It’s so easy in today’s political scene to stir up emotions for political gain. Politicians routinely do it with issues like immigration and abortion, and usually the bumpersticker approach is not very useful in arriving at real solutions.
One big political hotpotato is tortreform. Virtually everyone agrees there is room for improvement in the court system, but far too often politicians take the everpopular route of going after the easiest of targets – attorneys. After all, in today’s society certain targets are fair game for anyone to attack with impunity, white males, illegal immigrants, the French, and attorneys among them. (Mitt Romney might put Mormons on the list.) The attack on attorneys is generally coupled with a pitch for loserpays, a supposed panacea for our legal system woes. It’s ironic that reform hardliners, who would ordinarily scoff at anything European, often hold up Great Britain as a shining example of how our legal system should work, because of, you got it, loserpays.
In the recent Republican debates, Rudy Giuliani tried to score some easy points by attacking Fred Thompson for not supporting some tortreform measures, including loserpays. Of course he cited the case of the drycleaners who were sued by the wacko administrative judge for $50+ million over a pair of pants. These poor folks apparently incurred an astronomical sum in attorney fees in the process. As crazy as that case was, it does not make a case for loserpays. Sanctions, yes, but not an across the board loserpays system.
A blanket loserpays system (let’s call it LP), a mandated award of attorney fees to the prevailing party in every case, could be a disaster in our current system. If righteous cases always won and bad cases always lost, LP would be a good thing. But that’s far from the case. Experienced trial attorneys know full well that truth does not always prevail in our system – not even close. In fact, anyone who’s observed almost any highprofile case in L.A. knows that.
Imagine there's LP and you’re in a car accident. Someone runs a red light and seriously injures you. You try to settle with the other party's insurance but the other driver claims you’re to blame. You could not afford the risk of taking the case to trial! If you lost (believe me, it could happen) YOU would be liable for thousands and thousands of dollars in attorney fees. You would have to accept whatever measly offer the insurance company made. Can you imagine? Someone runs a red light and you’re seriously injured, and not only do you not recover – maybe the other guy is a good liar – you’re stuck paying the insurance company’s lawyer fees?
Look at the doctors sued by John Edwards based on what most consider junk science. Apparently he WON the cases he took to trial. Edwards would have been even more enriched and the doctors would have had even more salt in their wounds (let alone more financial ruin) if there had been LP in place.
Even now, without LP, there is a tendency on the part of insurance companies to make lowball offers in injury cases because they know jurors tend to have a negative view of plaintiffs and attorneys. They are cavalier about going to trial because they know many jurors enjoy the opportunity to “stick it” to plaintiffs, and they will often blame the plaintiff that they are required to be there in the first place. They’re not allowed to know that the plaintiff may have made great efforts to settle for a reasonable amount prior to trial. Insurance companies are especially likely to take advantage of claimants who are not represented by an attorney. If LP were implemented with no other change, offers would evaporate. “Go ahead! Take the case to trial! And when we win we’ll come after YOU for $200k in attorney fees!”
Only the extremely poor or extremely rich could run the risk of going to trial in many cases if there were LP, whereas insurers could roll the dice every time. There would be more legal bullies trying to extort settlements because innocent targets could not afford the risk of putting up a fight. Southern Californians, remember the Trevor Law Group?
The fact is LP does exist in many situations. Most contracts have a LP provision. Some statutes provide for the award of fees in certain situations already where a legislature has decided it would make sense. Also, sanctions to cover attorney fees can be awarded in the case of a frivolous lawsuit. In the infamous drycleaner case there was a motion for attorney fees brought at the conclusion of the case, but it was dropped for some reason. From all accounts, that case should be exhibit A for the award of sanctions for a frivolous action, but not an example of why there should be widesweeping loserpays.
Many believe that LP doesn’t currently exist in this country because attorneys have a vested interest in the status quo. It’s unfortunate that so many have a “proctologist’s view” of the legal profession. Obviously there are bad apples in every group and there certainly are many bad apple attorneys. But having been a California attorney for over 20 years, my experience is that, in general, attorneys are a very decent crosssection of society. Contrary to popular perception, there is a constant effort to improve the legal system by courts, legislatures and bar associations. Almost all cases are arbitrated or mediated, and the vast majority settle before going to trial. Meritless cases are routinely thrown out of court. There is much that goes on in the system that most nonattorneys know nothing about, and the system works much better than it is given credit for. But in the media you only hear what makes the news – like the drycleaner case.
What’s the answer? Wherever possible, people should be insured. If the drycleaners didn’t have insurance to cover that crazy lawsuit, chances are they do now. Most people don’t realize that their homeowner’s policy will often cover them in many situations where they find themselves in a lawsuit. Certainly if you’re going to run a business you need adequate insurance. Secondly, sanctions should be awarded more frequently for frivolous lawsuits.
Unfortunately, our system isn’t perfect, but LP wouldn’t make it so; in fact it would likely exacerbate the problem. Ultimately, with every bad jury verdict or award, there was a jury that made it. Until common sense can be legislated, problems with our legal system will persist.
As for Rudy Giuliani, this isn’t an attack on him (in fact, I’ll likely support him) but a criticism of the tendency of most politicians to grandstand, pander, soundbite, and sloganeer on complicated issues that need a closer look.
