Executive Orders of the President of the United States usually are dull reading except for attorneys, judges or others interested in the subject matter and conversant with the modified legislative style utilized to write them. However, President George W. Bush’s Executive Order of May 16, 2007 (“EO”) ought to interest every American concerned about the onslaught of tort litigation and much of the practice of our country’s so-called “trial lawyers” - that is, plaintiffs’ contingency-fee attorneys.

The media, relatively speaking, has all but ignored the EO, the excised text of which follows. How few people, otherwise reasonably informed, knew that the Federal Government sometimes retained attorneys to litigate upon a contingency-fee basis! Many States, of course, do likewise. The fees so earned by and large are minimal compared to the millions and multi-millions of dollars collected by the more high-flying “trial lawyers.” However, they are fees paid by taxpayers.

The sum and substance of the EO is that the Federal Government will compensate its retained litigating attorneys upon the basis of their working hours, not sometimes gigantic contingent fees. One must hope that this act of reasonableness and fairness may encourage States and other governmental bodies to contract with attorneys upon a like basis - appropriate payment for professional work performed. If the attorney must forego $ 400.00 haircuts and $ 6.5 million residences, so be it.

Although we must be careful in emulating foreign jurisprudence, it is worth noting that no foreign country tolerates an out-of-control contingency-fee tort litigation system. Indeed, no foreign country tolerates the equivalent of our sometimes-out-of-control civil jury system, not even England, from which our common law and our original jury system derived.

Excerpts from the EO follow:

“ . . . [A]s President[,] by the Constitution and the laws of the United States of America . . . it is hereby ordered . . .:

§ 1. Policy. To help ensure the integrity and effective supervision of the legal and expert[-]witness services provided to or on behalf of the United States . . . organizations or individuals that provide such services . . . shall be compensated in amounts that are reasonable, not contingent upon the outcome of litigation or other proceedings, and established according to criteria set in advance . . .

§ 2. Duties of Agency Heads . . .

(b) . . . [N]o agency shall enter into a contingency fee agreement for legal or expert[-]witness services . . . unless required by law . . .

§ 3. Definitions. . .

(b) The term “contingency fee agreement” means a contract or other agreement to provide services under which the amount or the payment of the fee . . . is contingent in whole or in part on the outcome . . .”

No doubt the American Association for Justice, or whatever its latest attempt at a salubrious name, will not be pleased. For some discussion of the plaintiffs’ contingency-fee lawyers’ efforts to adduce a sympathetic name, please note our February 8, 2007 column, which follows.

The President should be congratulated. The media should take note.

Taxpayers should be appreciative.