Anne Reed over at Deliberations links to her excellent TRIAL Magazine article, "What Can a Mock Trial Tell You?"
She dispels misconceptions. She demystifies the process. And she highlights the many benefits of mock trying your case.
Blawgletter says check it out.
Kimberly Kralowec at The UCL Practitioner has the story and links here.
Blawgletter had the pleasure yesterday of alerting our gentle readers (Uniform Rates -- Bah!) to a blog we hadn't seen before -- the inimitable f/k/a, by David Giacalone. The post, relating to the tort reform credentials of Barack Obama, reminded f/k/a fans of a four-part essay Mr. Giacalone wrote (sometime before June 2006) "on the ethics and economics of contingency fees." It also noted a belief that lawyers "charg[e] virtually every personal injury client the same percentage fee regardless of how risky or easy the case might be" and that the practice "consistently extracts excessive fees from clients."
We mentioned the post to highlight our doubt that "market failure" explains why personal injury lawyers tend to charge the same percentage in contingent fee arrangements. We linked to an academic study, from January 2008, that found evidence of a "sorting" process that assigns cases to lawyers according to the lawyers' relative ability to maximize the personal injury plaintiff's recovery. Conclusion: the market works.
F/k/a's response appears, in full, below:
aside (April 30, 2008): If you’d like to see a good example of defensiveness and self-interest trumping facts, reason and legal-ethics, check out Barry Barnett’s response to my brief mention of standard contingency fees, in his posting today “Uniform Rates — Bah!” at his Blawgletter. Let’s hope his readers have the good sense to at least read f/k/a’s essay on the ethics and economics of contingent fees before coming to their own conclusions.
We didn't mean to affront our colleague at f/k/a, only to highlight research that offers an alternative explanation. How that became "defensiveness and self-interest trumping facts, reason and legal-ethics" we can only guess.
And our point wasn't to praise high contingent fees but to draw attention to the genuine differences between personal injury cases and commercial litigation. Things like typical clients' relative sophistication, knowledge, resources, and options as well as the large variability of contingent fees in business lawsuits.
F/k/a and Blawgletter will part as friends. For we heartily join with f/k/a in urging our readers to "read f/k/a’s essay on the ethics and economics of contingent fees before coming to their own conclusions." But we suggest that you examine the study as well.
Google this. Blawgletter gets as-they-happen Google Alerts by email. You might consider it too. Don't cost nothin'.
Our Alerts include items that mention "contingent fee" (or its yokely doppelganger, "contingency fee"). Most reference ads for personal injury lawyers, especially ones handling (still!) "mesothelioma" cases.
A claim of sameness. A more interesting one caught our eye yesterday. The item appeared on David Giacalone's f/k/a blog under the lower-case title obama's tort reform creds? On the way to finding Barack Obama neither fish nor fowl in tort reform terms, the post notes (with emphasis ours) that f/k/a has "written extensively on the topic of the standard contingency fee (charging virtually every personal injury client the same percentage fee regardless of how risky or easy the case might be), which we believe consistently extracts excessive fees from clients." And it refers the reader to "our four-part essay on the ethics and economics of contingency fees."
The "same percentage fee" and "excessive fees" got our attention. Specifically they provoked, how you say, dubiositousness. While we don't practice in the p.i. arena, we do recall that in January we saw a study that attributed the uniformity of contingent fee percentages in personal injury matters to some kind of "sorting" process. Cases sort themselves into a rough order of strength: The strongest cases go to the best lawyers, middling ones attract the not-so-greats, and the weakest end up with the pikers. The clients don't mind paying one-third because a 33.3 percentage assures that each gets the highest quality his or her individual case can attract.
Take a for instance. Say you have a great case -- hard damages of $10 million, a solvent defendant, and good liability facts. A hack lawyer would positively salivate at landing you as a client. He might even discount the usual one-third to keep you from going elsewhere. But will you hire him? Or will you go with the best personal injury trial lawyer in the state? You know -- the courtroom dynamo who doesn't need your case because she has so many other terrific ones to work on?
Commercial angle. We must say that we find the "sorting" conclusion appealing. We also expect that, if accurate, it applies with even greater force in the context of commercial -- business v. business -- litigation.
Why? In the first place, commercial litigants know more. They may not have served as president of the Harvard Law Review, but they do have contacts in the business and legal communities as well as the resources and savvy to evaluate credentials, look at success rates, and judge other signs of competence. So you'd expect businesspeople to do an even better job of finding the best contingent fee lawyer for their cases.
You'd also anticipate that companies and business owners grasp how to turn competition to their advantage. They know to shop their cases to compare offers. They understand that a "standard" contingent fee represents a starting point for negotiation. They or their regular counsel can haggle over terms -- not only the contingent percentage but also who pays expenses, whether expenses come out before computing the fee, and under what circumstances the lawyer can withdraw. Fee terms thus vary widely in commercial contingent fee litigation.
Businesses with money also enjoy more options. Law firms that will work on a contingent fee basis usually will offer also to take cases on an hourly basis, for a periodic flat fee, or under an arrangement that blends hourly with contingent. The business client chooses.
Bottom line. We favor contingent fees because they shift downside risk to the lawyer, better aligning the interests of client and lawyer. Clients appreciate them too. The study concluded, in fact, that clients so like the idea of shedding some of the risk of loss that they'll gladly agree to pay a contingent fee 2.5 times as big as the fees they'd expect to pay to an hourly lawyer. What does that tell you?
Anne Reed at Deliberations takes a helpful look today at Lawyers: So Certain, So Wrong. Her topic? "We all assume that if we like something, the rest of the world is going to like it too -- and when we assume that, we're usually mistaken. "
Ms. Reed goes on to relate the value of mock jurors in revealing "preference asymmetry".
Blawgletter applauds the reminders that (1) trial lawyers, like everyone else, fall in love with pet theories and (2) they benefit from airing them Before It's Too Late to Change (such as after opening statements).
Trial lawyer and jury consultant Anne Reed just got back from a sojourn in Japan, where she delivered a talk on jury stress and did lots of other cool stuff. And she has started sharing her thoughts about things she learned and re-learned during the trans-Pacific trip.
We especially like this snippet from her latest Deliberations post:
Americans widely believe that the voice of the citizen in the courtroom is important. In the big Harris Interactive poll on juries in January, half of respondents said they would trust a jury more than a judge to render a fair verdict, while only 23% said they would trust a judge over a jury. (The rest were unsure.) Juror blogs and the juror questionnaires I've seen repeat this theme often; juror after juror says it will be inconvenient to serve, but it's a civic duty they recognize and value.
Kevin O'Keefe practiced as a trial lawyer in rural Wisconsin for 17 years before founding Prairielaw.com, which he sold to LexisNexis, and then LexBlog, where he now serves as President.
Via his marvelously pithy Real Lawyers Have Blogs, Kevin offers lots of free advice on blawging -- or, as he might put it, LexBlogging. Kevin doesn't seem to suffer fools gladly, but RLHB has gobs of useful recommendations, links, and other resources for law bloggers. Plus, by way of LexBlog, he offers a turnkey LexBlogging solution.
We proudly add Real Lawyers Have Blogs to our Blawgroll.
