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

April 2, 2006

contingency fees: market failure

Filed under: pre-06-2006 — David Giacalone @ 9:34 pm

Ted Frank of Overlawyered and Point of Law usually approaches contingency fee

issues a bit differently than I do.  He is far more steeped in economics than I, and

he brings the perspective of a “tort reformer.”   As ethicalEsq said in July 2003,

tort reform is a matter of political and social policy, not legal ethics, and it is not

my fight.  My perspective — by temperament, and after a dozen years practicing

antitrust law at the FTC — is that of a consumer and competition advocate.  I want

legal clients to receive the benefits of both professional responsibility rules (with

related fiducial rights) and competition, and I believe that a well-informed client can

protect his or her interests far better than one treated like a mushroom (viz., kept

in the dark and covered with manure).


                                                                          ATLA: at least one third gray bar association


Personal injury lawyers, however, seem to get just as upset with me as they do with

tort reformers, even though I have never advocated limiting the right to sue (except when

a claim is truly frivolous — that is, without a colorable basis in fact or law), nor capping

the amount paid out in damages.  However, although I want clients to get all that they

deserve, that means having their lawyers take only the fees that they deserve.  That’s

what has gotten me in hot water with the personal injury bar from the very first time I

questioned whether application of a “standard” or customary contingency fee to virtually

every client is ethical — before I had ever heard of a tort reform movement.


What does this have to do with the title of today’s post?  Well, this week, Ted Frank

wrote at Overlawyered (“Search Engine Index,” March 27, 2006) about the interesting

(but not surprising) fact that:

“Six of the eight most expensive Google AdSense search terms are for

attorneys . . . with “mesothelioma lawyers” topping the charts.”  [per

In addition, at Inside Opinions, Robert Ambrogi pointed to Ted and pointed out that:

Other chart-topping search terms include “tax attorney,” “car accident lawyer” and

“auto accident attorney.”


Ted concluded that the lawyers were willing to pay very high click-through rates

for AdSense “because there is a lot of easy profit to be made.”  He then asks:

“The interesting question is what market failure has occurred such that

this gigantic profit is not being competed away by, say, offering clients

a smaller attorneys’ fee. This is surplus that should be going to clients,

not to Google.”



That’s where the tort-reforming economist in Ted starts sounding an awful lot

like the ethicist-trustbustin’ consumer advocate in me.. . . 


. . . . please click to read the rest of this post,

which is part I of a four-part series, that includes: 




honorary gumbahs: yu and john

Filed under: pre-06-2006 — David Giacalone @ 12:23 am

Not all of my gumbahs” are Italo-American.   Over dim sum, carrot cake,

haiku, and lawn bocce, John Stevenson and Yu Chang have become, in

the words of The American Heritage Dictionary:

Goombah: n. Slang.  A companion or associate, especially an

older friend who acts as a patron, protector, or adviser.  

[Think of “older” as in “wiser,” “more mature.”]


Let me tell you, these gumbahs can write haiku and senryu!



yu chang




the new guppy

fans its tail




mountain trail

my heart beat

louder than I remember








mountain pass


on every windshield









waiting for you

another pair of headlights

through the fog








circuits lab

his mistake

in the air








evening silence

cat food for the stray










drainage ditch

first frog

of spring 


except: “drainage ditch” – (2003/II)







his spotless

new office

my dermatologist








and homesick

all-night diner






satellite image

   of my childhood home

   . . . the woods








Monday morning

putting the point

on a pencil





diner dude gray 




a touching movie

the ushers wait

for us to leave









to the point

a bent reed








dinner for one

a view

of the ocean







tiny check Darn, I forgot all about Spring Break and swimsuits, when I

ate that entire bag of Hershey’s Dark Chocolate Kisses at 3 AM

last night.  Good thing the NYT reminded me to start dieting again.



tiny check Please: Spare me from power-hungry political webloggers and from

liberal Democrats who think we can win elections by becoming  ideological

purists and forming thought-police posses. See NYT and Althouse.


all fools day
my daughter gets in first
with a pinch and punch


      matt morden – morden haiku

tiny check  Gumbah-haijin Matt Morden linked yesterday to a piece discussing

the origins of April Fool’s Day – All Fools Day. 



                                                                                                                      froglegs neg


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