Dallas Personal Injury Attorney Blog

Both the United States Constitution and the Texas Constitution provide that every citizen has the right to free access to the courts and to a jury trial. Having a Constitutional right to use the courts to seek justice is great, of course - but having a right to seek justice in the courts and actually being able to afford doing so are two dramatically different things. Litigation is expensive - very expensive. A product liability suit against a big car manufacturer or a complex medical malpractice suit may cost over $100,000.00 in expenses alone - filing fees, expert witness fees, court reporter charges, preparation of exhibits, investigators - even before the cost of the attorney's services are figured in. An attorney with the skills to actually take on the legal army that a car manufacturer would put in the field or the knowledge to develop a complex medical negligence case would easily command $500 an hour for his time. Fees and expenses in even a typical contract dispute often exceed $20,000.00.

Consider, then, the plight of a working class family whose children burn to death in a car with a defective gas tank, or whose child has been crippled by a doctor's mistake. There is not even the slightest possibility that they could afford either the expenses or the attorneys necessary to investigate and prosecute their case, and no chance at all that they would prevail without sophisticated legal help.

Contingent Fees
Contingent fee arrangements make it possible for such plaintiffs to take on a rich defendant. A typical contingent fee contract does two things: first, it provides that the lawyer does not get paid unless he is successful. Second, it provides that the lawyer who takes the case will pay the expenses of the case, and that the client will not have to pay the expenses until the case is over - and only if there is a recovery for the client. That means that people who otherwise could not afford to assert a claim in court can do so. It also means that lawyers who take cases on a contingent fee basis are gambling their time and their money on the outcome of their client's case.

Because of the contingent fee system, average citizens can take on big businesses who could otherwise bury them in expense and legal fees, making a legal victory impossible. Big business and insurance carriers hate contingent fees for that very reason. Eliminate the contingent fee contract and no average person could ever afford to sue.

Frivolous Lawsuits?
For those of you concerned that there might be too many frivolous lawsuits (and there are definitely some silly ones filed) consider this: in a contingent fee system, if a plaintiff's lawyer takes a case to trial and loses, then he loses everything - sometimes years of his time and hundreds of thousands of dollars in expenses invested in the case. Any big case is a really big gamble by the plaintiff's attorney, and if their clients lose, the attorney loses, too.

For those of us that handle some cases on a contingent fee basis, this is a very real deterrent to taking any case that we don't really believe in. Think about it:
When was the last time you gambled $100,000 of your time and money on what twelve complete strangers might think was fair? How sure would you have to be that you were right before making the gamble? When the injuries are severe, and the case is going to be expensive, no attorney that I know files suit without a lot of thought.

This is a system that works: that's why when you read about some ludicrous claim like a claim against a fast food company for "making people fat", you only read about the one case, its always filed in another state, and you never hear about it again. Real lawyers risking real money don't take cases like that. Someone might file such a case to get some quick and easy publicity when gullible reporters (or the usual anti-lawsuit big business crowd) jumps all over the story, but anybody who knows anything about our justice system knows that cases like that are always thrown out by the trial judge pretty quickly. When they are, you won't read about it - because a frivolous case being dismissed isn't news, and because the pro-business and anti-consumer crowd would hate for you to think that the system doesn't need to be "reformed" to make it even more difficult for the average person to sue big business.

John Polewski is a board certified attorney with offices in DeSoto and Midlothian.