Justice is expensive in the United States. Every citizen has the right to seek
redress for his or her grievances in the courts. The problem is paying the bills.
Lawyers’ fees are typically $75 to $1,000 an hour, and associated costs can
amount to tens or hundreds of thousands of dollars, depending on the nature
of the case. In the criminal justice system, where successful plaintiffs only get
their freedom and the government only pays a small amount toward the
defense of indigent persons, access to the best criminal defense in a serious
case is restricted to the very rich and a very few high profile cases, such as the
Oklahoma bombing defendants.
A medical malpractice trial can take one to six weeks. A trial of a complex
business case frequently takes months; some have gone on for more than a
year. Trials cost each party $2,000 a day and up, depending on the number of
attorneys representing the party. Expert witnesses’ fees and expenses can add
another $2,000 to $3,000 a day for every day or part of a day that the witness
must be in court. For parties paying their own lawyers, a trial can be so
expensive that any victory will be Pyrrhic. For plaintiffs represented on
contingency contracts, a trial increases the expenses that they must pay out of
any money they receive, but it is their attorneys who bear the major expense
of the trial. The time, expense, and uncertainty of a trial is the major
justification for the 30% to 50% of the award that a contingent fee client must
give up to the attorney. Even defendants represented by counsel paid by an
insurance company can lose large amounts of money because of the business
they lose while tied up in the trial.
Although the insurance company pays all of the direct costs of the trial and
these costs do not directly raise the defendant’s insurance premium, they must
be recouped from all of those insured in the defendant’s insurance pool,
including the defendant. Defense costs are a major factor in the decision to
settle any lawsuit. An insured defendant may want to fight a case on principle,
but it is usually a bad business decision to spend $150,000 to fight a case that
could be settled for $25,000, if the defendant was negligent.
The most disturbing consequence of trial costs is that they allow a very well-
funded party to punish an opponent, irrespective of the merits of the case. A
wealthy surgeon can use litigation to force colleagues on a peer review panel
to back down from limiting his or her privileges. A tobacco company can devote
unlimited resources to fighting persons who sue for injuries caused by smoking.