Will tort reform capping contingency fees limit plaintiffs' ability to recover for their injuries? If self-representation is a viable option, contingency fees may have less of an impact on access than one might otherwise expect. Conversely, if tort recoveries flow only or mostly to plaintiffs who either actually hire lawyers or can credibly threaten to do so, caps on contingency fees may make it difficult or impossible for many victims to obtain justice. This article explores the issue by looking at patterns of representation among claimants who received payments for bodily injury in Texas during 1988-2005. Over an extended period and across multiple lines of coverage, an overwhelming majority of successful bodily injury claimants in Texas decided they needed a lawyer. When claims can be resolved without the initiation of formal litigation, a small percentage of claimants decide to represent themselves, because these claimants have "lawyer-worthy" claims and can credibly threaten to "lawyer up" unless paid amounts they consider satisfactory. Only claimants who can credibly threaten to litigate successfully can extract settlement payments, and claimants who cannot find lawyers cannot make this threat.
Charles Silver and David A. Hyman,
Access to Justice in a World Without Lawyers: Evidence from Texas Bodily Injury Claims,
37 Fordham Urb. L.J. 357
Available at: http://ir.lawnet.fordham.edu/ulj/vol37/iss1/12