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Contingent-Fee Lawyers and Their Clients: Settlement Expectations, Settlement Realities, and Issues of Control in the Lawyer-Client Relationship

Published online by Cambridge University Press:  27 December 2018

Herbert M. Kritzer
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Abstract

One hallmark of Herb Jacob's analyses of criminal courts—extensive consideration of the interaction among actors—was less pronounced in his work on civil justice, which was more focused on institutions and the politics behind the laws that those institutions administered. In the research I report here, my emphasis is squarely on the actors in the civil justice process: the relationship between contingency-fee lawyers and clients, and how that relationship plays out in the settlement process. In Felony Justice, Herb, and his coauthor James Eisenstein, focus on the courtroom workgroup as a case-processing (and, largely, case-settling) machine; clients are relatively peripheral. In my account, clients, both current and future, are extremely important in how the lawyer works to settle cases. In the criminal court workgroup, lawyers do not worry about where future clients will come from because police secure them. In contrast, the contingency-fee lawyer has constant concerns about future clients, and I argue, this concern provides a control over lawyers that prior analyses of the contingency fee have largely missed. This dynamic also may explain why the courtroom workgroups, or court communities, found in the criminal courts do not appear to exist in the civil justice system.

Type
Symposium: Special Issue in Honor of Herbert Jacob
Information
Law & Social Inquiry , Volume 23 , Issue 4 , Fall 1998 , pp. 795 - 821
Copyright
Copyright © American Bar Foundation, 1998 

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References

All-Industry Research Advisory Council (AIRAC). 1989. Compensation for Automobile Injuries in the United States. Oak Brook, Ill.: AIRAC.Google Scholar
Bailis, Daniel S., and MacCoun, Robert J. 1996. Estimating Liability Risks with the Media as Your Guide. Judicature 80:64–67.Google Scholar
Blumberg, Abraham. 1967. The Practice of Law as a Confidence Game: Organizational Cooptation of the Profession. Law & Society Review 1:15–39.Google Scholar
Cain, Maureen. 1979. The General Practice Lawyer and the Client: Towards a Radical Conception. International Journal of the Sociology of Law 7: 331–54.Google Scholar
Casper, Jonathan D. 1972. American Criminal Justice: The Defendant's Perspective. Englewood Cliffs, N.J.: Prentice-Hall.Google Scholar
Chase, Oscar G. 1995. Helping Jurors Determine Pain and Suffering Awards. Hofstra Law Review 27:763–90.Google Scholar
Clermont, Kevin M., and Currivan, John D. 1978. Improving on the Contingent Fee. Cornell Law Review 63:529–639.Google Scholar
Daniels, Stephen, and Martin, Joanne. 1995. Civil Juries and the Politics of Reform. Evanston, Ill.: Northwestern University Press.Google Scholar
Daniels, Stephen, and Martin, Joanne. 1997 Client Quest: Markets, Professional Ideology, and the Plaintiffs' Bar in Texas. Researching Law: An ABF Update 8(4):4–5.Google Scholar
Dolbeare, Kenneth M. 1967. Trial Courts in Urban Politics: State Court Policy Impact and Functions in a Local Political System. New York: John Wiley & Sons.Google Scholar
Dolbeare, Kenneth M. 1969. The Federal District Courts and Urban Public Policy: An Exploratory Study, 1960–1967. In Frontiers of Judicial Research, ed. Grossman, Joel and Tanenhaus, Joseph. New York: John Wiley & Sons.Google Scholar
Eisenstein, James, and Jacob, Herbert. 1977. Felony Justice: An Organizational Analysis of Criminal Courts. Boston: Little, Brown.Google Scholar
Eisenstein, James Flemming, Roy B., and Nardulli, Peter F. 1988. The Contours of Justice: Communities and their Courts. Boston: Little, Brown.Google Scholar
Felstiner, William L. F., and Sarat, Austin. 1992. Enactments of Power: Negotiating Reality and Responsibility in Lawyer-Client Interactions. Cornell Law Review 77:1147–98.Google Scholar
Flemming, Roy B. 1986. The Client Game: Defense Attorney Perspectives on Their Relations with Criminal Clients. American Bar Foundation Research Journal 1986:253–77.Google Scholar
Flood, John A. 1987. Anatomy of Lawyering: An Ethnography of a Corporate Law Firm. Ph.D. diss., Northwestern University.Google Scholar
Genn, Hazel. 1988. Hard Bargaining: Out of Court Settlement in Personal Injury Actions. New York: Oxford University Press.Google Scholar
Hay, Bruce L. 1996. Contingent Fees and Agency Costs. Journal of Legal Studies 25:503–33.Google Scholar
Heinz, John P., and Laumann, Edward O. 1982. Chicago Lawyers: The Social Structure of the Bar. New York: Russell Sage Foundation.Google Scholar
Hosticka, Carl J. 1979. We Don't Care About What Happened; We Only Care About What is Going to Happen: Lawyer-Client Negotiations of Reality. Social Problems 26:599–610.Google Scholar
Hunting, Roger B., and Neuwirth, Gloria S. 1962. Who Sues in New York City? A Study of Automobile Accident Claims. New York: Columbia University Press.Google Scholar
Insurance Research Council (IRC). 1994. Auto Injuries: Claiming Behavior and Its Impact on Insurance Costs. Oak Brook, Ill.: Insurance Research Council.Google Scholar
Jacob, Herbert. 1969. Debtors in Court: The Consumption of Governmental Services. Chicago: Rand McNally.Google Scholar
Jacob, Herbert. 1988. The Silent Revolution: Transformation of Divorce Law in the United States. Chicago: University of Chicago Press.Google Scholar
Johnson, Earl Jr. 19801981. Lawyer's Choice: A Theoretical Appraisal of Litigation Investment and Decisions. Law & Society Review 15:567–610.Google Scholar
Kritzer, Herbert M. 1991. Let's Make a Deal: Understanding the Negotiation Process in Ordinary Litigation. Madison: University of Wisconsin Press.Google Scholar
Kritzer, Herbert M. 1997a. Investing in Cases: Can You Profit from Contingency Fee Work. Wisconsin Lawyer 70(8):10–13, 44–45.Google Scholar
Kritzer, Herbert M. 1997b. The Wages of Risk: The Returns of Contingency Fee Legal Practice. DePaul Law Review 47:267–319.Google Scholar
Kritzer, Herbert M. 1998. Lawyers Seeking Clients, Clients Seeking Lawyers: Sources of Contingency Fee Cases and Their Implications for Case Handling. Unpublished manuscript.Google Scholar
Kritzer, Herbert M., and Zemans, Frances K. 1993. Local Legal Culture and the Control of Litigation. Law & Society Review 27:535–58.Google Scholar
Mann, Kenneth. 1985. Defending White-Collar Crime: A Portrait of Attorneys at Work. New Haven, Conn.: Yale University Press.Google Scholar
Marter, Sarah S., and Weisberg, Herbert I. 1992. Medical Expenses and the Massachusetts Automobile Tort Reform Law: A First Review of 1989 Bodily Injury Liability Claims. Journal of Insurance Regulation 10:462–514.Google Scholar
Mather, Lynn M. 1974. The Outsider in the Courtroom. In The Outsider in the Court-room, ed. Jacob, Herbert. Beverly Hills, Calif.: Sage Publications.Google Scholar
Mather, Lynn M. 1979. Plea Bargaining on Trial: The Process of Criminal Case Disposition. Lexington, Mass.: Lexington Books.Google Scholar
Mather, Lynn, Maiman, Richard J., and McEwen, Craig A. 1995. “The Passenger Decides on the Destination and I Decide on the Route”: Are Divorce Lawyers “Expensive Cab Drivers International Journal of Law and the Family 9:286–310.Google Scholar
McConville, Mike, Hodgson, Jacqueline, Bridges, Lee, and Pavlovic, Anita. 1994. Standing Accused: The Organisation and Practices of Criminal Defence Lawyers in Britain. Oxford, England: Clarendon Press.Google Scholar
McIntyre, Lisa J. 1987. The Public Defender: The Practice of Law in the Shadows of Repute. Chicago: University of Chicago Press.Google Scholar
Miller, Geoffrey P. 1987. Some Agency Problems in Settlement. Journal of Legal Studies 16:189–215.Google Scholar
Nardulli, Peter F. 1986. “Insider's” Justice: Defense Attorneys and the Handling of Felony Cases. Journal of Criminal Law & Criminology 77:379–417.Google Scholar
Nelson, Robert. 1988. Partners with Power: Social Transformation of the Large Law Firm. Berkeley and Los Angeles: University of California Press.Google Scholar
Neustadter, Gary. 1986. When Lawyer and Client Meet: Observations of Interviewing and Counseling Behavior in the Consumer Bankruptcy Law Office. Buffalo Law Review 35:177–284.Google Scholar
Reed, John P. 1969. The Lawyer-Client: A Managed Relationship Academy of Management Journal 12:67–80.Google Scholar
Rosenthal, Douglas E. 1974. Lawyer and Client: Who's in Charge? New York: Russell Sage.Google Scholar
Ross, Laurence H. 1980. Settled out of Court: The Social Process of Insurance Claims Adjustment. 2d ed. New York: Aldine.Google Scholar
Sarat, Austin, and Felstiner, William L. F. 1995. Divorce Lawyers and Their Clients: Power and Meaning in the Legal Process. New York: Oxford University Press.Google Scholar
Schwartz, Murray L., and Mitchell, Daniel J. B. 1970. Economic Analysis of the Contingent Fee in Personal Injury Litigation. Stanford Law Review 22:1125–62.Google Scholar
Seron, Carroll. 1996. The Business of Practicing Law: The Work Lives of Solo and Small-Firm Attorneys. Philadelphia: Temple University Press.Google Scholar
Shapard, John. 1995. Likely Consequences of Amendments to Rule 68, Federal Rules of Civil Procedure. Washington: Federal Judicial Center.Google Scholar
Simon, William H. 1991. Lawyer Advice and Client Autonomy: Mrs. Jones's Case. Maryland Law Review 50:213–26.Google Scholar
Skolnick, Jerome. 1967. Social Control in the Adversary System. Journal Conflict Resolution 11:52–70.Google Scholar
Southworth, Ann. 1996. Lawyer-Client Decisionmaking in Civil Rights and Poverty Practice: An Empirical Study of Lawyers' Norms. Georgetown Journal of Legal Ethics 9:1101–55.Google Scholar
State Bar of Wisconsin. 1988. Survey of Wisconsin Personal Injury Verdicts. Madison: State Bar of Wisconsin.Google Scholar
Sweet, James A. 1997. Report on Survey of Accident Victims (Conducted for the Wisconsin Board of Attorneys Professional Responsibility). Madison: University of Wisconsin Survey Center.Google Scholar
Texas Department of Insurance, n.d. The 1994 Texas Liability Insurance Closed Claim Annual Report. Austin, Tex.: Texas Department of Insurance.Google Scholar
Van Hoy, Jerry. 1995. Selling and Processing Law: Legal Work at Franchise Law Firms. Law & Society Review 29:703–29.Google Scholar
Van Hoy, Jerry. 1997. Getting Clients: Supply and Demand Among Plaintiffs Personal Injury Attorneys in Indiana. Paper presented at 1997 Annual Meeting of the Law & Society Association, St. Louis, Missouri, 26 May 26–2 June.Google Scholar
Williams, Gerald. 1983. Legal Negotiation and Settlement. St. Paul, Minn.: West.Google Scholar
Wolfram, Charles. 1986. Modern Legal Ethics. St. Paul, Minn.: West.Google Scholar