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Lawyer Fee Arrangements and Litigation Outcomes : An Auction-Theoretic Perspective

Author

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  • Yannick Gabuthy

    (BETA - Bureau d'Économie Théorique et Appliquée - INRA - Institut National de la Recherche Agronomique - UNISTRA - Université de Strasbourg - UL - Université de Lorraine - CNRS - Centre National de la Recherche Scientifique)

  • Pierre-Henri Morand

    (LBNC - Laboratoire Biens, Normes, Contrats - AU - Avignon Université)

Abstract

Many jurisdictions in Europe foresee the opportunity to allow the use of pay-for-performance (outcome-based) contracts in lawyer-client relationships, via the socalled contingent/conditional fees. In this article, we analyze the welfare implications of such fee regimes – regarding their effects on litigation outcomes – by modeling the lawsuit as an auction. The criteria for regime comparison are litigation costs, lawyers' profits, and parties' incentives to reach a pre-trial settlement. The main result shows that switching from hourly to outcome-based fees may increase the trial costs and the lawyers' profits, and enhance the likelihood of settlement (by decreasing the litigants' expected utilities at trial). This last effect may challenge an important argument in favor of pay-for-performance contracts, that is the objective of promoting access to justice, which is an overriding public policy motivation behind the introduction of these remuneration systems.

Suggested Citation

  • Yannick Gabuthy & Pierre-Henri Morand, 2019. "Lawyer Fee Arrangements and Litigation Outcomes : An Auction-Theoretic Perspective," Working Papers hal-01973660, HAL.
    • Handle: RePEc:hal:wpaper:hal-01973660
    Note: View the original document on HAL open archive server: https://hal.science/hal-01973660
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    References listed on IDEAS

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    More about this item

    Keywords

    Litigation expenditures; Pre-trial settlement; Legal fees;
    All these keywords.

    JEL classification:

    • D44 - Microeconomics - - Market Structure, Pricing, and Design - - - Auctions
    • K40 - Law and Economics - - Legal Procedure, the Legal System, and Illegal Behavior - - - General
    • K41 - Law and Economics - - Legal Procedure, the Legal System, and Illegal Behavior - - - Litigation Process

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