Law Commons^™

Fee-Shifting Statutes And Compensation For Risk, Maureen S. Carroll

Articles

A law firm that enters into a contingency arrangement provides the client with more than just its attorneys' labor. It also provides a form of financing, because the firm will be paid (if at all) only after the litigation ends; and insurance, because if the litigation results in a low recovery (or no recovery at all), the firm will absorb the direct and indirect costs of the litigation. Courts and markets routinely pay for these types of risk-bearing services through a range of mechanisms, including state fee shifting statutes, contingent percentage fees, common-fund awards, alternative fee arrangements, and third-party litigation …

Contracts: An Eight-Factor Test For Quantum Meruit Compensation For A Dismissed Contingency Fee Counsel—Faricy Law Firm, P.A. V. Api, Inc. Asbestos Settlement Trust, 912 N.W.2d 652 (Minn. 2018), Mitch Ohiwa

Mitchell Hamline Law Review

No abstract provided.

Follow The Money? A Proposed Approach For Disclosure Of Litigation Finance Agreements, Maya Steinitz

Faculty Scholarship

Litigation finance is the new and fast-growing practice by which a non-party funds a plaintiff’s litigation either for-profit or for some other motivation. Some estimates placed the size of the litigation finance market at 50–100 billion dollars. Both proponents and opponents of this newly -emergent phenomenon are in agreement that the it is the most important development in civil justice of this era. Litigation finance is already transforming civil litigation at the level of the single case as well as, incrementally, at the level of the civil justice system as a whole. It is also beginning to transform the way …

Letter To The Hon. Sen. Orrt (Nys Senate) Regarding Litigation Finance (Lawsuit Lending) (2018), Maya Steinitz

Faculty Scholarship

Following testimony to the New York State Senate's Standing Committee on Consumer Protection (available on SSRN and YouTube), Professor Steinitz was asked to elaborate on her recommendation for a statutory minimum recovery requirement to protect consumers of litigation financing. Enclosed is her response to this inquiry.

Testimony On Third Party Financing Of Lawsuits, Maya Steinitz

Faculty Scholarship

In this written testimony, Professor Steinitz addresses bills pending in the New York State Senate and Assembly relating to consumer litigation finance. Among other things, she suggests (1) establishing a “Minimum Payment” for plaintiffs, instead of (or in addition to) flat rates or interest caps; and (2) defining the scope of application by applying an “Unsophisticated Plaintiff” test rather than by focusing on the financing amount. She also addresses other matters implicated by the bills such as whether lawyers should be permitted to provide financial advice, prohibition of prepayment penalties, registration requirements, and right of rescission in the context of …

Taxing Litigation: Federal Tax Concerns Of Personal Injury Plaintiffs And Their Lawyers, Gregg Polsky

Scholarly Works

This Article addresses the federal tax concerns ofpersonal injury plaintiffs and the lawyers who represent them, typically on a contingencyfee basis. It explains when plaintiffs' recoveries are taxable for income and employment tax purposes and whether and how those recoveries are required to be reported by defendants to the IRS. It also discusses whether attorney's fees and costs are deductible by plaintiffs.

In addition to these tax planning and compliance issues, the Article also considers when tax evidence might be admissible. Plaintiffs and defendants often try to introduce tax evidence in an effort to increase or decrease, respectively, the amount …

Tax Ferrets, Tax Consultants, Bounty Hunters, And Hired Guns: The Property Tax Netherworld Fueled By Contingency Fees And Champertous Agreements, J. Lyn Entrikin

Faculty Scholarship

Contingency fee agreements between local tax assessors and contract auditors on the one hand, and property owners and private tax consultants on the other, create perverse financial incentives that undermine the integrity of state and local tax administration. When local governments engage outside auditors to identify undervalued or escaped taxable property, the practice raises serious due process and ethical concerns. As a matter of policy, diverting a share of property tax revenue to private third parties in consideration for outsourced tax assessment services undermines public accountability and reduces net property tax revenue for local government services. And when states allow …

Notions Of Fairness And Contingent Fees , Eyal Zamir, Ilana Ritov

Law and Contemporary Problems

No abstract provided.

Rewarding Prosecutors For Performance, Stephanos Bibas

All Faculty Scholarship

Prosecutorial discretion is a problem that most scholars attack from the outside. Most scholars favor external institutional solutions, such as ex ante legislation or ex post judicial and bar review of individual cases of misconduct. At best these approaches can catch the very worst misconduct. They lack inside information and sustained oversight and cannot generate and enforce fine-grained rules to guide prosecutorial decisionmaking. The more promising alternative is to work within prosecutors' offices, to create incentives for good performance. This symposium essay explores a neglected toolbox that head prosecutors can use to influence line prosecutors: compensation and other rewards. Rewards …

The Illegality Of Contingency-Fee Arrangements When Prosecuting Public Natural Resource Damage Claims And The Need For Legislative Reform, Julie E. Steiner

Faculty Scholarship

Private attorneys are entering into contingency-fee based special counsel agreements with states, territories and tribes, to bring public natural resource damage (NRD) claims. Under this agreement, special counsel brings a NRD action on behalf of the public and fronts the litigation costs, but deducts a percentage of the public's damage recovery to pay the attorney's contingency fee; the remainder goes into a fund to be allocated by the government's NRD trustee. Because NRD claims implicate gargantuan damage awards, the legality of depleting such a damage award by a substantial percentage to pay an attorney's fee is a significant issue that …

Fee-Shifting Rules In Litigation With Contingency Fees, Kong-Pin Chen

Kong-Pin Chen

This article theoretically compares the British and American fee-shifting rules in their influences on the behavior of the litigants and the outcomes of litigation. We build up a comprehensive litigation model with asymmetric information and agency costs, which makes it possible to make comparison on a broad arrays of issues in a single unified framework. We then solve for the equilibria under both American and British rules, and thereby compare their equilibrium settlement amounts and rates, expenditures incurred in trials, as well as the plaintiff’s chances of winning and incentive to sue. The theoretical results are broadly consistent with existing …

An Empirical Examination Of The Equal Protection Challenge To Contingency Fee Restrictions In Medical Malpractice Reform Statutes, Casey L. Dwyer

Duke Law Journal

No abstract provided.

"Expense" Deductions On "Personal" Gross Income, Deborah A. Geier

Law Faculty Articles and Essays

Prof. Deborah A. Geier responds to Tom Daley's letter on the taxation of contingent attorney fees.

The Allocation Problem In Multiple-Claimant Representations, Paul H. Edelman, Richard A. Nagareda, Charles Silver

Vanderbilt Law School Faculty Publications

Multiple-claimant representations-classa ctions and other group lawsuits-pose two principal-agent problems: Shirking (failure to maximize the aggregate recovery) and misallocation (distribution of the aggregate recovery other than according to the relative value of claims). Clients have dealt with these problems separately, using contingent percentage fees to motivate lawyers to maximize the aggregate recovery and monitoring devices (disclosure requirements, client control rights, and third-party review) to encourage appropriate allocations. The scholarly literature has proceeded on the premise that monitoring devices are needed to police misallocations, because the fee calculus cannot do the entire job. This paper shows that this premise is mistaken …

Ethics And Professional Responsibility—Contingency Fees—An Attorney's Right Of Recovery When Discharged From A Contingent Fee Contract In Arkansas. Salmon V. Atkinson, 355 Ark., 137 S.W.3d 383 (2003), Eric C. Freeby

University of Arkansas at Little Rock Law Review

No abstract provided.

Shift Happens: Pressure On Foreign Attorney-Fee Paradigms From Class Actions, Thomas D. Rowe Jr.

Duke Journal of Comparative & International Law

No abstract provided.

Contingent Fees And Tort Reform: A Reassessment And Reality Check, Elihu Inselbuch

Law and Contemporary Problems

No abstract provided.

Lawyers Seeking Clients, Clients Seeking Lawyers: Sources Of Contingency Fee Cases And Their Implications For Case Handling, Jayanth K. Krishnan, Herbert M. Kritzer

Articles by Maurer Faculty

This paper examines the ways that Wisconsin contingency fee lawyers obtain clients. It draws upon a survey of Wisconsin practitioners, three months of observation in lawyers' offices, semi-structured interviews with practitioners, a survey of recipients of direct mail solicitations from Wisconsin contingency fee practitioners, and a survey of Wisconsin residents about whether they had predilections concerning which lawyer or law firm they would use should they have an injury claim. The analyses show that most lawyers draw the vast majority of their cases from a combination of referrals from prior clients, referrals from other lawyers (mostly uncompensated referrals), and repeat …

Principled Opinions, Susan P. Koniak

Faculty Scholarship

Professor Brickman is not pleased. Indeed, he is outraged, if the sound and fury of his article is to be taken at face value. He and twenty-five others, lawyers and legal educators, sent the American bar Association Standing Committee on Ethics and Professional Responsibility (the "Committee" or "Ethics Committee") a letter (the "Letter") asking for an opinion. They got one which Professor Brickman describes as "wrong as a matter of ethics law, malevolent as a matter of public policy, disingenuous in its presentation, unfounded it [its] critical assumptions ... and blatantly self-interested in elevating lawyers' financial interests above their traditional …

Aba Regulation Of Contingency Fees: Money Talks, Ethics Walks, Lester Brickman

Fordham Law Review

No abstract provided.

Principled Opinions: Response To Brickman, Susan P. Koniak

Fordham Law Review

No abstract provided.

The Effects Of Fee Shifting On The Settlement Rate: Theoretical Observations On Costs, Conflicts, And Contingency Fees, John J. Donohue Iii

Law and Contemporary Problems

Litigation costs could be conceived as a bribe to parties to reach a contractual agreement settling their dispute. The question of what effect fee-shifting rules might have on the rate of settlements in lawsuits is examined.