The cost of justice (part 1)

Is the cost of justice in the United States worth the price we pay? The United States invests more of its gross national product than any other country in resolving our disputes with one another. In my own personal experience, I handle products liability cases throughout North America, that is, in both the United States and Canada. The same products I represent are sold in both countries in comparable volumes, but there is almost never a lawsuit filed against those products in Canada, whereas I keep extremely busy defending the same products in the United States. Presumably, the same incidents occur in Canada as in the United States, but no one seems to bring a lawsuit there. Does anyone believe the Canadians feel they are receiving less justice than we are in the United States?

My favorite story comes from a dinner conversation with a Chinese law professor when I asked him how a personal injury claim would be handled in China. He did not even understand my question, so I posed a typical hypothetical case to him and asked him first how the medical bills would be paid to the injured worker? He responded that in China there were no medical bills because everyone had free health care (a topic worthy of a future blog). So I asked him about payment of lost wages, to which he pointed out that all employers in China continued a worker’s salary while he was sick or injured so he would never lose any income from an accident. Finally I asked him about “pain and suffering,” to which he replied with a deep smile that betrayed my cultural ignorance, “For pain and suffering we have acupuncture.”

So, are Americans better off than the citizens of every other country in the world because we sue each other every day for wage loss, medical bills, and pain and suffering? I suggest that this question would likely be answered very differently by a group of lawyers than by a group of their clients who have gone through the American legal system.

In my novel, The Litigators, the lawsuit, which is the focus of the book, is entirely typical of lawsuits filed every day in the United States, and the process in which my characters find themselves enmeshed is also highly typical. If you decide to read the book, I suggest you ask yourself this question all over again. You may be surprised at your answer.

Join me next week for More about the cost of justice in America.

Who EXACTLY represents the public's interest in civil litigation?

Civil cases between private parties clearly impact the general public; time is used by judges and court personnel, and decisions made by judges and juries can have a profound impact on the lives and businesses of countless people. I have heard many lawyers promote our tort system by arguing that it is very effective in preventing so-called transgressions by corporate America. Their view is that the threat of a lawsuit is key in preventing negligent behaviors before they occur. Of course, the lawyers have not actually been hired to represent the public’s so called best interests; they are hired only to get the most they can for their one client. In fact, no one represents the public’s interests in civil lawsuits, not even the judge, whose sole job is to referee the dispute before him.

What I find most troubling by the argument that these lawyers are acting in the public’s best interests is that they have not asked the public to define what its best interests are. Instead, they somehow equate the public’s best interests as identical to the amount of money they can get for the one client they actually do represent.

But what gives an individual lawyer the insight to know what is and what is not in the public’s best interest? Is the public’s best interest served by causing doctors and hospitals to run countless unnecessary tests just to avoid medical malpractice claims? Is the public’s best interest served by making the cost of doing business and the cost of buying insurance so high as to force companies out of business or to price their products so high as to make them uncompetitive? Is the public’s best interest served by filling operators’ manuals with dozens of useless warnings that very few people ever read, thereby reducing the importance of the few warnings they actually should read, just to have some warning in print to cover any potential lawsuit the company might face?

Do lawyers ignore their clients' best interests?

Do lawyers’ fee agreements create an inevitable conflict of interest with their own clients? In 42 years of trying lawsuits I have seen just about everything. And some of the things I have seen worry me that lawyers are not doing enough to make sure that their clients’ best interests are protected. Part of the problem is that lawyers see client’s interests differently than the clients see them, a problem that I have addressed in a previous blog.

Another part of the problem is that lawyers’ fee agreements create incentives that do not necessarily benefit the clients’ real best interests. How often do lawyers working on contingency fee agreements for plaintiffs “underwork” their clients’ cases because a quick, even improvident, settlement increases their own earnings? How about lawyers working on hourly fee agreements for defendants, where their temptation is to overwork cases because an early settlement reduces their overall fees? I have seen law firms I characterize as “Litigation Mills” pushing cases through their offices like widgets on an assembly line. Their business success depends on client volume and turnover, not on maximizing any individual client’s recovery – more akin to the Walmart approach than the Nordstrom’s approach. If a case can be settled quickly, even for an amount that is less than what the client really deserves, the lawyer’s “productivity” improves, that is, his actual earnings per hour go up, while the client’s settlement goes down.

I have also seen other law firms who take the opposite approach and pursue a very aggressive strategy of demanding far more than the cases are actually worth and simply “rolling the dice” in hopes of a big verdict. These lawyers’ business success depends upon winning big every once in a while. They try cases that should be settled because of challenging liability problems to go for the big verdict that fattens their wallets and gives them nice publicity in the newspaper. It does not really matter to the lawyer if he loses 75% of his cases as long as he scores really big once in a while. Of course it does matter very much to the client, whose sole chance of success is the one case his lawyer decides to gamble away on a crapshoot.

The book is a pleasure...

With all the recent buzz about THE LITIGATORS (and by that, I mean all the new interest in my book!), I recently had a great review done by Norm Goldman of Bookpleasures.com, and even had an e-interview! Follow the links below to read the full pieces!

"The novel stretches far more than what appears on the surface as it engages its readers in the lives and hearts of its characters...it is a reminder that unfortunately there are far too many lawyers that don't consider the frightful consequences that can result from long and drawn out legal procedures and maneuverings.

What I found most surprising about The Litigators is that it is authored by someone that you would expect would be an unwavering defendant of litigators when you consider that he is an attorney who has tried over 150 cases during a career that has spanned thirty-five years. However, as mentioned in Arthur's bio, he 'was prompted to write The Litigators by his love for the law...' ...And to this I say, Amen!" ...read the review...

Norm: What motivated you to write The Litigators?
Lindsay: I had two goals in mind. First, I have always dreamed of writing "The Great American Novel" and believed my first novel should focus on a subject matter with which I was professionally experienced. The focus of my legal career has always been the defense of products liability lawsuits, and the focus of my avocation has principally involved science and the environment. So that's what The Litigators is... 

Norm: How did you go about creating the characters of Henry Holten, Allison Forbes and Dillon Love?
Lindsay: All my characters are composites of real lawyers with whom I have had cases, but enhanced to capture the idiosyncrasies I wanted to highlight in order to make them come alive as people and illustrate the character flaws I wanted to develop with the story. Like most novels about lawsuits, this one is also about good versus evil, but in The Litigators, there is a major twist to this theme...   

                     ...catch the full answers in the full e-interview...

What does it mean to "win" a lawsuit?

Do lawyers really understand their clients’ needs or do they just push cases through the court system as if a lawsuit was like an athletic contest, with the sole objective to win at any cost? Law schools have historically trained lawyers on how to “win” lawsuits. By “win” they mean triumph in court, as though victory is defined by the team that scores the most points. But athletic contests cannot be resolved by any means short of an all-out battle to the bitter end. That is their purpose, but it is not the purpose of a lawsuit.

It’s really interesting to ask both lawyers and their clients what their definition of a “win” is. I have done this many times, and whenever I pose the question to a lawyer, the response almost always focuses on some grand victory in a courtroom. When I ask my clients this question, the words “victory” and “courtroom” are never mentioned. Most clients talk about a “fair resolution” or “just compensation.” And they almost always talk about what it will cost them to achieve this result. Whether their cost is the lawyer’s one-third of the total recovery or the hourly fees charged by their attorney matters not; they all believe that justice that is expensive is not justice at all.

My novel, The Litigators, focuses on this challenging issue – does the high cost of justice in the American legal system today erode the quality of justice we have a right to expect? Does the winner-take-all approach to litigation produce a just result? When you have finished reading this book, ask yourself this question: who “won” the case? You may be surprised at your own answer.

Join me next week for Do lawyers’ fee agreements motivate them to ignore their clients’ best interests?

The theory of justice

Why is it that when a lawsuit is filed even the people who win often come away with a sense that they actually lost? In the United States we have what lawyers call the "adversary system.” The theory behind this approach to justice is that if both parties fight equally hard to persuade a judge or jury of the virtues of their respective positions, eventually the truth will come out and justice will be done. This theory of course presumes that that battle at hand is not between the local high school football team and the Green Bay Packers, or between Bill Gates and some homeless chap. Unfortunately, any system of justice that is dependent on the equality of financial resources and the equality of the respective lawyers is fundamentally flawed. True, much of the time the battles are between relative equals, but often they are not, and in these latter cases justice is not possible in our adversary system.

Another flaw in the theory favoring an adversarial system is that it presumes that everyone with a dispute actually wants to spend the money needed to support the adversary system. By its very nature, the adversary system is an extremely expensive way of resolving disputes because, to achieve equality of bargaining position, both sides must take every conceivable step to improve their positions. If one side does more than the other, the likelihood that a just result will be realized diminishes drastically. So both sides fight as hard as possible. Not only does this dramatically increase the costs of resolving the underlying disputes, it also dramatically increases the stresses imposed on parties who are forced to spend their energies attacking each other. No wonder even the winners leave court questioning whether justice has been done; after they have been ravaged financially and raked over the coals personally.

This is why I wrote my novel The Litigators – to bring to the forefront the enormous wastefulness of the American system of dispute resolution. If this topic interests you, I suggest you read the novel and then ask this question when you are done: Who won the lawsuit? The answer you give may surprise you.

Join me next week for What does it mean to “win” a lawsuit?