How to Feed a Lawyer (and Other Irreverent Observations from the Legal Underground)

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Guidant - we put the fib in defibrillators.

The Times report said makers of defibrillators and pacemakers, which regulate heart rhythms, must file annual reports with the FDA that say how often, and why, their devices fail. The level of detail in these reports, which are submitted on paper, is far higher than is required for other medical devices because of their life-sustaining roles. Those filings also include much more data than the summaries that companies give to doctors.


Thank goodness for all those high and mighty "businesspeople" who have an unjustified feeling of superiority over those "bloodsucking" lawyers. After all, were it not for "businesspeople", we would not have all those great "value added" products like exploding Ford Pintos; Corvairs that were "unsafe at any speed;" infant clothes that are more flammable than a rag dipped in gasoline; worthless magic pills that enlarge your penis, miracously melt off pounds, or improve our "sexual performance"; household products that are carcinegous; herbicides that contaminate our rivers and streams; tobacco products that kill tens of thousands of people a year; combines and other machines that dismember limbs because the "value added businesspeople" decided not to install a $2 safety guard; and Chrysler minivans that have children flying out the back because the omnipotent "businesspeople" did not want to spend a quarter on a stronger rear door latch. I could go on forever, but you get the point.
By the way, it is also businesspeople like Kenneth Lay, Bernard Ebbers, Dick Scrushy, Dennis Kozlowski and countless others of their ilk who have lined their pockets with hundreds of millions of dollars stolen from shareholders and employees. My, it must be nice for "businesspeople" to have such an inflated sense of self worth.


Truth be known, both business people and lawyers have a grossly inflated sense of self worth. Lawyers like to pretend that they're all about helping the "little people". Businessmen believe they're vangards of wealth whom, left unrestrained, would bring to us an era of unrestrained properity.

Neither self vision is correct, although to a small degree each is true. The added truth of it is that the law is a business, and lawyers, although they do not care to admit it, are businessmen of a type. So we market products equally as worthless as many of those that are offered on off hours of television, and we can be just as destructive as the more destructive industries.

In the end, the simple truth is that Calvin Coolidge was wrong. The business of America is not business, as most people in the end just want to have a good life. Law can't guarantee that, but it can aid it if properly focused, and business certainly can't gurantee that, and in fact often works against it by treating people like time units. Neither can be left to its own ends, and remain beneficial.


I've often wondered why many trial lawyers seem to differentiate between big business (bad) and small business (good). For example, even while railing against many industries, John Edwards and John Kerry served on small business committees in the Senate.

I'd be curious to hear plaintiff's lawyers views... Is it easier to villify a large, faceless company, rather than a small business providing local jobs and often associated with a local entrepreneurial success story? Or are the economics just so much more compelling to pursue large, wealthy companies? Or are big businesses truly more evil than small ones?

Matt Bishop

Jeff, I think you're a little off here. What matters isn't the size of the company, it's the act. The reason you hear so much about large entities getting sued is because they act on such a greater scale, and the dollars involved are so much greater. When Joe's Texaco misleads a customer about the work they performed on their car, USA Today doesn't care that much because we're probably talking about a few thousand dollars. But when Sears misleads all their customers (fictitious example) then we're talking about millions.

The former case is taken by thousands of lawyers all the time in nearly every little town there is. Typically not on a contingency, however. By the way, I think you mean lawyers who represent individual plaintiffs in personal injury cases or product liability cases. I may be wrong, you may mean anyone who represents a person or entity suing a business, which would include business against business litigation.


Matt-thanks for your feedback.

But I still think there is something to size and the "localness" of the defendant. Consider a healthcare example...the case of a local doc (essentially a small heathcare business) sued for med mal vs. a multi-national pharma company.

Doctors seem to be much more sympathetic defendants than faceless big pharma. Why? I'd venture one reason is the doc is a member of the local community, and is harder to demonize.


If you were to bring a lawsuit against, say, Pol Pot, and presented accurate evidence of his prisons and killing fields, would that be "demonizing" Pol Pot? The plaintiff does best with a defendant, large or small, individual or corporate, whose tortious conduct angers the jury.

Put a local doctor behind the wheel of a car, have him negligently cause a car accident, and the jury may well be very sympathetic to him. Put that same doctor behind the wheel of a car (or in an operating theater) with a blood alcohol content of .24 and the jury will have a very different perspective. Have him carve his initials on a patient as an expression of pride in the surgery he just performed, and the jury will draw its own conclusions.

Have a store stock items on high shelves where they occasionally fall on the heads of customers, and the jury may well find negligence. But add to the mix a memo in which the company discusses the number of times boxes fall on customer's heads, and concludes that despite some very serious injuries it remains far more cost-effective to injure customers than to store extra merchandise in a safer manner, and the jury will probably become less sympathetic to the store. Add to the mix a store employee who is caught lying about how the accident occurred, and a store manager who destroyed the original accident reports which contradicted the lying employee (but somehow missed a copy that was located during discovery), and the jury's sympathies will likely again shift.

But to call somebody a liar, crook or thief before the jury has drawn that conclusion for itself (and in some cases afterward)? You do that at your own peril.

The Sardonic Lawyer

The tacit rationale for disparate treatment of small and large businesses is rooted in the statement Harry Truman kept displayed prominently on his desk - "The buck stops here".

Small businesses have a face. When a bad decision is made, it's relatively easy to figure out who is responsible, so for the most part small businessmen take greater pains to make responsible decisions across the board. Small businessmen don't have large amounts of political influence and can't pay for fleets of attorneys to drag out litigation indefinitely in an effort to win by attrition.

Large businesses, on the other hand, are often quite adept at diffusing responsibility for decisions and otherwise covering their tracks in such a way that it is difficult for anyone to point out one or more specific individuals as being culpable for the conduct at issue. Because the individuals working for the business know this, they are more inclined to make dicey calls with a cavalier attitude toward those who may be affected. If anything goes wrong, the attorneys at BigFirm Sweatshop LLP are on retainer to hide the bodies and grind down the other side.


I've often wondered why many trial lawyers seem to differentiate between big business (bad) and small business (good).

Maybe I need to get out more, but I don't see many lawyers doing this. It is, actually, often small business that have the worst behavior, because they are run more closely by individuals or because they are so tight for operating funds that they cut corners.

An acquaintance of mine used to work for ADA enforcement--which generally meant suing small businesses that did not make accomodations. She used to feel bad for many of these companies. Then she learned that a non-profit entity had gone around to some of those same businesses, offering to help them with ADA compliance AND to fund necessary modifications (ramps, handholds, wider doors). Less than 1% of the businesses took the non-profit up on its offer; they simply didn't give a rip. Until they had lawyers knocking at their door, that is.



I think there is an element of truth in the original posting. But not in the way which gives you offense.

It is easy to name hundreds of products entrepreneurs and businesses have developed that greatly enhance the quality and length of life. How about innovations like antiarrhythmic drugs, pacemakers, CT and MRI scanners, e-commerce websites, commerical aircraft, geosynchronous satellites, cell phones, wind turbines, solar panels, Co2 and NOX emission control devices....

What do you think are trial lawyers' greatest innovations? I would imagine the class action is on your list. What else?

I think trial lawyers are very smart and creative (actually as someone in favor of tort reform I think you're too smart and creative). But does the rigidity of law impose more impediments to true innovation than in business, science and engineering?


Jeff: I wouldn't say I was offended by the original posting. The author just missed the mark a little, not so much in his comments about creativity but in the way he simplistically equated Vioxx with "value" without taking into account that the design, testing, and marketing of Vioxx might have been bungled in a way that detracted from its value and made it a liability. (You have to read the whole post to see that, not just the part I quoted.) If I'm right about the bungling, it wasn't lawyers who did it--who took away whatever value Vioxx had--it was the businessmen at Merck, the same ones who the writer implied were "creative" and "leaders." That's why I thought the original post that I wrote about was pretty silly.

I'm sure the author of the post was probably very well-intentioned. He writes well and even went out of his way in the post to compliment lawyers on certain points. Still, though, he was misguided, and I'm hope he realized that if he put his opinions out there on a weblog, some might disagree. I happened to disagree. It's like when you write an Op-Ed in the newspaper--some readers are going to write in and complain about your opinion in letters to the editor. But that's not necessarily a bad thing--the Op-Ed editors like it when opinion pieces generate conversation.

As for the writer's comments about creativity--are lawyers or businessmen more creative--I think that's just sort of a silly debate. Both lawyers and businessmen are "creative" in many ways, and in roughly the same amounts. Meanwhile, neither group is "artistic" the way musicians, artists, and poets are. That's not a criticism of lawyers and businessmen. Lawyers and businessmen simply aren't artists. It's not their function to be artists.

As for your question about lawyers and their innovations--well, I never claimed lawyers were innovators. It sure doesn't seem to me that they are. You mention class actions, perhaps as a joke, but class actions aren't an innovation--they've been around in one form or another for just about forever. Maybe someone else would say "democracy" or some variant of that, but I think when you say "innovations," you're looking for products or inventions.

Does it matter whether lawyers are innovators? Not to me. I don't hold myself out as an innovator. I'm just a guy with a phone number who people can call if they need legal advice. Usually when they call, they're pretty sure they want to sue someone, but that's often a bad idea for one reason or another and I find a way to talk them out of it. That process of talking them out of it--well, that could be considered an innovation, I suppose.

Of course, after I'm finished telling prospective clients why they shouldn't sue, I also say I'm just one lawyer and that they should get another opinion. That's probably exactly what they do, and they probably end up suing anyway. So in the end, even if I am an innovator, my innovations are cancelled out by other lawyers. Oh well.

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