About ten to fifteen years ago, the insurance industry, seriously hurt from investment losses, began a smear campaign to disparage trial lawyers in the national litigation community. The chief architect of this campaign has been the US Chamber of Commerce and the insurance industry itself, both of which, ironically, have numerous attorneys in their membership.
This campaign has taken on many faces and names. It has spawned “tort reform” organizations or “institutes against Lawsuit Abuse” (all fronts for US or local Chambers of Commerce). These organizations have disseminated false information about personal injury or trial lawyers and seriously injured accident victims. The game played by these anti-justice, pro-business, concerns is to paint all lawsuits, whether serious or not, as “lawsuit abuse” or “frivolous lawsuits”.
This campaign has been effective; trial lawyers have taken a hit in the national and local communities. Why has this strategy worked? Because private insurance interests have played into your fears that settling legitimate cases will result in higher insurance and health care costs. Is this true? No. Does that matter? No, because you, the general public, is buying this garbage and blindly accepting it as the truth.
Here is the truth: Insurance companies love to take people’s money in premiums, but they just hate paying out your own money in legitimate claims. When they exhibit bad faith and refuse to timely and adequately pay a claim or lawsuit, the personal injury or trial lawyer is the white knight that pursues and punishes the insurance company "bad guy".
Those "lawsuit abuse" “public interest/peer pressure” groups are funded by the insurance industry and the Chambers of Commerce because big business/big insurance/big pharmaceutical does not want to pay for their own bad risks taken; they don’t want to lose money on their bad investments; they prefer to act in bad faith and they would prefer that you and I paid for the mistakes and risks that the industry made and took. They would rather paint non-political, seriously injured accident victims and their attorneys as the “bad guys”. The Chamber and the insurance industry do not care about the rights of the individual, the serious physical and financial plight of the injured or disabled; all they care about is business and profits. If business is good and profits are secure, who cares about the plight of injured or disabled people?
The answer is: One lonely professional, the trial lawyer. In the business of insurance and the law, the trial lawyer is only person who cares about the plight of the injured and the disabled. Does a plaintiff’s trial lawyer make a large fee for what he/she does? Sometimes, but the same lawyer backs up that fee by obtaining a well-deserved settlement or verdict for the client. I have never seen anyone go into a legal battle, without counsel, over the consequence of an accidental injury, and do better than he/she would have done with a lawyer. The plaintiff’s attorney evens the odds for the plaintiff, and the lawyer does so while risking everything. If the lawyer does not collect for his client, he/she gets no fee. The lawyer provides services contingent upon litigation outcome.
Recently, there was a vote in the United States Senate to limit plaintiff’s attorney fees in medical liability/medical malpractice litigation. The bill was soundly defeated, as it should have been. Such legislation would have a chilling effect on an injured person’s ability to secure a quality attorney, who should be paid according to the skill and performance rendered. The bill was a purported attempt by right wing Republicans to “reduce the cost of health care” by limiting the amount that lawyers receive from the system. Notice, however, that these pro-insurance right-wingers did not limit the type of attorney or fees charged by the attorneys that the insurance industry retains to defend these cases. According to these right wing conservative senators (John McCain, the “Maverick”, for instance) those attorneys can be retained for whatever the insurance companies are willing to pay. They can be the finest, most expensive attorneys around. Do you see the duplicity? Being unable to retain the finest attorney puts an already financially disadvantaged plaintiff at an extreme disadvantage; a non-lawyer or an undercompensated lawyer will be unable to compete with the cost and fees of the justice system with any reasonable hope of success. Going to court without a lawyer or with an undercompensated one would be like David fighting Goliath. I know, I know, David won, but what were the odds without help from above?
Somehow, the insurance industry and Chambers of Commerce have successfully depicted personal injury trial lawyers as “greedy” with intent to bring "frivolous lawsuits" against businesses, entities, and individuals who didn’t really do anything wrong. Industry hacks parade around suggesting that unusual cases and results are the norm for the justice system and complain that the system is out of control in favor of plaintiffs. This is another of their lies, since well over 90% of all cases brought are settled. If there is such junk out there, why are they settling the cases? Are they stupid? Are they afraid? No! It is good business to settle serious cases, just as it is good business to try to convince the general public (and poison potential jury pools) that the system favors plaintiffs and their attorneys and costs the taxpayers money.
Of course, the opposite is true; if the injured, disabled plaintiff does not get an appropriate recovery from the insurance company (private enterprise), he/she will be forced, due to his/her disability, to live on taxpayer funded public assistance or social security. And why, if cases are “frivolous”, does “tort reform” always take the form of damages caps on recovery. Why would a “frivolous” (worthless) case need a damages cap? Why would an attorney, handling cases on a contingency fee basis, take on a “frivolous” case in the first instance? The answer, of course, is that the reformers are not after the “frivolous” cases, at all. The are seeking to limit the rights of all of us, from receiving serious compensation for serious injuries, paid for by premiums that all of us have paid into the insurance system to protect ourselves from having serious physical harm result in serious financial harm. Insurance is the only product in the world that penalizes the public for using it exactly the way the industry intended us to use it!
To some degree, plaintiff lawyers have themselves to blame. Their reputations are somewhat impugned because they advertise and brag about their conquests. ‘We obtained this much for that client and that much for this one’, say the ads. However, advertising is a means by which person who has never needed or thought to need a lawyer can find a qualified one. Corporate/Insurance attorneys get plenty of repeat business from the industry; they have a steady book of business, companies who continually utilize their services and pay top-dollar fees. Injured people are usually newcomers to the legal arena; they are not repeat visitors to the legal system. Thus, advertising is one way a novice client is able to identify an attorney who is experienced in the system. We may find some ads distasteful and some attorneys cross the line of unprofessionalism (my opinion); overall, though, legal advertising (when done professionally) provides a service to the public.
Advertising, however, should not be used as the sole means of retaining an attorney. Obtain references; ask the attorney for the names and recommendations of previous clients that he/she has represented. Investigate the attorneys record with the State and local bar associations; see if the lawyer has ever been disciplined or suspended. Does the firm regularly try cases to conclusion or do they, too often, settle cases for less than full value?
We are all one serious injury accident away from being a plaintiff in the legal system. As such, we should want the system to be as fair to the individual as it is to the insurance industry. The industry has the time and money to compete; the industry practices “delay, deny confuse and refuse” and uses its might to create a feeling of fear and desperation to settle. Don’t be tricked into an early and inexpensive resolution. Listen to the advice of your attorney; don’t settle for pennies on the dollar.
In recent years, lawsuit funding companies have emerged as strategic partners in the fight for justice. A pro-justice lawsuit funding company will provide financial assistance to you and your family, pay your mortgage, car, rent or utility payments while you await case resolution. Like your attorney fee, the lawsuit funding company will await payment from your settlement or verdict and will excuse your obligation if your case is not successful. The lawsuit funding company is one more tool for a plaintiff in the fight for justice. Prepare for the fight of your life, because the forces of injustice will stop at nothing to defeat your fundamental right to fairness in the legal system.
Attorney, certified civil mediator, and award-winning author of the Zachary Blake Betrayal Series. Mark Bello is also a member of the State Bar of Michigan, a sustaining member of the Michigan Association for Justice, and a member of the American Association for Justice.