Document Type

Article

Abstract

Despite the checkered history of contingency fees in the practice of law,

attorneys often claim that such fee arrangements perfectly align the interests of

lawyer and client. After all, contingency fee lawyers proclaim in TV ad after TV

ad, “we don’t get paid unless you win.” That superficial logic does not withstand

economic scrutiny. Utilizing a behavioral economics lens, this Article

demonstrates that contingency fee arrangements give attorneys excessive

incentives to settle cases that their clients would be better off taking all the way

through trial. In addition to highlighting this undertheorized problem in law, we

offer normative recommendations to help alleviate the conflict. Ultimately, we

need to devise a hybrid fee system that provides compensation proportionate to

how hard an attorney works, provides incentives for the best possible outcome for

her client (whether obtained at trial or via settlement), and ensures that low-

income plaintiffs can still obtain access to the doors of justice.

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