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

August 26, 2005

scarecrow: yes, strawman: no

Filed under: pre-06-2006 — David Giacalone @ 11:27 pm

After spending too much time today shooting at strawmen,

I thought I’d enjoy a bit of scarecrow gazing.  Here are another

pair from The Scare Crow: A Collection of Haiku & Senryu (Leroy

Kanterman, Ed., Hiroake Sato, translator, Red Moon Press,

1999).  Click here for three more by some of f/k/a‘s Honored Guests.

Below, you’ll also find a few from Issa and one from dagosan.



scare crow cover 



our hostess leads us

toward a scarecrow


            John Stevenson








crows leaving

as quickly as they land

    — I am the scarecrow


             Tom Clausen






crow sm



like people
an upright scarecrow
can’t be found








burning rubbish–
a scarecrow too
goes up in smoke






wind-bent in moonlight
the scarecrow leans
on a cane




by Kobayashi Issa click for 50 more scarecrow haiku

translated by David G. Lanoue





crow smf


scratching my back —

one more job

for the scarecrow



         dagosan   [Aug. 26, 2005]  


tiny check  Have you noticed how often the Editor of Blawg Review  graphClimbN

kisses the InstaButt?    I wonder what Prof. Reynolds thinks of all 

this fawning.   Meanwhile, no matter how many times my buddies

at Blawg Review tell me about other Weblog Carnivals that boost

visits, I have never had a Blawg Review listing that registered more

than a dozen total hits over a week.  [in contrast, a jd2b link can bring

hundreds of visitors, and Overlawyered many scores of them].   Hmm. 

Maybe somebody better start kissing the InstaButt a lot more.

“tinyredcheck” One more thought: Blawg Review says that it is

a peer-reviewed carnival for law weblogs, and its

tagline suggests editorial input.  Also,  the BR 

Submission Guidelines point out that “The host

shall be at liberty to present the submission, or not.”

Nonetheless, the Hosting Guidelines say “It is the

concept of Blawg Review, within reason, to be inclusive

of all posts submitted for review in the week prior to

each issue.”  Would you be more likely to click through

a Blawg Review listing if you felt there were some

quality control being exercised by the Host?  Can any

collection of links be considered the best recent posts

if there is no filter between the ego of the submitting

weblogger and placement on the list?   There I go again,

being an elitist — and sticking my nose uninvited under

someone else’s carnival tent.  Sue me. What do you think?


update:  The Editor of Blawg Review has responded with

a very helpful Comment, which gives a good explanation

of how postings are chosen for inclusion in each weekly


sumoS  While I was fretting over contingency fees all afternoon, Mr.

Google was (inadvertently) sending me traffic.  Here are two queries

that seem noteworthy:

lawyer appreciation“>  Just don’t know why, but there were only

119 results for this Google search.  We’re pleased to say that the

first result was our post describing an unsuccessful search for

holidays and events that honor lawyers, and the second result

was this post, wherein skepticalEsq was a bit credulous about a

“grassroots” rally in support of plaintiffs’ lawyers in Madison County,



typical diet of a sumo wrestler>  We inadvertently garnered the #2

slot in this Google search — out of nearly 6000 results — thanks to a post

about the “typical diet” of billable hours for young associates and an

Issa poem mentioning a sumo wrestler.   Our link was sandwiched in

between a USAToday article about the health woes of retired, less-active 

sumo wrestlers (e.g., Haiwaiian-born sumo legend Konishiki used to wrestle

at 665 pounds, but now wants to get down to 400 pounds), and a more

scholarly piece that mentions retired sumo wrestlers and the fight to control

diabetes — as “an example of fit and fat becomes fat and sick”.




fees of the assumption

Filed under: pre-06-2006 — David Giacalone @ 8:38 pm

It is only fitting that AEI’s Liability Project has released Two Cheers for Contingent Fees to

coincide with the Catholic Feast of the Assumption of the Blessed Virgin Mary (which celebrates

Mary’s having been “taken up body and soul into heaven upon her death”).  Two Cheers is a

42-page monograph by Alex Tabarrok and Eric Helland (available here in pdf format), which

concludes that limiting the contractual rights of plaintiffs and their lawyers, by restricting the

size of contingency fees, “is an unattractive and likely ineffective method of achieving” the goal

of tort reform. (via Ted Frank)


Like the Catholic who believes in Mary’s “corporeal assumption” based on faith and dogma (with

no empirical evidence), Tabarrok and Helland base their conclusions on assumptions that appear grounded on little more than faith, orthodoxy and wishful thinking.  For example, as Walter Olson argues at Point of Law:

I also very much doubt that further empirical investigation will bear out their claim  trashman small flip

that contingency fees “do not cause higher awards” or that “contingent-fee limits

are unlikely to reduce lawyers’ income very much, since they will simply switch

to hourly fees”. In fact, I feel confident that most contingency-fee lawyers themselves,

seeing their practice from the inside, would part company from Tabarrok and Helland

on key points in this analysis.  

T&H’s primary assumption is the shakiest:  They say [at 5]:

“Contingent-fee arrangements are contracts, and along with the vast majority

of economists, we start with the presumption that self-interest pushes private

bargains toward efficiency.”  . . .


“In short, our skepticism with respect to the tort system and our defense of

contingent fees rest on the same general presumption in favor of contract.

Restrictions on contingent fees are restrictions on the freedom to contract

and, as such, must clear a high hurdle to be justified. The presumption for c

ontracts can be rebutted. But in examining well-accepted contractual practices,

one ought to start with the premise of efficiency even when neither the theorists

nor, for that matter, market participants themselves can conclusively explain

why the arrangements are efficient.”

This assumption of efficiency has no basis in fact when applied to the contingency fee

arrangement between lawyer and client.  In the vast majority of cases, the lawyer presents

the client with a contract that reflects the standard or “prevailing” fee in their locality; the

client has no idea that he or she has the right to negotiate the percentage level, and has

no information that would allow for intelligent bargaining — e.g., the likelihood of success,

how much work is involved, or how much the award is likely to be. (see our post “it’s not

unusual (to charge one-third”)


TwoCheersFees  I don’t know why the cover of Two Cheers depicts the U.S. Supreme Court

building (lack of an art budget? of imagination?).  However, I’m glad they reminded me of the

Supreme Court and its opinion in Gisbrecht v. Barnhart, 535 U.S. 789 (2002). Gisbrecht dealt 

with the use of contingency fees in Social Security disability cases, where the fees are capped 

at 25% of past-due benefits.  Justice Ginsberg wrote the majority opinion, joined by seven other

justices, and Justice Scalia dissented.   The Court noted:

Characteristically in cases of the kind we confront, attorneys and clients enter into

contingent-fee agreements “specifying that the fee will be 25 percent of any past-due

benefits to which the claimant becomes entitled.” . . (“There is no serious dispute among

the parties that virtually every attorney representing Title II disability claimants includes

in his/her retainer agreement a provision calling for a fee equal to 25% of the past-due

benefits awarded by the courts.”).

Although Justice Scalia dissented, he had this to say about the mode of contracting (emphasis


“The fee agreements in these Social-Security cases are hardly negotiated; they

are akin to adherence contracts. It is uncontested that the specialized Social-Security

bar charges uniform contingent fees (the statutory maximum of 25%), which are

presumably presented to the typically unsophisticated client on a take-it-or-leave-it basis.”

If T&H had bothered to look, they would have found that, in the individual injury cases    one third gray 

that are the focus of their monograph, virtually every p/i contract has a contingency fee that is set at

the maximum allowed in the jurisdiction.  The fee is presented to the client as the “standard” fee,

with no opportunity to negotiate for an “efficient” contract.    Rejecting fee caps in the holy name

of “contract efficiencies” demands a faith-based brand of deduction and reasoning that should be

anathema to objective economists — and policy-makers.

tiny check T&H also use the empirical work of Prof. Herbert M. Kritzer to support

their claim that contingency arrangements do not generate inappropriately high fees

as compared to work done on an hourly basis.  Kritzer’s work has been debunked by

us here, and by Prof. Lester Brickman, as described here. Also, their hypotheticals

assume a 50% chance of a lawyer winning a case and being paid, whereas it seems

quite clear that p/i lawyers seek much more certainty when accepting a case — and

are in fact victorious in perhaps as much as 90% of cases. (see this post, as well as

tiny check Their repeated use of hypotheticals and analogies involving tips given to restaurant

waiters also leaves this reader scratching his head.  The mere fact that tips are paid

after service is rendered, with the amount being at the discretion of the customer,

should be enough to make the authors look for better examples.

There are many other leaps of faith and much faulty reasoning in Two Cheers, but there is one more

major error that seems to demonstrate that T&H do not grasp the basic ethical problem raised by

client advocates like Prof. Brickman and myself against the “standard contingency fee.”  T&H say:

“In support of a collusion theory, Brickman and others have observed and inveighed

against the fact that the same contingent fee applies to a big case as to a small one.

The suggestion here is that time and effort do not rise in direct proportion to the “size” of

a case.” [emphasis added]

It is the size of the risk undertaken by the lawyer — the likelihood of winning and the likely amount

of work and expense required for the case — not the size of the case, that is at the core of Prof.

Brickman’s argument (and mine).  T&H never address the risk issue — and never explain how or

why the same percentage fee is charged across the board in very dissimilar risk situations.


scales rich poor neg  No matter what happens with tort reform, action should be taken to enforce ethical restrictions on

the use of the standard contingency fee.  The Association of Trial Lawyers of America (ATLA) has often

stated that attorneys should “exercise sound judgment in using a percentage in the contingent fee

contract that is commensurate with the risk, cost and effort required.” [Georgia’s Trial Lawyers have repeated this standard here.] That is what is demanded by our ethical rules. But, America’s p/i lawyers have never put this pronouncement into practice.  (see Some UnCommonly Good Advice on Contingency Fees)


As I have often said before, each lawyer owes loyalty to one client at a time. Each case taken on

contingency must be evaluated for its own merits and risk — and the fully-informed client allowed to

negotiate and ultimately be charged a fee reasonably related to that risk. When the lawyer charges

a standard fee to virtually every client — and it is the maximum percentage allowed in the jurisdiction — many clients are by definition overcharged.   Injured consumers should not be sacrificed on the altar

of the Holy Contract based on purely apocryphal efficiencies.



update (Sept. 23, 2005): See our post trivializing economics (Tabarrok and Helland), a

response to the ABA Journal eReport, Fee Caps Won’t Solve Liability Crisis, Study Says.”


at my gate

they pay their respects. . .





taking up

the holy man’s chant. . .

croaking frogs





riverboat. . .

on a night of fireworks

still selling fireworks


translated by David G. Lanoue




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