Advance Sheet. Use and Abuse

• Author: Robert E. Shapiro
• Pages: 59-61

Published in Litigation, Volume 48, Number 2, Winter 2022. © 2022 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not

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Advance Sheet

ROBERT E. SHAPIRO

The author is with Barack Ferrazzano Kirschbaum & Nagelberg LLP, Chicago, and an associate editor of

Litigation.

“Champerty” and its generic form “main-

tenance” are terms that have the whiff

of quill ink and wig powder about them.

Certainly, they play almost no role in our

modern-day litigation practice. They

arose and had their heyday in an era when

the legal system and litigation itself served

a less immediate role in everyday social

and economic life. Then, the legal sys-

tem existed to specify the outer bounds

of good (and bad) conduct, preserve the

peace, and resolve those occasional dis-

putes that escaped resolution within the

norms of custom and good sense prevail-

ing in the local community. Litigation it-

self was not just less often experienced but

also somewhat frowned upon as a breach

of good order. Certainly, then, it was unac

-

ceptable for an unconnected third party to

stimulate or participate in it, particularly

someone uninterested in the actual mer-

its of the proceeding, let alone seeking to

benefit personally in a financial way.

Maybe for better, though sometimes

for worse, this is not our world. Today the

legal system is regarded as part of social

life and the economy itself, not something

merely designed to set or regulate their

outer limits. Like lawyering itself, which

is now viewed as much more of a busi-

ness than ever before, the legal system has

become a means, directly or indirectly, of

personal celebrity and moneymaking as

well. There are mega-firms designed to

reap huge profits from the system, and

small ones with the same motive too.

Litigation can be, and frequently is, ac-

ceptably used as negotiation by other

means. The satires of Jonathan Swift and

Charles Dickens show that the public has

long viewed trial lawyers more as serv-

ing their own interests than as righting

society’s wrongs. But the legal profession

has become a fulsome source these days

of just such characters and characteris-

tics very easily lampooned in the same

way. Nor should it be lost on anyone that

what was once viewed by these writers

as a basis for ridicule is now more often

seen as a reason for praise. Gossipy talk

about lawyers has become not just a staple

of contemporary media of all kinds but a

sought-after professional goal, covered

by what is broadly called “marketing,” a

word Swift and Dickens would have had a

field day with. And too often celebrity and

commercial success are treated as proof

of worthiness.

Don’t be fooled by where you sit in this

new world photograph. Litigation as fee

generation or personal fame is hardly the

sole province of either the plaintiffs’ or

the defendants’ bars, despite what each

thinks of the other. For every plaintiffs’

lawyer out searching for contingency

matters regardless of merit, there is a de-

fendant’s counsel who calculates how the

fees billed to the client can be maximized

through the use of large litigation teams

beyond the true needs of the case. On both

sides of the v, there are lawyers searching

for rock star trial lawyer status and mak-

ing highly publicized law firm moves to

improve their standard of living. In a word,

the law, litigation, and lawyering would

seem to have become an industry all its

own, with all the warts, including those

where financial and career success, rather

than doing justice or even law, are some-

times too much the core of the matter.

Litigation Fund ing

Small wonder, then, that the idea that

third parties can get in on the game—in-

vest in it, one might say—would lose its

malignant air. We now have new subin-

dustries to consider, like litigation sup-

port companies for increasingly complex

discovery activities and experts from ac-

ademia garnering an income unheard of

within the universities themselves. None

of these new cottage industries is more

salient, or controversial, than the new net-

work of so-called litigation funders. These

have taken a step beyond anything known

before for financing a lawsuit, providing

kind of a contingency fee arrangement

on steroids, where not just the lawyer

involved but a third-party fund provides

USE AND ABUSE