States. Brickman is an indefatigable researcher who understands the keys to unlocking the secrets of the tort system. What is truly striking about Lawyer Barons is not just the massive amount of evidence presented but the tenacity with which he tracks down just about every scrap of available evidence on a particular problem and melds it into a compelling narrative that reads as a coherent whole.
Anyone who reads this book will quickly conclude that tort reform belongs back on the national agenda."
- Richard Epstein
Lawrence A. Tisch Professor of Law, N.Y.U. Law School
Peter and Kirsten Bedford Senior Fellow, Hoover Institution
"Accident rates decline, but tort costs increase. In Japan, legal fees consume just 2% of compensation payments, but American lawyers take more than half the money. If you suspected that our legal system is rigged to fund lawyers at consumers' expense, this book well documents that. Our system is disgusting. In great detail, Lester Brickman explains how American lawyers collaborate with judges to use their special coercive powers to overwhelm defendants and create 'a huge money making' machine for themselves."
- John Stossel
Fox Business Anchor
"In Lawyer Barons, Lester Brickman exposes the new legal power elite as little more than a sleazy, self-interested racket. Brickman surgically dismantles each rationale for their approach to justice, revealing a sewer of hypocrisy and greed. Brickman lets the facts do the work of the powerful indictment, leaving the Bar with this unavoidable choice – does it stand for justice, or money?"
- Philip Howard
Founder, Common Good
Author, The Death of Common Sense
"Tort litigation in America is riven with abusive and corrupt practices that Dickens would find familiar. Dickens is not around to chronicle them, but fortunately, Lester Brickman is. Himself an able story-teller, Brickman combines compelling narrative with lucid summary of pertinent theories and research. He builds a powerful case that current fee practices undermine the tort system and betray the professed values of the legal profession."
- William H. Simon
Arthur Levitt Professor of Law
Columbia Law School
"Lester Brickman has long strikingly exposed in scholarly and other writings the gross unfairness of much personal injury law, especially the often scandalously excessive 'contingent fees' charged by many claimants' lawyers. In this thorough but readable book Brickman both collects and expands on his seminal scholarship to the benefit of all – except those same claimants' lawyers."
- Jeffrey O'Connell
Samuel H. McCoy II Professor of Law
University of Virginia School of Law
“There is about [LAWYER BARONS] the sort of fascination one has in being let in on the workings of a particularly long con. … Mr. Brickman has made the case for a re-thinking of contingency fee arrangements. Considering the powerful role of such arrangements in the shape and evolution of the American legal system, that is a considerable achievement.”
- Dennis Jacobs
New York Law Journal
"...Essential reading for anyone who wants to understand how the modern American tort system actually works."
- Daniel Fisher