Fee Shifting, the Great Leveler

By Evan L. Goldman

New Jersey Law Journal, Vol. CLXXXVII, No. 10, Index 819, March 5, 2007

One of the greatest summations of all time occurred not in a real courtroom, but on a Hollywood sound stage for “To Kill a Mockingbird.” Yet, in his closing argument on behalf of an innocent African-American defendant in the South, Atticus Finch stated what should be true, but unfortunately is not: courtrooms are the great leveler, treating all who enter the same no matter their race, gender or monetary station.

We all know that in most cases, the parties who can afford the best attorneys usually have a leg up. Of course, that was never the case in contingent-fee cases where, it could be argued, many plaintiffs have access to some of the best trial attorneys.

How else would plaintiffs be able to prevail against Merck & Co. Inc., Ford Motor Co. and other Fortune 500 companies? Until fairly recently, this was not the case in the area of employment law, but fortunately the New Jersey Legislature and other states have enacted statutes that permit fee shifting in cases where a plaintiff has proved a violation of the Law Against Discrimination (N.J.S.A. 10: 5-1 et. seq.).

Unfortunately, an Aug. 28, 2006, New Jersey Law Journal op-ed article, “One-Sided Fee Shifting in LAD, CEPA Harms the Legal System” [185 N.J.L.J. 755], decried the fee-shifting statute. Nothing could be further from the truth. In fact, together with contingent fees in personal injury cases, fee shifting allows court access for disadvantaged individuals who would have no other way to go before a judge and jury.

The purpose of fee shifting is to level the playing field. What other way would there be for an hourly wage worker, for example, to go up against the large firms that regularly represent Fortune 500 companies? More important, why would an attorney undertake an employee’s discrimination or wrongful discharge claim if he did not reasonably believe there was a substantial chance of recovery?

The difference between personal injury cases and employment discrimination cases largely lies in the potential recovery for a particular plaintiff. While an injured plaintiff could be entitled to thousands, even millions of dollars, as a result of injuries and lost wages, a former employee terminated due to age, race or gender may only have a claim worth in the tens of thousands of dollars. And while that amount may be significant to the plaintiff, it may not be enough for an attorney to justify taking the case on a contingent-fee basis, especially if the case has to be tried. So, in those situations, without a fee-shifting statute, it would be difficult for a plaintiff to hire an attorney and he or she would not even get their day in court.

The poor and disadvantaged have always had a difficult time getting fair representation. However, starting with contingent fees in all types of personal injury cases, and more recently, permitting fee shifting in LAD, Conscientious Employee Protection Act, and even legal malpractice cases, (Safer v. Willoughby, 143 N.J. 256 (1996)), the tide is slowly turning. Some of the best trial attorneys are the ones representing plaintiffs in personal injury and employment discrimination cases, even though in many cases, they are often facing a team of lawyers from some of the biggest firms in the country.

An argument can be made that the playing field is not level enough. Many times an attorney has to turn away a client on a smaller case that may not involve fee shifting or a contingent fee, especially if the client does not have the funds to pay the attorney. Of course, if that particular client in a small breach-of-contract case decides to file suit pro se, you can be sure the defendant in that case will retain counsel to go up against the pro se plaintiff, even if there is a viable claim.

While the legal system and the courts have come a long way, they still have a long way to go in becoming a place where disadvantaged citizens can feel they are on equal footing with the largest corporations and insurance companies.

This article is reprinted with permission from the March 5, 2007 issue of the New Jersey Law Journal. ©2007 ALM Properties, Inc. Further duplication without permission is prohibited. All rights reserved.

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