Legal Ethics and Reform

The Costs of Civil Litigation here and abroad

The adversary system demands that two lawyers become not only fully conversant with the facts of a case and the evidence supporting those facts, but it also requires that they carefully consider what "tricks" the opposing counsel is likely to use. This makes the preparation of a trial under the adversary system an expensive undertaking. Lawyers with their office expense, malpractice insurance, taxes, regulatory fees, not to mention personal salary needs are lucky to make ends meet charging $75 or $100 per hour. Eighty hours can easily be consumed moving a very simple case through to the end of trial.

Considering that the average household income in America is about $31,000, it quickly becomes apparent that few people of average means can consider availing themselves of their constitutionally guaranteed right to have their dispute heard and decided by a jury. In fact, experts have estimated that only 5% of the American population has enough wealth to pursue dispute resolution from filing a lawsuit through a trial.

One often hears that contingency fee arrangements substitute for hourly billing arrangements for people of average means. This is true where relatively large amounts are at issue and ultimate collection of the judgement is assured. But if a dispute involves $10,000 or $20,000, which is an amount that a family earning $31,000 per year is likely to be fighting about, a trial by one's peers will cost more than is at issue. In these cases the lawyers get together behind closed doors cut a deal and force their clients to accept it whether it is fair or not.

By contrast, in Germany, which follows the inquiry system of law, it is considered a societal good to have all disputes large and small properly decided in open court. So in Germany large cases are charged an extra fee to fund an account which subsidizes the costs of smaller cases. The system in Germany is cheaper overall because only one court appointed lawyer is involved in a case. He is charged with gathering the facts and presenting them to judge and jury. The fact that only one lawyer is involved also keeps costs down because he doesn't have to worry about countering "tricks" from the other side. Although both sides are allowed to hire their own lawyer to ask additional questions at trial, few people actually incur this expense, particularly on smaller cases.

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