The fracturing legal profession: The case of plaintiffs' personal injury lawyers

International Journal of the Legal Profession

Volumn 8, Issue 3, 2001, Pages 225-250

  Kritzer, Herbert M ^a  

^a UNIVERSITY OF WISCONSIN MADISON   (United States)

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EID: 84899280450     PISSN: 09695958     EISSN: 14699257     Source Type: Journal    
DOI: 10.1080/09695950220141034     Document Type: Note

References (103)

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3. 2001. DePaul Law Review, 51(2): 219–240. published as: From litigators of ordinary cases to litigators of extraordinary cases: stratification of the plaintiffs' bar in the twenty-first century, I would like to thank the anonymous reviewers of this paper for many very helpful comments and suggestions
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23. Flood, J., 1989. Megalaw in the UK: professionalism or corporatism? A preliminary report. Indiana Law Journal, 64 Summer: 569–592. regarding the growth of the 'megalaw' corporate sector in the United Kingdom
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30. Kritzer, H.M., 1991b. Propensity to sue in England and the United States: blaming and claiming in tort cases. Journal of Law and Society, 18: 400–427.
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33. Susskind, R.E., 2001. Transforming the Law: Essays on Technology, Justice, and the Legal Marketplace, revised edition, Oxford: Oxford University Press.
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35. Kritzer, H.M., 2002. The future role of 'law workers': rethinking the forms of legal practice and the scope of legal education. Arizona Law Review, (forthcoming)
36. Genn, H., 1988. Hard Bargaining: Out of Court Settlement in Personal Injury Actions, Oxford: Oxford University Press. I should probably note, however, that my own analysis of plaintiffs' success in cases actually filed in court, albeit in a study not limited to personal injury cases or personal plight cases more generally, did not show any impact of lawyer specialisation or lawyer experience; specialisation did improve success from the viewpoint of the contingency fee lawyer [see
37. Kritzer, H.M., 1990. The Justice Broker: Lawyers and Ordinary Litigation, 135–161. New York: Oxford University Press. however, in another study which did include contingent fee lawyers in one setting, I did find that specialisation was a very significant factor in effectiveness [see
38. Kritzer, H.M., 1998b. Legal Advocacy: Lawyers and Nonlawyers at Work, Ann Arbor: University of Michigan Press.
39. DeFrances, CJ., and Litras, M.FX., 1999. Civil Trial Cases and Verdicts in Large Counties, 1996, 7Washington: Bureau of Justice Statistics, US Department of Justice. A study of jury verdicts in 45 of the 75 largest counties in the US for 1996 found the median verdict in tort cases to be $31,000, and that only 5.8% of the tort verdicts exceeded $1 million
40. DeFrances, C.J., Smith, S.K., Langan, P.A., Ostrom, B.J., Rottman, D.B., and Goerdt, J. A., 1995. Civil Jury Cases and Verdicts in Large Counties, 5Washington, DC: Bureau of Justice Statistics, US Department of Justice. these figures actually constitute a decline from 1992, when the comparable figures for the same counties were $51,000 and 7.8%
41. Seron, C., 1996. The Business of Practicing Law: The Work Lives of Solo and Small-Finn Attorneys, Philadelphia: Temple University Press. The same can be said of the personnel services sector of the American legal profession more generally. See
42. Van Hoy, J., 1995. Selling and processing law: legal work at franchise law firms. Law & Society Review, 29: 703–729.
43. Van Hoy, J., 1997. Franchise Law Firms and the Transformation of Personal Legal Services, Westport, CT: Quorum Books.
44. Van Hoy, J., 1999. Markets and contingency: how client markets influence the work of plaintiffs' personal injury lawyers. International Journal of the Legal Profession, 6: 345–366.
45. Daniels, S., and Martin, J., 1999. 'It's Darwinism-survival of the fittest': how markets and reputations shape the way in which plaintiffs' lawyers obtain clients. Law & Policy, 21: 377–399.
46. Hensler, D.R., 1993. Reading the tort litigation tea leaves: what's going on in the civil liability system?. Justice System Journal, 16: 139–154.
47. Harris, A., 2001. Report maps million dollar verdict states. National Law Journal, 12 February: A4
48. Heinz, J.P., Nelson, R.L., and Laumann, E.O., 1999. The Scale of Justice: Observations on the Transformation of Urban Law Practice On the changing scale of practice on the corporate services side see
49. Galanter, M., and Palay, T.M., 1991. Tournament of Lawyers: The Transformation of the Big Law Firm, Chicago: University of Chicago Press.
50. Hines, C.N., 2001. A legal eagle (his ad claims): with mascots and slogans, lawyers turn to advertising. New York Times, 15 November: C1C4 The 'brand name' phenomenon is by no means unique to the plaintiffs' bar; see
51. Habush, Robert L., 2001. a 'typically relentless' approach wins big. National Law Journal, 16 July: C9
52. Goldhaber, M.D., 2001. Boies Schiller's big year. National Law Journal, 12 February: A1A17
53. Galanter, M., 1974. Why the 'haves' come out ahead: speculations on the limits of legal change. Law & Society Review, 9: 95–160.
54. Harr, J., 1995. A Civil Action, New York: Random House.
55. Amon, E., 2000. Cincinnati gun suit fires a dud. National Law Journal, 4 September: A10
56. Duffy, S.P., 2001. Philly loses its gun maker suit. National Law Journal, 8 January: A4
57. Levy, R., 2000. Blackmail of gun makers. National Law Journal, 31 January: A20
58. Turbin, R., 1999. Gun manufacturers in plaintiffs' sights. National Law Journal, 9 August: B20
59. Van Voris, B., 1998. Gun cases use tobacco know-how; the sequel. National Law Journal, 7 December: A1
60. Hickinbottom, G., 2001. “ Benzodiazepine litigation ”. In Multi-Party Actions, Edited by: Hodges, C., Oxford: Oxford University Press.
61. 1999. Clare Dyer, It's the end of the line for legal aid. The Guardian, 19 January: 17 Another news item put the figure at £28.6 million-Tranquilliser legal aid cases cost £28.6
62. 1995. The Daily Telegraph, 17 February: 10 One firm, Irwin Mitchell, received a reported £5 million in fees from legal aid
63. Iightfood, Liz, and Chittenden, Maurice. 1996. Legal aid firms make millions from failed cases. The Times, 5 May
64. 1997. The legal aid board itself addressed the issues raised by such cases in a report entitled When the Price Is High, London: Legal Aid Board.
65. Bailis, D.S., and MacCoun, R.J., 1996. Estimating liability risks with the media as your guide. Judicature, 80: 64–67.
66. Chase, O.G., 1995. Helping jurors determine pain and suffering awards. Hofstra Law Review, 23: 763–790. 772–774.
67. Kritzer, H.M., 2001. Public perceptions of civil trial verdicts. Judicature, 85 September-October: 78–82. In a recent national survey, I asked respondents "In addition to deciding guilt and innocence in criminal trials, juries are used in the US to determine liability and damages in noncriminal cases. From what you know, can you give me an estimate of the typical or average amount of damages that juries award in a personal injury case of the type that arises from auto accidents, injuries from defective products, medical negligence and the like?" About 42% replied that they could not give an estimate; of the 58% of respondents who did give an estimate, the median was $100,000; 23.8% of the respondents who could provide an estimate gave a figure of $1 million or more. Eight respondents gave a figure exceeding $100 million-which seems absurd until you recall that the survey was in the field around the time of the Florida tobacco verdict!
68. Tickwell, Oliver. 1997. The price of justice. The Guardian, 10 December: 4 Legal aid paid out £ million in fees and costs; see
69. Elvy, M., Alexander, M., Keevil, T, and Hodges, C., eds. 2001. “ Tobacco litigation: 1992- 1999 ”. In MultiParty Actions, Oxford: Oxford University Press.
70. Gilbert, Nick. 1997. Martyn Day: smoking out the tobacco giants. The Independent, 11 May: 5
71. Scott, Kirsty, and Dyer, Clare. 2001. Last testament. The Guardian, 1 May: 16
72. Michalik, P., 1999. “ Justice in crisis: England and Wales ”. In Civil Justice in Crisis: Comparative Perspectives of Civil Procedure, Edited by: Zuckerman, A.A.S., 159Oxford: Oxford University Press.
73. Ethics and Lawyer Fee Arrangements Working Group. 2001. Report of Working Party on the Ethics of Conditional Fee Arrangements, 49London: Society for Advanced Legal Studies.
74. Kritzer, H.M., 1984. Fee arrangements and fee shifting: lessons from the experience in Ontario. Law and Contemporary Problems, 47: 125–138.
75. Kritzer, H.M., 1992. The English rule. ABA Journal, 78: 54–58.
76. Di Pietro, S., 1996. The English rule at work in Alaska. Judicature, 80: 88–92.
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78. Hughes, J.W, and Snyder, E.A., 1995. Litigation and settlement under the English and American rules: theory and evidence. Journal of Law and Economics, 38: 225–250.
79. Donohue, J.J., III. 1991. The effects of fee shifting on the settlement rate: theoretical observations on costs, conflicts, and contingency fees. Law and Contemporary Problems, 54(3): 195–222. Several scholars have considered a system such as this: see
80. Smith, B.L., 1992. Three attorney fee-shifting rules and contingency fees; their impact on settlement incentives. Michigan Law Review, 90: 2154–2189.
81. Stein, M.S., 1995. The English rule with client-to-lawyer risk shifting: a speculative appraisal. Chicago-Kent Law Review, 71: 603–624.
82. Sanders, J., 1998. Bendectin on Trial: A Study of Mass Tort Litigation, Ann Arbor: University of Michigan Press. An excellent example of this kind of decision can be seen in the litigation over Bendectin. Ultimately Merrill Dow prevailed but the company sought to avoid the costs of litigation and the potential costs of losing by agreeing to a $180 million settlement. The litigation proceeded because that class certification that was central to that settlement was thrown out by the Sixth Circuit Court of Appeals; see
83. Hilborne, N., 1999. Accident Line Protect 'might not survive'. Solicitors Journal, 22 October: 967
84. Alcock, M., 1999. Law Society sends rates rocketing. Post Magazine, 21 October: 10
85. Rose, N., 2000. Call for return of 25% cap on CFAs. The Gazette,: 1 This firm's success rate may not be atypical; one study which obtained data on over 100 cases from 34 firms found a 'success rate' of 93%
86. Harris, D., Maclean, M., Genn, H., Lloyd-Bostock, S., Fenn, P., Corfield, P., and Brittan, Y., 1984. Compensation and Support for Illness and Injury, 81Oxford: Oxford University Press. There is another interesting implication of conditional fees which might actually reduce the number of cases handled by solicitors. Insurers in England have long resisted claims from unrepresented clients; one study from the early 1980s showed that only 8% of personal injury claimants who recovered damages were unrepresented
87. Genn, H., 1999. Paths to Justice: What People Do and Think About Going to Law, 162Oxford: Hart Publishing. more recent research suggests that by the late 1990s this had not changed in any significant way; Prior to conditional fees (and the insurance now routinely available for the claimants downside risk), insurers probably counted on significant numbers of claims not being pursued because the potential claimant did not want to face the risks of having to pay costs, both the claimants and the insurers, if the claim was unsuccessful; most clients no longer have to face that risk. This may make it more attractive to the insurers to try to settle before a solicitor becomes involved, particularly now that the insurer has to cover the uplift associated with the conditional fee
88. Champagne, A., and Cheek, K., 1996. PACs and judicial politics in Texas. Judicature, 80: 26–27.
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94. Colbey, R., 2000. Adding insult to injury claim. Guardian, 1 July: 10
95. Croft, J., 2001. Claims Direct's founders hold winning hand. Financial Times, 11 August: 14 This figure has dropped, both due to competition from other claims management companies and due to Claims Direct's own problems and negative publicity, to 1,000 per month by June 2001
96. Farrow, P., 1991. The pains of accident daims. Sunday Telegraph, 20 May: 10
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99. Galanter, M., 1998a. Anyone can fall down a manhole: the contingency fee and its discontents. DePaul Law Review, 47(2): 457–477. 471
100. Jacob, H., Blankenburg, E., Kritzer, H.M., Provine, D.M., and Sanders, J., 1996. Courts, Law and Politics hi Comparative Perspective, 142New Haven: Yale University Press. In England, one need not be a lawyer to negotiate settlement of personal injury claims with an insurer on behalf of a fee-paying client
101. Law Society. 1970. Memorandum on Maintenance and Champerty: Claims Assessors and Contingency Fees, London: Law Society. As a result, one also finds organisations of non-lawyers, such as Claims Direct, competing with lawyers. The competition of non-lawyers is not new, but has become much more prominent since the adoption of conditional fees; I discuss the implications of this competition later in this essay
102. Siler, J.F., 1988. Liability litigator: Micharel Ciresi; winning with hard work and histrionics. New York Times, 9 October: 36
103. Phelps, D., 2001. Robins, Kaplan catastrophic group adds firepower of top litigator Jim Fetterly. Star Tribune, 28 January: D1D4