Today, Matt Homann of the [non]billable hour is reprising last week's "Five by Five" feature, in which five lawyers (including me) responded to this question: "If you had the power to change five things about the practice of law, what would you change?" This week, several others are answering the call.
There's been a lot to think about in the posts that have been running on Matt's site. I hope that others will continue the discussion. For example, what about Scheherazade Fowler's call to "abolish the bar exam"? I'll go out on a limb and predict it's not going to happen in my lifetime, but it's certainly an idea worth discussing.
And how about Ernie the Attorney's first idea for changing the practice of law: "Modify the contingency fee system to eliminate the conflict of interest that often arises when an attorney has a stake in the outcome of a case that is dependent on physical injury to a client or the client's relative."
As a lawyer who is often paid on a contingency fee basis, I must admit this idea left me baffled. A lawyer who's paid on a contingency fee gets more if a case settles for a larger amount, but so does the client--so there's no inherent conflict of interest in this situation. I think Ernie might be suggesting something more sinister, namely, that the hope of a larger fee might lead a plaintiffs' lawyer to "invent" an injury that doesn't exist.
If that's the problem, there are ways of solving it without modifying the contingency fee system. (How does Ernie suggest it be modified, anyway?) And note that the problem can happen on either side of a case: a civil defense lawyer might help his client "invent" a defense in the hopes that he'll get more business from the client. Why pick on plaintiffs' lawyers? Let's hear some more from Ernie!