Elizabeth R. Bain’s Post

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Attorney & Health and Wellness Professional (NBC-HWC, RYT, CPT)

As a defense attorney, I'm on de fence about litigation funding. On the one hand, I can appreciate the theory that litigation funding could allow worthy cases to go to trial, allowing injured parties to be fairly compensated for their injuries. (Note that I don't know that this actually happens.) On the other hand, allowing venture capitalists or similar to invest in civil litigation is a terrible idea. "Hi, I heard you were injured and I'd like to make some money by helping you go to court; I'll hook you up with these attorneys." Yes, I realize that's not exactly how the funding works but that's not totally inaccurate. At a time when many Americans do not trust the judicial system (see, e.g., dismal public opinion of the federal courts since the last president) the optics are not good. In many states there are rules prohibiting fee-sharing with non-attorneys; isn't this merely fee-sharing by a different name--a fancy technical arrangement to skirt the rules? (That's before we even get into the conflict-of-interest problems, which are equally or more problematic.) Or is this another variation on "I'll help you by buying out your structured settlement for cash today"? (Are they equally predatory?) With litigation funding largely unregulated is it really the injured parties who benefit?

Plaintiffs counsel ordered to disclose litigation funders in 3M earplug settlement

Plaintiffs counsel ordered to disclose litigation funders in 3M earplug settlement

legaldive.com

There's a recent case in the UK casting doubt on litigation funding arrangements that are based on obtaining a percentage of the recovery. So there is some resistance across the pond.

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