MOST OF US WHO ARE WRONGFULLY INJURED AND WANT to seek compensation need to hire a lawyer. Lawyers, however, are expensive. To proceed, we would need a way to finance the cost of hiring a lawyer. Four methods of financing tort litigation merit consideration.

First, the government could provide financing. As early as 1495, England began subsidizing access to the courts for those who were impecunious and injured. The English system of government subsidies – later called “legal aid” – eventually proved both costly and inadequate, and in 1990, the British government instituted a “conditional fee” system, allowing lawyers to finance access by charging an “uplift” of up to double their regular fee if the suit were successful in exchange for the same amount of downward adjustment of the fee if the case was lost. The English “double or nothing” conditional fee, often referred to as a “a success fee,” however, is a far cry – incentive-wise – from the American contingency fee system, which ties lawyers' fees to the amounts recovered. Even so, English solicitors have done quite well under this system. The expectation was that the uplift would reflect the degree of risk that the lawyer was assuming so that upward adjustments would be balanced by downward fee adjustments. In fact, downward adjustments have been infrequent because solicitors carefully select the cases in which to charge a conditional fee and rarely suffer a loss.