Wampum

Depleting My Inventory

As a lawyer, the only products I have to sell to my clients are my expertise in the law, my judgment as a counselor, and my skill as an advocate. My inventory consists of my time. Anything that wastes my work time reduces my efficiency and thereby my income.

A great deal of my inventory is consumed with interviewing prospective clients who have potential lawsuits. Many of those potential suits are simply too small to justify my involvement. Litigation is very effective method of arriving at the truth (at least compared to all other methods). The problem is that it is also a long, costly, burdensome, inefficient, and destructive method of dispute resolution.

I have a great deal of sympathy for people who have suffered a wrong but can not afford to seek a legal remedy. Often those cases involve damages that are small from the point of view of a lawyer or a legal system but which loom large in people’s lives. It is not cost effective for me to become involved in a suit in which the damages are fifteen or twenty thousand dollars, but, for many people, a $15,000 loss is devastating. I meet with those prospective clients, perform the initial research, provide copies of the relevant statutes and cases, provide a case evaluation, explain their options (including proceeding pro se in small claims court), answer their questions, perhaps provide a referral, and charge them nothing. That consumes some of my inventory of time, but I consider it just part of the overhead, like the electric bill.

I have no sympathy for people who have suffered a technical legal wrong, suffered no damages or only trivial damages, and think that they are entitled to a free spin of the litigation lottery wheel. I send those folks on their way with nothing after spending as little time with them as possible. More and more of my inventory of time is consumed with folks who think that some trivial wrong entitles them to a shot at the big bucks.

Those people have the notion that litigation offers an opportunity to reap large rewards without suffering large damages. They are wrong. An overwhelming percentage of those who receive large settlements and judgments have suffered greatly. I have known a number of people who received multi million dollar judgments and settlements in personal injury actions. In not a single instance would I willingly suffer their ordeal in exchange for their recovery. If you knew the details, neither would you.

Where do people get the idea that the recovery in civil cases is unrelated to the damages suffered? Mostly, they get it from tort reformers and the media.

Via Susie, I found this LA Times story:

Merv Grazinski set his Winnebago on cruise control, slid away from the wheel and went back to fix a cup of coffee.

You can guess what happened next: The rudderless, driverless Winnebago crashed. Grazinski blamed the manufacturer for not warning against such a maneuver in the owner's manual. He sued and won $1.75 million.

His jackpot would seem to erase any doubt that the legal system has lost its mind. Indeed, the Grazinski case has been cited often as evidence of the need to limit lawsuits and jury awards.

There's just one problem: The story is a complete fabrication.

It is one of the more comical tales in an anthology of legal urban legends that have circulated widely on the Internet, regaling millions with examples of cluelessness and greed being richly rewarded by the courts. These fables have also been widely disseminated by columnists and pundits who, in their haste to expose the gullibility of juries, did not verify the stories and were taken in themselves.

Although the origins of the tales are unknown, some observers, including George Washington University law professor Jonathan Turley, say their wide acceptance has helped to rally public opinion behind business-led campaigns to overhaul the civil justice system by restricting some types of lawsuits and capping damage awards.

"I am astonished how successful these urban legends have been in influencing policy," Turley said. "The people that created these stories did so with remarkable skill."

The tales are making the rounds at a time when business lobbyists and conservative politicians seem to have gained the upper hand in their drive to rein in lawsuits — a campaign that they call tort reform but that trial lawyers and consumer groups say is an assault on the legal rights of ordinary people.

Many alleged examples of the civil justice system arriving at ridiculous results are just made up. It is not enough for tort reformers to make up such stories, they also have to be spread by the media:

A database search shows the Grazinski, Carson and Walton tales have been cited as true by a wide range of media outlets, including CNN; U.S. News & World Report; the American Spectator; the Oakland Tribune; the Ft. Worth Star-Telegram; the Deseret News of Salt Lake City; the Akron Beacon-Journal; the Greensboro, N.C., News & Record; and the Augusta, Ga., Chronicle.

The media’s role in convincing people to waste my time with trivial matters is not limited to repeating false stories.

Kevin Drum points us to another story in the L.A. Times:

[M]any legal observers say there is no evidence that people are filing more lawsuits or that juries are getting more generous — indeed, there is some data to the contrary. And mammoth verdicts, in the rare cases in which they occur, almost always are tossed out or sharply reduced later.

Feeding the perception of a crisis in the legal system, they say, is the way the news media cover the courts.

After the big headlines, critics say, the media often drop the ball, losing interest in what happens later. Published studies of news content and a Times examination of major recent cases show that when the immense verdicts were overturned or dramatically reduced, the news frequently was banished to the inside pages or simply not reported.

Legal experts and media observers say such coverage gives a distorted picture of the civil justice system while lending credence to fears of irrational jury awards. News coverage has reinforced the message "that the system's out of control, and that juries are using the tort system to redistribute wealth in some unjust and unprincipled way," said Robert MacCoun, a professor of law and public policy at UC Berkeley.

The popular view that there are more lawsuits and bigger damage awards than ever before is not supported by available evidence.

A 35-state survey by the National Center for State Courts found that the number of tort filings declined 4% from 1993 through 2002 despite population growth. And in the nation's 75 largest counties, the median award to victorious plaintiffs was $37,000 in 2001 — much less than the inflation-adjusted median of $63,000 in 1992, according to the Bureau of Justice Statistics, a branch of the U.S. Department of Justice.

Tort reformers promote the idea that juries and the civil justice system are irrational. Often that point is made by simply making stuff up. The media, through carelessness or laziness, repeats the false stories. In addition, the nature of what Kevin calls the “publication bias” results in the public getting a distorted view of the justice system.

Part of the tort reformers' narrative is that greedy lawyers push clients into bringing marginal law suits. That may be true in some class action suits in which the lawyer is committed to a certain amount of work regardless of whether the class is large or small but in everyday individual suits, it is almost always the prospective client who is pushing the hardest for a suit to be brought.

The client has been told over and over by the tort reformers and the media that a jury may award him the riches of Croesus regardless of whether he has suffered significant damage and regardless of whether he has been wronged. It is not surprising that prospective clients are eager to collect.

If the tort reformers and the media provided a more accurate picture of the nature of the litigation system, fewer people would be so eager to sue. The tort reformers do not really care if people bring frivolous suits or potentially meritorious suits with small damages. The frivolous suits lose early and often. The trivial suits do not cost much. The tort reform lobby is quite willing to accept an increase in trivial suits if they can create a political climate that allows them to limit the exposure of businesses and insurance companies on the really bad cases. Perhaps the media should expose that game. It would not even have to make stuff up.

The happy result, of course, would be that so much of my time inventory would not be depleted by folks seeking something for nothing.

Posted by Dwight Meredith at August 17, 2005 11:49 AM