Sunday, December 30, 2012

What's Wrong With Lawyers

I once heard that the law was the world’s second oldest profession. Does that mean lawyers were created to service the world’s oldest profession?

Perhaps that explains all the lawyer jokes.

I have proudly taught law for 40½ years, or somewhere between 5,000 – 10,000 thousand law students who are now practicing lawyers, the vast majority of which are competent, ethical attorneys at law.

We live though in a litigious society, the “Sue Me” Age, in which lawsuits are filed against seemingly anyone at anytime for anything. Lawyers are quick to draft the complaint because that’s what the law allows them to do in a race to the courthouse.

Once upon a time barratry and champertry were illegal. Today, ambulance chasing is legal, as is lawyer advertising.

Judges in the middle of the Twentieth Century opened up the courthouse doors to new theories of relief and new defendants. Some remedies do not even require a present injury. Our personal injury law, commonly known as Torts, was partially transformed into a victims compensation system. 

The plaintiffs’ lawyers are called “trial lawyers.” No such single obloquy attaches to the defense attorneys, although they might be called mouthpieces or shills for insurance companies, Big Oil, the tobacco companies, etc.

American Tort Law became a lottery system. The odds of winning a large jury verdict are small, but the costs to the claimants are usually small since their attorney normally absorbs the costs if they lose. They can always hope the defendant will settle for the “nuisance” value of the suit, which is less than the costs of actually litigating the case, which are large even if successful. If they win, they win big, with their lawyer receiving at least a third of the proceeds.

The odds of winning the Tort lottery are greater than MegaBucks or Powerball.

They can also hope for a sympathetic jury, who will give them the benefit of the doubt, if the trial judge lets the case go the jury rather than tossing it.

One of the realties of modern America is that tragedies are but chum to some trial lawyers. For example, the victims in Newtown have barely been laid to rest and an attorney for a six year old survivor has filed a claim with the State of Connecticut seeking $100 million in damages.

Irving Pinsky said “Jill Doe” was in her classroom and “over the loudspeaker came the horrific confrontation between the fellow who shot everyone and other people…. Her fiends were killed. That’s pretty traumatic.” His filing claims Jill Doe has sustained “emotional and psychological injury, the extent of which has yet to be determined.”   

I have utmost sympathy for the victims, survivors, and families, but Irv has jumped the gun, or as the phrase goes "jumped the shark," in his lawsuit and is enjoying his 15 minutes of media fame. He gives trial lawyers a bad name.

He now claims the purpose of the $100 million lawsuit is to prompt school safety. One act, which saved lives, was the open PA system which provided warning to teachers to implement their safety plan – the plan they had practiced a short time earlier.

Had Irv engaged in some rudimentary legal research, he also would have discovered that courts have general been unsympathetic to lawsuits brought against third parties, including schools, in these random acts of mass murder by crazed killers.

A second suit, which is causing controversy, was filed on December 21 in Federal District Court in San Diego by eight sailors and the infant child of one of the eight, who were allegedly exposed to radiation during the Fukushima nuclear disaster in Japan. The infant was a fetus in one of the eight when they were serving on the nuclear powered U.S.S. Ronald Reagan aircraft carrier.

The suit is against TEPCO, the reactors owner, accusing TEPCO of conspiring to lie or mislead the public about the extent of the radiation exposure. Strong reason exists to believe this allegation is true, but substantial questions arise about the injuries suffered by the nine plaintiffs. Be that as it may, they are seeking $40 million each and an additional fund of $100 million to cover medical monitoring and future treatments although they have no current injuries of legal consequence.

The large Navy presence in San Diego might provide them a sympathetic jury.

A third example is the escalating cost of medical care. One reason is the extensive malpractice litigation, which encourages doctors to practice” defensive medicine,” which is the administrating excessive x-rays, tests, and other diagnostic procedures to minimize the risks of malpractice litigation.

ObamaCare did not address Tort Reform because that would offend the trial lawyers, who are major backers of the Democratic Party.

It’s these examples which give lawyers and the law a not totally undeserved bad image.

Never forget the law delivers justice to victims, represents the accused, and reforms society. We hear about the bad lawyers and their crazy antics and lawsuits, but they are but the few, just as I always hoped that a few of my former students would never practice law. 

Lawyers who made a difference to the world include Abraham Lincoln, John Adams, Nelson Mandela, Mahatma Gandhi, Barack Obama, Thurgood Marshall, and Branch Rickey.

Think of them when you think of lawyers.

No comments: