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.