By now, almost everyone who watches television or listens to the radio has come across personal injury lawyer ads that solicit clients to file lawsuits for alleged harm caused by water contamination at Camp Lejeune in North Carolina. The advertising blitz is one of the largest ever by plaintiffs’ lawyers. There is a very simple reason for that: It’s easy money for very little work.
In August, President Joe Biden signed into law the Honoring Our PACT Act. This legislation, which passed with broad bipartisan support, contained the Camp Lejeune Justice Act, creating a federal right of action for anyone to sue over alleged exposure to contaminated water at that U.S. Marine Corps base between 1953 and 1987. Prior to this enactment, such claims were not permitted due to federal government immunity or the expiration of limitation periods for bringing a lawsuit.
But this law established a two-year window in which to bring otherwise-barred lawsuits. That is one reason for the “hurry up” messaging in those personal injury lawyer ads seeking out plaintiffs. In fact, the advertising campaign kicked off long before the law was even adopted, meaning that personal injury lawyers were soliciting clients to bring lawsuits that were not even viable at the time the ads were running.
These ads often say that you do not have to pay any legal fees unless you win your lawsuit. On the surface, this contingency fee arrangement probably sounds like a great, risk-free proposition for claimants. What the ads do not say, however, is that prevailing in one of these Camp Lejeune lawsuits is significantly easier than in other cases, and so the lawyer stands to collect a huge fee for doing relatively little work.
In many instances, plaintiffs’ lawyer contingency fees run upwards of 40% of the damages awarded to an injured person. The unwritten idea behind the contingent fee is to provide a cushion for the lawyer in successful cases that helps offset and absorb the cost of unsuccessful cases. But that contingency fee approach falls apart in the case of Camp Lejeune lawsuits because there is virtually no contingency. Any injured person is almost certain to prevail, regardless of the talent of their lawyer.
Claimants in these cases need only show that their exposure to contaminated water at Camp Lejeune is “at least as likely as not” the cause of any alleged illness. The burden of proof in normal civil cases is far more demanding — namely, to show that it is “more probable than not” that exposure caused illness.
A lawyer’s work involved in filing a Camp Lejeune claim is also far less demanding than in other civil cases. The vast majority of claims, somewhere in the neighborhood of 98%, will likely be settled by the federal government without the need for litigation.
The result is that personal injury lawyers stand to reap huge benefits from a multibillion-dollar litigation handed to them by Congress and the Biden administration without doing much to justify such a payday. And keep in mind that this payday directly takes away from the recoveries of those suffering from serious illness.
Companies sponsoring these Camp Lejeune lawsuit ads, called “lead generators,” likewise can expect an unusually large payday. They take their cut by linking claimants with those personal injury lawyers.
So, why has no news network brought this issue to light? One cynical explanation, shared under the radar by members of the personal injury bar, is that news outlets are collecting hundreds of millions of dollars in Camp Lejeune ad revenue. They do not want to bite the hand that feeds them. Whether that is true or not, the disparity between contingency fee lawyers and the lack of contingency with respect to Camp Lejeune lawsuits needs to be brought to light.
The victims of Camp Lejeune deserve relief, and it should not be diminished by excessive legal fees.
Schwartz is a former law professor and law school dean and current co-chairman of the Public Policy Group of the law firm Shook, Hardy & Bacon, LLP. He is co-author of the most widely used torts casebook in the U.S., Prosser, Wade & Schwartz’s Torts: Cases and Materials.
