The contingency fee was an established feature of the American legal scene by the mid-nineteenth century. In his study of personal injury litigation in New York City, Randolph Bergstrom found the contingency fee little used in 1870, but much in use by 1890, and pervasive by 1910.2 From its inception, the contingency fee has been accompanied by accusations of illegitimacy. Attacks on the contingency fee have recurred with regularity, often in conjunction with campaigns against plaintiffs' lawyers for degrading professional standards by fomenting meritless litigation, ambulance chasing, and accident faking. 3 Denigration of the contingency fee has figured prominently in the contemporary assault on the civil justice system that started in the late 1970s. Critics who behold a litigation explosion, excessive litigiousness, runaway juries, too many lawyers and other evils, identify the contingency fee as an important ingredient of the mess. The Wall Street Journal urges us that the contingency fee is "the engine driving much of the liability explosion of recent decades."4 Earlier opposition to the contingency fee emphasized incentives to overzealous representation and violation of the dignity and restraint proper to professionals.s The primary thrust of contemporary criticism is on windfalls to lawyers and promotion of excessive claiming, especially frivolous and nuisance claims which burden the economy.6 But some critics maintain the classic objection that the contingency fee induces overzealous representation though excessive identification with client interests.7 The first part of this Article will analyze public perceptions of the contingency fee, as manifested in public opinion surveys, referenda, and jokes about lawyers' fees. After a brief analysis of some current proposals to "reform" the contingency fee, I relate the contemporary operation of the contingency fee to the structure of plaintiffs' firms (Part II). In Part III, I assess the contribution of the contingency fee to the maintenance of an accessible and proficient plaintiffs' bar and suggest that it needs to be supplemented by other devices in order to ensure effective representation of individuals in a legal world increasingly dominated by corporate entities.
