Both the United States Constitution and the Arkansas Constitution provide that every citizen has the right to free access to the courts and to a jury trial. Having a Constitutional right to use the courts to seek justice is great, of course—but having a right to seek justice in the courts and actually being able to afford doing so are two dramatically different things. Litigation is expensive—very expensive. A complex medical malpractice suit may cost over $100,000.00 in expenses alone—filing fees, expert witness fees, court reporter charges, preparation of exhibits, investigators—even before the cost of the attorney’s services are figured in. An attorney with the skills and the knowledge to develop a complex medical negligence case would easily command $500 an hour for his time.
Imagine that you are a working class family whose whose child has been crippled by a doctor’s mistake. Every dollar of your savings is being spent on medical care and expenses to take care of the child. Even well-to-do families don’t have $50,000 they can invest in a lawsuit. There is not even the slightest possibility that they could afford either the expenses or the attorneys necessary to investigate and prosecute their case, and no chance at all that they would prevail without sophisticated legal help.
Contingent fee arrangements make it possible for average people to take on a rich defendant. A typical contingent fee contract does two things: first, it provides that the lawyer does not get paid unless he is successful. Second, it provides that the lawyer who takes the case will pay the expenses of the case, and that the client will not have to pay the expenses until the case is over—and only if there is a recovery for the client. That means that people who otherwise could not afford to assert a claim in court can do so. It also means that lawyers who take cases on a contingent fee basis are gambling their time and their money on the outcome of their client’s case.
Because of the contingent fee system, average citizens can take on powerful doctors and their insurance companies who could otherwise bury them in expense and legal fees, making a legal victory impossible. Bad doctors and their insurance companies hate contingent fees for that very reason. Eliminate the contingent fee contract and no average person could ever afford to sue a doctor.