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Revisiting the Debate over Attorneys' Contingent Fees: A Behavioral Analysis

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  • Eyal Zamir
  • Ilana Ritov

Abstract

Building on Kahneman and Tversky's prospect theory, this paper presents a series of experiments designed to reveal people's preferences regarding attorneys' fees. Contrary to common economic wisdom, it demonstrates that loss aversion (rather than risk aversion or incentivizing the lawyer to win the case) plays a major role in clients' preferences for contingent-fee arrangements. Facing a choice between a mixed gamble and a pure positive one, plaintiffs prefer a contingent fee (framed as a pure positive gamble), even if it yields an expected fee that is 2 or 3 times higher than a noncontingent one (framed as a mixed gamble). At the same time, defendants, who face a choice between two pure negative gambles, are typically risk seeking and prefer fixed fees. Our findings indicate that information problems and lack of alternative fee arrangements probably do not loom large in clients' choice of fee arrangement. We discuss the policy implications of our findings. (c) 2010 by The University of Chicago. All rights reserved.

Suggested Citation

  • Eyal Zamir & Ilana Ritov, 2010. "Revisiting the Debate over Attorneys' Contingent Fees: A Behavioral Analysis," The Journal of Legal Studies, University of Chicago Press, vol. 39(1), pages 245-288, January.
    • Handle: RePEc:ucp:jlstud:v:39:y:2010:i:1:p:245-288
    DOI: 10.1086/605510
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    Cited by:

    1. Emons, Winand & Fluet, Claude, 2016. "Why plaintiffs’ attorneys use contingent and defense attorneys fixed fee contracts," International Review of Law and Economics, Elsevier, vol. 47(C), pages 16-23.
    2. Cédric Argenton & Xiaoyu Wang, 2023. "Litigation and settlement under loss aversion," European Journal of Law and Economics, Springer, vol. 56(2), pages 369-402, October.
    3. Argenton, Cedric & Wang, Xiaoyu, 2020. "Litigation and Settlement under Loss Aversion," Other publications TiSEM b6c48abc-9b47-4c3b-848b-3, Tilburg University, School of Economics and Management.
    4. Lin, Chang-Ching & Chang, Yun-chien & Chen, Kong-Pin, 2020. "Knowledge in youth is wisdom in age: an empirical study of attorney experience in torts litigation," International Review of Law and Economics, Elsevier, vol. 63(C).
    5. Cotten, Stephen J. & Santore, Rudy, 2012. "Contingent fee caps, screening, and the quality of legal services," International Review of Law and Economics, Elsevier, vol. 32(3), pages 317-328.
    6. Eyal Zamir & Ilana Ritov, 2012. "Loss Aversion, Omission Bias, and the Burden of Proof in Civil Litigation," The Journal of Legal Studies, University of Chicago Press, vol. 41(1), pages 165-207.
    7. Frances Xu Lee & Yuk‐fai Fong, 2017. "Signaling by an informed service provider," Journal of Economics & Management Strategy, Wiley Blackwell, vol. 26(4), pages 955-968, December.
    8. Haber, Stephen H. & Werfel, Seth H., 2016. "Patent trolls as financial intermediaries? Experimental evidence," Economics Letters, Elsevier, vol. 149(C), pages 64-66.

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