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April 11, 2006

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» "Please don't feed the trial lawyers" II from Overlawyered
Once again, attorneys upset that their profession is held up to ridicule would have much less of a problem if attorneys were more concerned about the behavior that led to the ridicule than about the... [Read More]

» panthers next target for Florida Bar Ad Counsel? from f/k/a
While we're talking about lawyer self-image and the image of lawyers, let me point out that Ted Frank and Evan Schaeffer continue to trade jabs relating to the Don't Feed the [Read More]

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(Part I and Part II.) The full Institute for Legal Reform ad is now on the web, and provoking debate, both on this site, and on Evan Schaeffer's. One commenter there dug up a local-paper... [Read More]

Comments

Aaron Z

Evan:
I think that you are ignoring another audience: Plaintiffs. So what that State Farm just screwed you out of $200. If you sue you will just feed the trial lawyers. And didn't you hear our other ad. Litigation cost every man, woman, and child in Illinois a $1000 last year.

Piotr

Evan,

What is it that you don't like about the billboard? Is it that you don't like the message? Because in my opinion it only feeds upon the current perception of our already tainted profession. Is it crude? Yes. But what it does do powerfully well is sum up the public's attitude toward plaintiff's lawyers. They are largely seen as money-grubbing whores more concerned with lining their own pockets than actually protecting people's rights. Our society NEEDS us. However, many view us as a necessary evil, "evil" being the operative part of that sentence.

What is it you are suggesting? That there should not be tort reform? That our current, badly-fractured legal system be left alone because it's perfectly fine? The billboard, which you find distasteful, at least has a message. I would argue that it's a fairly poignant message. What's your message? What would you rather see done?

Mike

Two things. First, yes, the billboard is ugly. It made me gag as I imagined having the taste of dollar bills in my mouth. Second, the main person making comments at the post was "Supremacy Claus," who is a revolting and well-known troll. I believe he has been banned from commetting at several web logs, including Appellate Law and Practice. So I'm not sure it's fair to color Overlawyered's readers with shades of Supremacy Claus. ;)

Evan

Piotr: At a minimum, I think that juries should make their decisions based on the evidence in the case, rather than what they've read about feeding trial lawyers on billboards. I hope they will, but some hope they won't--the billboard is Exhibit #1.

As for my "message," it's one of the weaknesses of weblogs that each post is confined to its own few paragraphs even though posts might build upon what came before. With complex topics like tort reform, the problem is especially noticeable. I did what I could by linking to my prior posts about tort reform, which contain 94 posts total--I just counted. There are still other tort-reform posts in this weblog that haven't been placed into those categories for one reason or another, but all the posts are accessible by looking at the archives. The weblog also has a search function on the right of every page. Finally, I've also opened up the weblog from time to time for guest posts from people writing in favor of tort reform; those posts are in the "guests" categories.

Piotr

Evan,

I'll admit I haven't yet had the time to peruse all of your posts and therefore am at somewhat of a disadvantage and don't quite know your complete stance on tort reform. While I agree that juries should base their decisions on the facts of the case, let's be honest. As a plaintiff's lawyer, your job is not so much to present the facts but to sway emotions. If plaintiff's lawyers limited themselves to only the facts of a case, then I'd agree with you. But they don't. The more emotional you can get a jury, the more money you stand to make. How many times have we seen a plaintiff win a case when causation was absolutely lacking? Let's face it, there have been many jury verdicts come out in favor of plaintiffs that were largely based upon emotion and not fact.

This is not a condemnation of the practice. I utilize these same emotions when they suit my needs. However, if plaintiff's lawyers can pander to pure emotion, why can't defense lawyers? You say, "look at my poor client. He can't (insert life activity here) ever again. Don't worry about who caused this problem. Just focus on the injury." They say, "look at these greedy plaintiffs and plaintiffs' lawyers. Don't feed them." It strikes me that this is just part of the game. Don't ask the defense bar to cease and desist unless you are willing to do the same. If we're going to try cases upon fact alone, then let's do that.

Another Evan

Piotr, it sounds like your problem is with the whole adversarial system. However I'm sure if you took a hard look at the legal systems of friends in Europe you will find ours to be superior. It’s not perfect but it works best when each side zealously represents their clients. If they need to make a emotional plea so be it, but I’ve seen many lawyers (and juries) turn up their noses at an action that all emotion and no fact.

Matt

" As a plaintiff's lawyer, your job is not so much to present the facts but to sway emotions. If plaintiff's lawyers limited themselves to only the facts of a case, then I'd agree with you. But they don't. The more emotional you can get a jury, the more money you stand to make. How many times have we seen a plaintiff win a case when causation was absolutely lacking? Let's face it, there have been many jury verdicts come out in favor of plaintiffs that were largely based upon emotion and not fact."

Piotr, exactly how many trials have you attended? It seems like you've reached quite a broad conclusion here, considering that there are probably 10,000, if not 100,000 civil jury trials conducted in courts across the country every day on issues ranging from contract disputes to car wrecks. Do you have a study somewhere on this issue that you're relying on?

How many jury verdicts, even as a percentage, are "largely based upon emotion and not fact"? 10,000? 10%? What tort reform proposal would change that and create a perfect system where no mistakes were ever made? Would it involve humans?

Supremacy Claus

Evan. Again. I support all torts litigation. I oppose all torts reform. Any cap on non-economic damages, I oppose. Any limit on punitive damages, as set by the Supreme Court, I oppose. I don't know how much more I can be supportive of the plaintiff Bar.

Now, again. The corrupt, lawyer self-dealt, privity obstacle to legal malpractice lawsuits against attorneys by adverse third parties needs to be removed, as it was for all other defendants in 1915. There are express duties of attorneys layed out in state law, and the Federal Rules of Civil Procedure, in the Rules of Evidence, all over the Rules of Conduct, owed to adverse third party defendants. This is the law.

Explain to me what is improper with legislation lifting the self-dealt legal malpractice immunity of the plaintiff attorney to defendants.

If lawyers can be sued for negligence, their work will improve. They will enjoy all the benefits of torts, including the prevention of self-help, headed the lawyers' way, big time.

The abuse of process approach requires proof of malice. Short of a written confession of improper motive, that avenue is literally impossible. Don't bother using that to evade the above question.


Supremacy Claus

Matt: The answer to your sarcastic questions is in front of your nose.

Torts.

Let torts work on the lawyer profession, including judges. Let all lawyers carry liability policies to compensate any party they negligently injured. Let them compensate those intentionally injured with their personal assets, and those of their employers in respondit superior, down to the last button on the last shirt.

How can any lawyer oppose such an obvious, effective and just remedy?

Piotr

Evan: Yes, part of my problem is with the adversarial system. I agree that our system is far superior to any other. That does not mean that it is without problems

Matt: No, I am not relying upon any studies. I highly doubt that any such studies do, or even could, exist. I speak from my own experiences as a personal injury defense attorney. Let me give you an idea of what I have experienced.

I have had far too many cases where the claimed injuries had no causal link with the claimed injury-producing event. I have heard lawyers say that their client's scierosis of the liver was caused by seat belt trauma. That their client's spina bifida was caused by a 5 mile per hour rear end impact. That their client suffered from toxic mold exposure where (a) there was no evidence of toxic mold and (b) where the injuries were more attributable to seasonal allergies. I have litigated countless such cases. All done with a straight face. When I presented each of these lawyers with the argument that there was no causal connection betwen the injury producing event and the claimed injury, every single lawyer has said the exact same thing -- "but look at their injuries! My client can no longer (insert life activity here)." These cases typically settle long before seeing a jury. Personal injury plaintiff's firms are typically "plaintiff's mills." Take a case, no matter the merit and settle, settle, settle.

Now, I know that I started this thread by referring to juries. I'm a little off that now. But the point is still the same. Lawyers take these kinds of cases because they know that litigation and the jury system is sufficiently haywire that taking this kind of bet is an acceptable risk. The odds of obtaining compensation, even in non-meritorious cases, is often better than any odds you'd get in Vegas. Are these all of the cases? Absolutely not. But why do lawyers keep taking cases where they have no good faith basis in their merits? The answer is simple: because the odds are greater than not that some amount of money could be obtained.

Once again I submit to all of you: what keeps a lawyer from filing a non-meritorious claim? Fear of reprisal? Fear of sanction? Or there own moral compass? I would submit that it is the latter. We should not have a system where the only significant check on a lawyer's behavior is his own sense of morality and fairness.

What I find odd is that nobody here has addressed my specific arguments. While I admit that a lot of my statements are broad-sweeping over-generalizations, that does not make my points any less valid. Again, take the case of the personal injury lawyer who makes claims that his client is injured in a manner that is physically impossible under the circumstances -- what mechanism is in place to make this lawyer fear making this bogus claim? I submit that there is no such mechanism and that our system fully allows any such claims to be made.

Is that a good thing?

Supremacy Claus

Piotr: If you ever want to clear a room of lawyers, bring up lawyer accountability. There is no one home. You will not get a responsive answer.

Matt

"what keeps a lawyer from filing a non-meritorious claim? Fear of reprisal? Fear of sanction? Or there own moral compass?"

Expense. Cost of wasted time. Ethics. Basically, you're using anecdotal evidence to reach a broad point. Which is fine, because at least you're willing (I think) to acknowledge the shortcomings in your argument. Namely, the lack of firm evidence.

It appears you are arguing for increased use of Rule 11 Sanctions. Or is there some other tort reform which you believe will solve the problems you perceive.

Piotr

Matt: I failed to actually address you exact question "What tort reform proposal would change that and create a perfect system where no mistakes were ever made? "

Of course mistakes will always be made. However, your argument is misplaced, "We can't fix the system entirely so let's just leave it alone." That's unacceptable. We should always strive to achieve the impossible. The fact that there is no fool-proof solution does not mean that we should give up. If we constantly demand perfection and seek to achieve that goal, maybe we can continually make the system better. I am certainly not in favor of giving in to any kind of defeatist attitude and giving up.

That having been said, there are many areas that could be improved. For instance, allow for recovery of attorneys' fees in more cases. I don't know about your jurisdiction, but in California, attorneys' fees can only be obtained if allowed by statute or contract. Judges have no equittable authority to grant attorneys' fees in non-meritorious cases. That power should be available to judges. Second, broaden the definition of "vexatious litigant." In California, the standard for being deemed such is nearly impossible to meet. Third, widen the definition of vexatious litigant to include attorneys. If an attorney brings enough bogus claims, he should no longer be allowed to litigate cases. Fourth, if an attorney gets sanctioned greater than a certain dollar amount, the court should automatically report that attorney to the State Bar. In California, attorneys are expected to report themselves for being sanctioned. These are just a few thoughts. There are many areas that could stand to be improved. The goal here would be to make attorneys afraid of acting heinously. As it stands now, I know of no attorneys who have any real fear of reprisal. We all know how far we can push things without punishment. Let's tighten that envelope somewhat.

Piotr

Supremacy Claus: "If you ever want to clear a room of lawyers, bring up lawyer accountability. There is no one home. You will not get a responsive answer."

I fear that you are right. So far, nobody seems to want to address that which is right in front of our faces. "Lawyer accountability" is an oxymoron. The fact that nobody can even admit to it saddens me.

Matt: First, you are absolutely correct that I am using anecdotal evidence. To be fair to me, so far there is still no true scientific evidence that smoking actually causes cancer. Does that mean that the use of correlative evidence and "anecdotal" evidence is any less valid? Do you disagree that there are insufficient mechanisms in place to make lawyers accountable for their actions? I would argue that the problem is so ubiquitous that there is no need for me to cite studies before we can acknowledge that which we, and the public at large, already know -- that lawyers can and do get away with far more than they should be allowed.

Second, yes, I am very much in favor in the much more liberal use of sanctions. In my jurisdiction, there is one judge who is far more quick to issue sanctions than the other judges. Not surprisingly, lawyers in front of that judge conduct themselves in a far more respectful manner. Yes. By God, yes. Sanction lawyers far more often.

Supremacy Claus

Piotr: When you say "sanctions", that is nothing more than "obey the law as written." The lawyer is above the law, with the other lawyer on the bench covering up, to continue to receive campaign contributions.

Matt

Piotr,

I'm with you. I'm not sure that you want to lump your proposal in with the "tort reform" crowd. It does not appear that it is simply tort actions you are discussing. Yours appears to be a much broader ethical complaint.

Piotr

Matt,

Yes and no. Yes I'm in favor of general reform in terms of heavier use of sanctions against lawyers. However, I'm also in favor of reforming the system to punish people for bringing frivolous suits. Introducing the possibility of the defense obtaining legal fees from a vexatious plaintiff certainly might be a worthwhile solution.

Jonathan

Evan -

Great post. The ad ran in most of the major dailies in California as well. It would be nice if there were some sort of comeback, but the facts don't seem to matter to the insurance industry and big business. For example, the insurance industry, despite two major hurricanes, had record profits. However, they want to limit the rights of plaintiff's to sue. Of course, they don't want to talk about that.

Or how about Allstate's spokesperson saying that Allstate was not designed to handle high severity, low frequency claims? In other words, they are not set up to handle the claims where people need them the most.

However, when a disgusting ad like this comes out, everyone is quick to rush to judge trial lawyers. Lets judge the attorneys who advised Enron. Or maybe the attorneys who helped Honda destroy evidence? Or maybe the attorneys who advise insurance companies to deny coverage when there is a grey area?

I come from a unique background. I was an adjuster and now I am a plaintiff's attorney. I have seen, from the inside, the workings of the insurance industry. Yet, due to their size and power, no one wants to talk about what they do.

It is quite interesting.

Jonathan

mythago

However, if plaintiff's lawyers can pander to pure emotion, why can't defense lawyers?

What makes you think they don't, Piotr? What, exactly, do you think nattering on to a jury about 'frivolous lawsuits' and 'greedy plaintiffs' and 'winning the jackpot' is--a thoughtful, measured appeal to the jury's reason?

I also find it odd that you first tell us plaintiff's lawyers rely on manipulating juries with emotion, and then that plaintiff's lawyers "settle, settle, settle." Make up your mind, please; do plaintiff's lawyer run settlement mills or try weak cases to dumb juries? You can't do both.

Supremacy Claus

Myth: I do not distinguish between the defense and the plaintiff bars. They are the ones that need only each other, and have drinks, mocking the public, after trial. The phrase "adverse third party" is neutral. It just means the "other side." The tortious lawyer could be for the plaintiff or for the defense.

We have settled the question, by their unresponsive silence, that lawyers exempt themselves from tort liability everyone else has, through a privity requirement. All the replies have been personal invective and mocking. These are signs of frustration. None has been lawyerly.

This immunity is the case, despite many enumerated, express duties of the lawyer to the adverse party throughout the Rules of Civil Procedure, the Rules of Evidence, and the Rules of Conduct. For everyone else, but the lawyer, violations of such rules would represent negligence per se. The self-dealt immunity of the lawyer from legal malpractice claims by the adverse third party is lawless.

Let's move on.

If 2 experts disagree about a case in good faith, a scientific controversy exists. Such a dispute can only be settled by obtaining more scientific data outside the court. The jury is incompetent to decide that scientific question. The experts, at that time, are incompetent to settle it. Only validated application of the scientific method can settle that dispute. That may take years to achieve, if ever. The theatrics of both sides, any attempt at persuasion by lawyer salesmanship, violates the fair hearing portion of procedural due process rights of the tort defendant. Why does this self-evident point have to be made by a member of the public, and not by the Supreme Court? Criminal cult enterprise rent seeking. The SC will not write a decision that reduces lawyer employment, unless forced.

The lawyer run tribunal is competent only to settle questions within jury knowledge, or undisputed expert testimony. The use expert testimony, if any element is disputed in the least, violates the Constitution. Disputed expert testimony is lawless.

If one expert disagrees, but in bad faith (lying), that expert should be held accountable. Is that possible? No. The lawyer has dealt his lying expert immunity from any accountability, too. He has filed lawsuits against professional societies that tried to rein in lying experts, to intimidate and ruin them, to preclude even moral disapproval.

The public senses the lawlessness, injustice, and self-dealing of the criminal cult enterprise. That is why it hates your profession. That is why lawyers hate your profession. What you lawyers like is the money. Period.

Supremacy Claus

Evan: I read your Tort Reform post. Funny. I will not dignify it with detailed rebuttal with data. Let's keep it lawyer safe, at the 4th grade math level. That is the limit of lawyer math because it is the highest grade needed to count money.

A doctor has a malpractice premium of $250K. The lawyer dominated legislature has passed a law making the license contingent on its being paid up. The doctor must pay before seeing the first patient by lawyer passed law. The lawyer dominated legislature has passed Medicaid and other laws making the fees ruinous, sometimes barely covering overhead. The doctor could choose to work for free, out of love of patients. However, she cannot. She would have to borrow money to stay in business, thanks to the lawyers. This argument involved negative numbers. I have confidence you could follow it. If she stopped delivering babies, and did only office GYN, her premiums would drop by 2/3 (sorry fractions are from the 5th grade), and she would do well. Same doctor, same level of skill, same carefulness. No increase in her error rate. That means that the scarcity of baby delivery services is caused by lawyers' filing frivolous lawsuits. You made that point yourself. Even in the corrupt, unconscionable, national disgrace, judicial hellhole where you flop around, 7 of 11 verdicts were in favor of the doctor.

If she said in her ad, I am leaving because I have been driven out by economic consideration and would like to make money, any lawsuit involving patient abandonment, if deemed for money reasons, could land her in punitive damages territory. You lawyers have achieved that fear. You lawyers intimidate the doctors into insincerity, then you lawyers blame the doctor for insincerity. Nervy.

I know you lawyers are not idiots. You lawyers repeatedly say so in your websites. The question remaining is one of you lawyers' good faith.

mobar

Piotr: Regarding vexatious litigants, I did some quick google research on the California regime and I have some concerns. If I'm reading the rule correctly, it's directed at individuals who sue and lose 5 claims (other than small claims) in a 7 year period. Now, a plaintiff managing to bring five suits in 7 years and not winning or settling one of them is certainly not representative of the general population. I've gone my whole life without suing anyone. (The way the rule is written, it seems to be directed at the dreaded pro se plaintiff clogging up the system and never bothering to learn what the hell he is doing.) A plaintiff that actively involved in the system without success is probably misusing it. But lawyers? It's a plaintiff attorney's job to sue people. The attorney's active involvement in the system is his job, not a warning sign. And you could have a scenario where a lawyer files 250 claims, brings 245 of them to successful resolution but you'd pull his license for losing 5? That's absurd. And it would be terrible for the client. Defendants would probably track those numbers and have additional leverage in negotiations (e.g. you better settle this, because if you lose, you're done.)

And why haven't you addressed malicious prosecution? My quick google search also revealed that California is in the minority of states that permit claims of malicious prosecution against lawyers to proceed when the claim was continued without probable cause, not merely instituted. (Zamos v. Stroud)


Matt

"Introducing the possibility of the defense obtaining legal fees from a vexatious plaintiff certainly might be a worthwhile solution."

Don't most states already have this? In mine, it's called an offer of judgment. Are we just progressive? It would be a first if we were.

Jack Olson

That billboard doesn't create anti-lawyer sentiment, it reflects it. The sentiment is the problem, not the billboard, and the solution to the problem is to identify the source of the hatred of lawyers which it expresses. When lawyers are primarily the servants of the wealthy and the criminal, their protection and promotion of the interests of the wealthy and the criminal makes them the social and economic enemy of the less-than-wealthy, law abiding citizen. People wouldn't hate you lawyers they way they do if you served the general public instead of the small minority to whom you reserve access to legal rights. If dentists provided dentistry to just 10% of the public at the expense of the 90% to whom they denied it, as lawyers do access to legal rights, you'd see billboards asking you not to feed the dentists.

Piotr

Mythago: "What makes you think they don't [pander to emotions], Piotr?" They absolutely do. I acknowledged that in my post. My point is that you can't ask one side to refrain from pandering to emotion while reserving your right to pander to emotion. If plaintiff's lawyers have the ability to try a case based upon emotion and not fact then defense lawyers should have that same right. As it stands, both sides do it all the time. I am saying that neither should be allowed to do so.

As for the remainder of your post: I think you're either missing, or intentionally avoiding, my point. No lawyer should be able to even TAKE a case without merit; to push it to settle or try it before a dumb jury. The point is that no matter what an unscrupulous lawyer does with a case, the case itself should have merit. As it stands now, lawyers are not afraid of taking cases without merit. There is no punishment which is regularly doled out for such an offense. There should be a more strict policy in place which punishes lawyers for either bringing cases with no merit or for making assertions with no basis in fact or reason.

Matt: In California there is no way for a successful defendant in a tort case to obtain his/her attorneys' fees from the plaintiff or plaintiff's counsel.

Mobar: I do not agree with California's definition of a vexatious litigant. I do not feel that a lawyer who loses 5 cases should lose his license. However, a lawyer who files 5 lawsuits which have no basis in fact or reason and for which the lawyer has no good faith basis for believing in the merits of his client's claims, should no longer be permitted to practice. And you're right -- California's definition of vexatious litigant as defined in CCP § 391 is directed to pro pers only. I believe that the definition should be expanded to include attorneys who bring suits on behalf of clients where the claims have no merit. And by no merit -- I don't mean you lose. "No merit" means that an objective, reasonable attorney would consider the case to lack true merit.

As for malicious prosecution -- in California that's a joke. In order to sue for malicious prosecution you must first take your case to trial and succeed and then you must file an entirely separate civil action for malicious prosecution. If you get into a 2 mph car accident, for example, and the plaintiff absurdly claims that s/he is forever paralyzed as a result (assuming that s/he is lying), precisely how long do you, as a defendant, want your life sucked away? The P.I. suit may not be presented for two years (statute of limitations in CA is two years.) From there, the suit may go on for as long as 18 months. Once you've gotten it to trial and won, you'd have to file a malicious prosecution suit which itself could go on for another 18 months. That's five years. At the end of that five years, do you really think this fraud plaintiff is going to have any money? No, they are very often judgment proof. Nobody wants to waste five years of their lives to chase after such a fruitless endeavor. Imagine further that this plaintiff offers to settle the case ten days after the accident for $15,000. Which would you do? Your insurance company pays $15,000 or you choose to waste your mental and emotional energies on five years of litigation that is going to net you nothing. That's a no-brainer.

Malicious prosecution is simply not a viable option for the standard defendant who believes that s/he is being abused in court.

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