The Contingency Fee and the Rule of Law
As said by one of our founding fathers, John Adams, ours is “a government of laws and not of men.” Mass. Const. of 1780, First Part, Art. XXX; see also Thomas Paine, Common Sense Chapter 3, “Thoughts on the Present State of American Affairs” (Philadelphia, 1776) (“in America the law is king”).
In order for that principle to be realized citizens must have access to courts to ensure that no person is above the law and that everyone is treated fairly and equally. See Boyle v. Anderson, 301 Va. 52, 56, 871 S.E.2d 226, 228 (2022) (“Access to the courts to seek legal redress is a constitutional right.”). Yet if only the wealthy can afford to utilize our civil justice system then when wrongs are committed wrongdoers will not be held to account.
Fortunately, people of ordinary means can retain lawyers on a contingent fee basis in many circumstances. See Va. Sup. Ct. R., Pt. 6, Sec. II, R. 1.5. A contingency fee is permitted in any matter except for criminal cases and, except in rare instances, family law cases. See id. Contingency fees are quite common in personal injury matters.
Under this rubric, litigants are not required to pay an hourly rate or even a flat fee but, rather, they can retain a lawyer of their choice and pay them a percentage of the recovery, if and only if there is a recovery (either a plaintiff’s verdict or a settlement). See Bouvier Law Dictionary, “Contingency Fee” (Desk ed.). In contingency fee matters the lawyer usually advances the cost of the litigation as well as invests his or her time and is paid only if the case is successful. See Portsmouth 2175 Elmhurst, LLC v. City of Portsmouth, 298 Va. 310, 334, 837 S.E.2d 504, 515-
16 (2020).
The contingency fee, typically between 33% and 40%, is calculated at the same percentage whether the case takes 3 months or 3 years to resolve, which can feel unfair at either extreme. Consequently:
“A contingent fee may permissibly be greater than what an hourly fee lawyer of similar qualifications would receive for the same representation.” Restatement (Third) of the Law Governing Lawyers [] § 35 cmt. c [(2000)]. That is so because “contingency fee agreements transfer a significant portion of the risk of loss to the attorneys taking a case.” Portsmouth 2175, 298 Va. at 334 . . . . “A lawyer might expend considerable effort” only to recover nothing. Id. Or “a lawyer may expend minimal time on a case and obtain a full recovery.” Id.
Moncrieffe v. Deno, 76 Va. App. 488, 500-01, 882 S.E.2d 524, 530 (2023).
Among the most common critiques of contingency fees is the perceived windfall to plaintiff’s counsel in personal injury cases involving massive injuries recoveries, especially if the case resolves quickly or without extensive litigation. Despite this criticism, the contingency fee serves a noble purpose in our justice system.
The contingent fee is often criticized by the defense bar as encouraging plaintiffs to bring frivolous cases, but it may actually discourage them, as the plaintiff’s lawyer recovers nothing
from a lost case. The contingent fee is also criticized because it reduces the recovery of a meritorious claim, such that a person who loses a leg would recover only two-thirds of the
compensation awarded for the leg. Yet . . . but for the lawyer bearing the risk and paying the costs, the one-legged plaintiff probably would not have had the means to seek any recovery at all. For many poor people, a lawyer on a contingent basis is essential for their access to the court. In the end, the contingent fee is a natural response to a system of civil litigation, particularly in tort, that follows the American rule, in which all clients must pay for their own lawyers
Bouvier Law Dictionary, “Contingency Fee.”
In practical terms, this approach allows everyday injured people to stand toe-to-toe on an equal basis with governments, trucking companies, healthcare providers, and multinational corporations armed with ample financial resources. “[C]ontingency fees provide access to counsel for individuals who would otherwise have difficulty obtaining representation” and “are an acknowledged feature of our legal landscape, approved by legislative and judicial bodies alike, that help secure for the impecunious access both to counsel and to court.” Pellegrin v. Nat’l Union Fire Ins. (In re Abrams & Abrams, P.A.), 605 F.3d 238, 245 (4th Cir. 2010).
This system protects the rule of law and not only seeks compensation for those who have been harmed but promotes safety and therefore protects us all. Because of the rule of law and the contingent fee system, the dangers of cigarettes are known, cars are manufactured more safely, dangerous drugs are off the market, and lawyers are incentivized to fight to make sure the wealthy do not control the system. This fulfills John Adams’ statement which is so critical to our system of government.
For over 115 years, the attorneys and staff at Marks & Harrison have led the way in challenging the actions of wrongdoers and have achieved some of the largest results in Virginia history against those who have harmed our clients. Marks & Harrison has represented a multitude of injured persons against interstate trucking companies, huge corporations, large healthcare systems and providers, and various other wrongdoers across Virginia, Maryland, and Washington D.C. Virtually every case handled by our firm has been on a contingency-fee basis where no client was prevented from access to justice due to inability to afford a lawyer. Marks & Harrison embodies John Adams’s admonition that we are a country of laws and not of kings.
The entire Marks & Harrison Fall 2026 Points of Law newsletter is available for download.
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