Photo by Lenny Baker
The problem with people criticizing lawyers who “did nothing” and recovered a large contingent fee is that the critics seem willfully oblivious to the fact that lawyers with contingent fee practices do a very large amount of work and they “get nothing” in many cases. That is, they strike out.
“Yes, maybe that is true for the mediocre or bad contingent fee lawyers….” the persistent critic answers. “The good ones, however, just rake in 33% or more of meritorious cases (they pick them so well that’s all the cases they take) and they do absolutely nothing. They’re parasites…”
Wrong again. For every “home run contingent fee case” (a case with clear liability, high damages, solvent (and repentant) defendant), any experienced civil litigator will tell you there are literally hundreds of contingent fee cases where some or all of these essential variables are unfavorable.
In fact, if the data were publicly available, I would predict that contingent fee lawyers’ odds are pretty much in line with baseball batting averages. If so, “batting over 300” (that is, making a net positive recovery in one of every three cases) is doing quite well. And no one ever comes close to even batting .500. (I emphasize: “net positive.” It would seem probable that experienced contingent fee lawyers recover money in more than 1 of 3 of their cases, but many settlements are compromised amounts such that the investments in the case exceed the ultimate contingent fee recovery. So there is a recovery but, in light of unreimbursed costs and investment of time, the result could not reasonably be seen as a net recovery.)
If the odds are along these lines, it means that the contingent fee lawyer must make her living, must support herself, her family, her office and support staff, in one of every three cases. She will lose money on two out of three. She must not only “win” the case but she often has to pay what can be substantial costs along the way and she has to subsidize cases she loses. And, by the way, even the best contingent fee lawyers must lose cases and will lose some dramatically. A change in the law, for example, will tear the legs out from under a home-run case. A defendant will go bankrupt. Remember: run-away juries run in both directions.
I hope that Nadezhda V. Wood, a St. Paul, Minnesota lawyer, who was the subject of this past yesterday’s post, took the case for Adam Soczynski on a contingent fee and I hope that Mr. Soczynski and his family do not begrudge Ms. Wood and her co-counsel, Tom Laughlin, their portions of the recovery.
Ms. Wood and Mr. Laughlin took on the risk of a Miller Shugart settlement. The risk paid off. From the linked order, we cannot tell how much the lawyers had to sink into the case but if the lawyers’ recovery seems disproportionate to the amount of work done, no one should lose sight of the big picture.