f/k/a archives . . . real opinions & real haiku

March 20, 2006

practice, practice, toil and trouble (updated)

Filed under: pre-06-2006 — David Giacalone @ 6:32 pm

Your editor got waylaid today, over at The Practice, responding to
a post called “The Contingency Fee Under Attack,” by p/i lawyer
Jonathan Stein, who purports to care about the image of lawyers.
I might have ignored the post, or left a few sentences and links to
articles here, but this paragraph was part of Jonathan’s piece:

questionDudeSN
“Finally, and this is what really set me off on this, the contin-
gency fee is under attack, and it is under attack by people
who just don’t get it. For example, there are some poetry
writing attorneys, who are not even practicing and have never
handled PI work, but argue that the contingency fee (sometimes
called the “standard contingency fee” which is garbage by itself)
is unfair. Of course, he also criticizes value billing. Interestingly,
I do not see him criticizing the hourly fee, which in some instances
is $500 per hour or more. I guess he is either too old to come to
terms with anything other than the hourly fee, too lazy to analyze
the contingency fee in context, or too afraid of being left behind
by the times.”
Since Mr. Stein was clearly talking about me, but didn’t even bother to
link to my materials about the standard contingency fee or value billing,
or refer to me by name, I felt that I needed to give a thorough response
at his site.  [update (March 22, 2006): By the way, Mr. Stein insists that
there are no insults in the above paragraph.]
                                                                                           boy writing neg
I left two rather lengthy Comments there.  Habitual readers of this site,
hopefully, do not think of me as being too lazy and afraid, a part of the
vast tort re-form conspiracy, nor incapable of capable analysis.  You also 
know there’s only one poetry-writing lawyer pundit here.  All in all, an an-
noying incident, brought on it seems, by my disagreement with Jonathan
Stein’s position that “Heavy Hitter” advertising should be banned as mis-
leading and undignified.
afterthought (March 21, 2006): If you happen to be interested
in my pro-client take on contingency fees and value billing, and
would rather not learn about them at Jonathan Stein’s place, there
are plenty of links on the Fees Page of the ethicalEsq Archives. 
I’m not against the contingency fee.  I merely believe that clients have
these Rights when entering into such an agreement and that lawyers
should base the percentage fee on the likely risk they are taking, and
not apply a standard rate to every client.  Similarly, I’m not against alter-
natives to hourly billing, but I am against those who use the mantra
of Value Billing as a ruse to charge clients more than they would
be charged under hourly billing.  See, e.g., here and here. 
complaint billF
My feelings that the legal profession is too greedy and that too many
lawyers charge far more than they are worth can be found through-
out this site, and in comments across the internet. [see, e.g.,
Since I have already exceeded my agita-quota for this Season,
call a libel lawyer, please let me know.

tiny check  Law Practice Tipper Jim Calloway decided to include
Stein’s Contingency Fee post in Blawg Review #49
today, while snubbing f/k/a‘s workproduct from last
week [– see update immediately below.] Nonetheless,
we urge you to cull the offerings in Blawg Review #49 —
if only, to keep in the habit for our hosting gig on April 10th
and George Wallace’s bi-blogal feat on April 3rd.
update (April 7, 2006):  I just learned from Jim Calloway
that he had tried to include a post from f/k/a in BR49, but
ran into the problem, at the time he had to post his edition,
 of our webserver being down.  He thought he had a bad link
and could not get a correct one due to the webserver problem.
We should have known Jim is a straight-shooter and apologize
for any suggestion he might have had ulterior motives.  It would,
of course, have been nice to have been included once Jim
learned the link was good and the webserver functioning. That
has not happened.

raindropS It’s been a long day.  Let’s celebrate the arrival of Spring,
seen through the eyes of peggy lyles:   
moonlight
the winter look
of baby’s breath
in bloom
hand prints

paw prints
across the moon roof
cats in love

a whistle
cut from bamboo
the long day

 

old homeplace . . .
around the pear tree
fragrant light

spring sunbeam
the baby’s toes
spread apart

Pinecone  (The North Georgia Haiku Society)
                                                                                                                                    one third gray

9 Comments

  1. David –

    Wow. A libel attorney? You think I libeled you? And here I heard nice things about you and that you were really a good guy.

    Let me address your concerns, one at a time again.

    First, I do not purport to care about the image of lawyers. I actually do. Hence, my constant posting about that topic. Go spend a good couple of hours at the Practice and you will see that.

    Second, this was not brought on by your disagreement with me about the Heavy Hitter. You are entitled to your position on that, and I actually respect you for taking one. This is brought on by your theory about PI attorneys and our fees.

    My observations are that: 1 – you have never handled PI cases; 2 – you do not know the first thing about handling a PI case; 3 – you couldn’t evaluate liability, damages or insurance on a PI case. You talk about likely risk, but it is something that you are not qualified, in my opinion, to analyze. Just as I am not qualified to tell you whether any of your Haikus are actually Haikus, you are not in a position to tell me the likely risk in a case. I have provided real, concrete examples of my cases, and your response is to ignore that.

    Yet, despite all of this, you tell us that our fees are unfair. You tell us that consumers have this “bill of rights” that you just made up. You have no basis for making these comments because it is outside of your expertise. If you would like to have a fair, open, honest debate about fees, feel free to let me know. I will even arrange it the next time I am in NY and we can invite members of the public and the bar to come ask questions. Are you up for it?

    Jonathan

    Comment by Jonathan — March 21, 2006 @ 8:15 pm

  2. David –

    Wow. A libel attorney? You think I libeled you? And here I heard nice things about you and that you were really a good guy.

    Let me address your concerns, one at a time again.

    First, I do not purport to care about the image of lawyers. I actually do. Hence, my constant posting about that topic. Go spend a good couple of hours at the Practice and you will see that.

    Second, this was not brought on by your disagreement with me about the Heavy Hitter. You are entitled to your position on that, and I actually respect you for taking one. This is brought on by your theory about PI attorneys and our fees.

    My observations are that: 1 – you have never handled PI cases; 2 – you do not know the first thing about handling a PI case; 3 – you couldn’t evaluate liability, damages or insurance on a PI case. You talk about likely risk, but it is something that you are not qualified, in my opinion, to analyze. Just as I am not qualified to tell you whether any of your Haikus are actually Haikus, you are not in a position to tell me the likely risk in a case. I have provided real, concrete examples of my cases, and your response is to ignore that.

    Yet, despite all of this, you tell us that our fees are unfair. You tell us that consumers have this “bill of rights” that you just made up. You have no basis for making these comments because it is outside of your expertise. If you would like to have a fair, open, honest debate about fees, feel free to let me know. I will even arrange it the next time I am in NY and we can invite members of the public and the bar to come ask questions. Are you up for it?

    Jonathan

    Comment by Jonathan — March 21, 2006 @ 8:15 pm

  3. If poetry can screw up the thinking and writing process to the point where the gibberish in your post is the result I am concerned about lawyers reading the stuff.

    You need an editor — badly.

    I also agree with Jonathan’s premise. People who do not prepare and prosecute personal injury cases often have no appreciation of the “risk – benefit” underpinning of the contingency fee arrangement. I would add that it is the contingency fee that channels the skill, time, resources, motivation and greediness of the trial lawyer to serve the best interests of the client.

    Comment by Greedy Trial Lawyer — March 22, 2006 @ 6:01 am

  4. If poetry can screw up the thinking and writing process to the point where the gibberish in your post is the result I am concerned about lawyers reading the stuff.

    You need an editor — badly.

    I also agree with Jonathan’s premise. People who do not prepare and prosecute personal injury cases often have no appreciation of the “risk – benefit” underpinning of the contingency fee arrangement. I would add that it is the contingency fee that channels the skill, time, resources, motivation and greediness of the trial lawyer to serve the best interests of the client.

    Comment by Greedy Trial Lawyer — March 22, 2006 @ 6:01 am

  5. Golly, Greedy, You think I write gibberish.  Guess I better pack up my pixels and go home.  One good thing about Jonathan: he doesn’t hide behind anonymity when he leaves a negative comment.
    Yes, the contingency fee is often the key to the Courthouse.  But, brass keys work fine, they shouldn’t have to be golden keys.
    I just wrote the following Comment in response to Jonathan’s Comment here.  Since it addresses the issue of my being unfit to raise these issues, I’ll repeat it here for your convenience. 

    You seem to be saying that only the fox can guard the hen house against foxes.  The notion that only plaintiff’s personal injury lawyers can offer opinions on the fee arrangements of plaintiff’s personal injury lawyers is so silly that I can only assume (1) you have no defense on the merits, and (2) you believe no future client of yours will ever go on the internet to learn more about you.  Real lawyers, law professors, and judges are capable of applying general principles to particular, new facts.  I had to do it all the time as an FTC attorney, law clerk and adjunct professor.  (Oh, yes, and even in the handful of personal injury cases that I worked on while an associate in a general practice law firm — including one where I got the largest frivolousness award to date in our state against defendants who made meritless claims against our client.)
    Of course, I am helped in making my assertion (that contingency fee percentages should vary according to the likely risks being assumed by the p/i lawyer) by the fact that ATLA has said so, and Public Citizen (which is very much in the p/i business) has said so, and several ABA ethics opinions have said so, as have thoughtful law review articles.  Sadly, Public Citizen and the ABA also note that the principles have been mostly “honored in the breach.”   Because I have a weblog that allows me to voice my opinion and inform consumers of their rights, I feel an ethical duty to do so, despite having to deal with widespread ugliness, and false charges about my motives, from the p/i bar.   In my small way, I want to give the hens as much protection as possible from the foxes — especially since the foxes are constantly presenting themselves as the hens’ best friends.
    No p/i lawyer can assess every case correctly.  However, an experienced and successful p/i lawyer is more than capable of consistently distinguishing correctly among the real losers, the highly-likely winners, the medium risks, and the highest risk cases.  Those who can’t, need to consider another field of law or a new career, because they are not capable of giving their clients good advice and fair rates, and because they might find it quite difficult to achieve their desired level of income.

    p.s. Whether or not anyone ever told me how much to charge my clients is irrelevant to the merits of my argument.  Of course, most p/i lawyers who saw what I was charging in my decade as a solo practitioner and divorce mediator would have called me a sucker.  Ditto if they learned that I took a prestigious law degree and went into public service as a consumer advocate — and then made far less money when I left to go into private practice.  My choice.

    Comment by David Giacalone — March 22, 2006 @ 10:34 am

  6. Golly, Greedy, You think I write gibberish.  Guess I better pack up my pixels and go home.  One good thing about Jonathan: he doesn’t hide behind anonymity when he leaves a negative comment.
    Yes, the contingency fee is often the key to the Courthouse.  But, brass keys work fine, they shouldn’t have to be golden keys.
    I just wrote the following Comment in response to Jonathan’s Comment here.  Since it addresses the issue of my being unfit to raise these issues, I’ll repeat it here for your convenience. 

    You seem to be saying that only the fox can guard the hen house against foxes.  The notion that only plaintiff’s personal injury lawyers can offer opinions on the fee arrangements of plaintiff’s personal injury lawyers is so silly that I can only assume (1) you have no defense on the merits, and (2) you believe no future client of yours will ever go on the internet to learn more about you.  Real lawyers, law professors, and judges are capable of applying general principles to particular, new facts.  I had to do it all the time as an FTC attorney, law clerk and adjunct professor.  (Oh, yes, and even in the handful of personal injury cases that I worked on while an associate in a general practice law firm — including one where I got the largest frivolousness award to date in our state against defendants who made meritless claims against our client.)
    Of course, I am helped in making my assertion (that contingency fee percentages should vary according to the likely risks being assumed by the p/i lawyer) by the fact that ATLA has said so, and Public Citizen (which is very much in the p/i business) has said so, and several ABA ethics opinions have said so, as have thoughtful law review articles.  Sadly, Public Citizen and the ABA also note that the principles have been mostly “honored in the breach.”   Because I have a weblog that allows me to voice my opinion and inform consumers of their rights, I feel an ethical duty to do so, despite having to deal with widespread ugliness, and false charges about my motives, from the p/i bar.   In my small way, I want to give the hens as much protection as possible from the foxes — especially since the foxes are constantly presenting themselves as the hens’ best friends.
    No p/i lawyer can assess every case correctly.  However, an experienced and successful p/i lawyer is more than capable of consistently distinguishing correctly among the real losers, the highly-likely winners, the medium risks, and the highest risk cases.  Those who can’t, need to consider another field of law or a new career, because they are not capable of giving their clients good advice and fair rates, and because they might find it quite difficult to achieve their desired level of income.

    p.s. Whether or not anyone ever told me how much to charge my clients is irrelevant to the merits of my argument.  Of course, most p/i lawyers who saw what I was charging in my decade as a solo practitioner and divorce mediator would have called me a sucker.  Ditto if they learned that I took a prestigious law degree and went into public service as a consumer advocate — and then made far less money when I left to go into private practice.  My choice.

    Comment by David Giacalone — March 22, 2006 @ 10:34 am

  7. David –

    I assume your use of italics on “real lawyers” is some shot at me. That is fine, but at least I am still practicing. My clients can go online and learn all they want about me, including my advocacy for adjusters to treat people well.

    You can comment on PI fees all you want, but you cannot tell us how to assess a case. You dont know how to do it. I dont know how much clearer I can make it. But you still wont take me up on my offer of a debate. How about this? I will give you fact patterns from closed cases, ask you to assess them, and then you share with us what you would have charged the client. I will then share the actual outcome and the fee charged. Of course, I will do this with the client’s consent. You up for that?

    Comment by Jonathan — March 22, 2006 @ 1:33 pm

  8. David –

    I assume your use of italics on “real lawyers” is some shot at me. That is fine, but at least I am still practicing. My clients can go online and learn all they want about me, including my advocacy for adjusters to treat people well.

    You can comment on PI fees all you want, but you cannot tell us how to assess a case. You dont know how to do it. I dont know how much clearer I can make it. But you still wont take me up on my offer of a debate. How about this? I will give you fact patterns from closed cases, ask you to assess them, and then you share with us what you would have charged the client. I will then share the actual outcome and the fee charged. Of course, I will do this with the client’s consent. You up for that?

    Comment by Jonathan — March 22, 2006 @ 1:33 pm

  9. Stein has absolute no room to talk. Just go into craigslist and look at all his ads and his consistent posting in the legal forum looking for clients. he make everyone in the legal profession look bad.

    Comment by none — June 2, 2007 @ 7:25 am

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