Bench & Bar May/June 2026

University of Nevada, Las Vegas, at https://tinyurl.com/contingen cy-unlv, that: that consequences to a behavior serve to shape the frequency and other char acteristics of that behavior. Examples include token economy with response cost, contracting, shaping, differential reinforcement of other or incompati ble behavior, time-out, and use of Premack's principle. LAWYER WELLBEING Try BY DR. ERIC Y. DROGIN The technique is based on Skin nerian laws of reinforcement, or

D oes the way we refer to handling mat ters in court—specifically, to “try” a case—undersell our effectiveness and even signal to our would-be client base that the system is rigged or at least random? No. It reflects instead a far more than tacit acknowledgment that in an adversarial system, more than one valid point of view may be espoused, and that professional life offers no guarantees that the argument we consider righteous will always prevail. There is perhaps no more concrete recog nition of the likelihood that counsel may both “try” and “fail” than that wrapped up in the venerable civil practice notion of the contingency fee. If we triumph on behalf of our clients and enable them to be made whole, there is a whole lot—perhaps, say, 30% of the whole—that can wind up break ing our way as well. The financial rewards are potentially so great because the likeli hood that we may not emerge victorious is not merely real but in fact so great as to be unignorable. Do social scientists have a perspective on “contingency”? One might just as well ask, in personal injury plaintiff’s parlance, “does an ATV flip over in the woods?” Contingency management is a core aspect of behavioral psychology. Surely, we all remember from our earliest school days, as reminded by faculty members of the

Okay, so perhaps we don’t all remem ber this, and if we did, we might not know exactly what to do with it. What it boils down to is that once we buy into a situation where rewards are based on how—and how hard—we “try,” something else takes over. Does this imply that there’s something shady, underhanded, or deliber ately obscure about contingency fees? Not at all, and indeed one of their most legitimate and thus potent selling points is their simplicity. Take that, hourly billing.

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