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The Truth About Trial Lawyers

Posted by Mark · July 11th, 2004 · 4 Comments

Now that John Edwards has emerged as the Democratic Vice Presidential candidate, the Republican attack machine, aided by a lap-dog mainstream media, is on the offensive. The myths and lies they spread do not need to be repeated here. Instead, I will examine some of the truths about trial lawyers, truths that most Republicans and some other ignorant persons will, no doubt, find to be terrible and disgusting.

Truth 1: Trial lawyers aren’t the source of the occasional large awards you read about in the papers. Juries are. Juries made up of ordinary men and women like you and me. Appellate Justices sometimes reduce the awards juries grant. But keep in mind, the awards are made by juries, not by trial attorneys.

Truth 2: Medical malpractice claims are very difficult to win. Before you can get a medical malpractice suit to a courtroom, you must first find a doctor who is both qualified and willing to testify against another doctor. This by itself is no small feat. After that, the plaintiff has the burden of proving not one, but two things. First, the jury must be convinced that the doctor was negligent. Second, the jury must be convinced that the doctor’s negligence was the actual and legal cause of the harm to the patient. That doesn’t sound easy, and it’s not. One friend of mine who is a trial lawyer estimates that 80% of medical malpractice trials end in a verdict for the defense. That means the doctor, hospital, or other entity being sued.

Truth 3: Attorneys who do take on medical malpractice claims put a significant amount of their own money at risk. One trial lawyer friend of mine recently lost a medical malpractice suit. He had invested more than $30,000 of his own money in out-of-pocket expenses for such things as depositions and expert witnesses (his client was too poor to front the money). That cash is now gone — down the drain. This doesn?t count the hundreds of hours of his time that he put into the case — time that otherwise could have been put toward profitable cases, time that he is not paid for, time that is forever gone. (Think about these losses the next time you hear someone complain about how much attorneys charge.)

Truth 4: Several states rig the rules ahead of time in favor of defendants — again, that’s the doctor, hospital, or other entity being sued — in medical malpractice cases. In California, for instance, non-economic awards (which include pain and suffering and punitive awards, which are intended to punish those who misbehave), are limited to $250,000. What’s more, fees plaintiffs’ attorneys are allowed to charge in California are set by law at a rate lower than what plaintiffs’ attorneys normally charge. These types of laws are designed to have a chilling effect on cases being filed, and they work. Any cursory web search will reveal to you that the dollars insurance companies are paying out for medical malpractice claims are falling. It would make sense, then, that the premiums insurance companies charge medical professionals would also decrease, right? Guess again.

Truth 5: As reported in this “New Republic” article by Jonathan Cohn, insurance companies admit that less than half of the money they take in from premiums goes to pay awards. More than half is used on overhead and profit. Insurance companies take premiums and invest them. Because the economy is in the tank and the returns on their investments are down, they make up the difference by charging doctors even more. These guys have a license to print money. They charge doctors outrageous premiums while blaming it on the trial attorneys, attorneys who are taking fewer medical malpractice claims to court and who are receiving smaller awards on the cases they do win.

Those who own insurance companies live high on the hog. I know from personal experience, because 20 years ago I worked for a chain of television stations that was owned by an insurance company. Private jets, marble floors, crystal chandeliers, three-hour lunches at the country club — these are the trappings of those at the top of insurance companies. I have seen it with my own eyes. I have no problem with someone living this way if they make their money honestly. Raising premiums while their costs are falling and blaming the mess on trial attorneys is not honest in my book. It’s lying. It’s cheating. And it saddens me that many Americans see no problem with people behaving this way, as long as they are white and members of the right political party.

John Edwards published a book, “Four Trials,” that is not political in nature. It simply describes four of his most memorable trials. It’s a good read for any attorney, and for anyone who enjoys stories about someone coming to the aid of the little guy who has been victimized by the wealthy and powerful. The first story in the book tells of a man who was permanently and severely disabled because a doctor prescribed far too much of a particular drug. Other attorneys were shying away from the case, which Edwards eventually took on. In a pre-trial conference, the judge predicted to Edwards that conservative juries in that part of North Carolina never awarded more than $100,000, and that he should persuade his client to take whatever pittance the defense offered as settlement. Edwards’ client made the decision to go ahead with the suit. The conservative jury, not Edwards, awarded the victim $3.7 million.

Another story in the book tells of a five-year-old girl who will need special medical care for the rest of her life because a defective pool drain held her to the bottom of a wading pool and sucked her intestines out of her rectum. The company that manufactured the drain knew it was defective, and knew that other children had been harmed by the drains. But they did nothing to correct the defect. How would you feel if your five-year-old had her intestines sucked out? The jury, not Edwards, awarded the little girl $25 million in compensatory damages alone. The manufacturer agreed to pay that amount and not appeal if the girl’s family would not pursue punitive damages.

Before the year is out, Edwards will likely face off against Dick Cheney in a debate. Cheney, the man who has used his power as Vice President to make certain that billions of dollars in no-bid government contracts go to a company that still pays him annual compensation and in which he still owns stock options (Halliburton) will try to say that Edwards is somehow immoral because he is willing to risk his time and his money to fight for those who have been harmed by the negligence of others. Edwards has been quoted as saying that his “mouth waters” when he thinks of this coming debate.

I concur.

Categories: Law and Legal Issues


4 responses so far ↓

  • 1 Rick // Jul 11, 2004 at 10:59 am

    Mark, I was glad to see this article. As I watched the news the other day and heard the attacks on Edwards — especially those people who, as they called him “an attorney,” used a tone of voice that implied they’d just said the most disgusting of words, I was nearly driven to write a blog article.

    It’s amazing to think of the distaste people express for lawyers. We’ve forgotten that if it were not for lawyers, there would be no United States of America.

    Lawyers like Patrick Henry, were active and willing participants in virtual every aspect of the Founding of America. Like lawyers today, he fought for those who needed his help — in his case, as with the other early American lawyers, developing the legal systems that created United States of America.

    Without lawyers, there would be no Constitution of the United States. Thomas Jefferson, who has been called “the greatest lawyer on both sides of the Atlantic,” crafted the legal documents that created the United States of America.

    Many of the nations earliest Presidents and political leaders were lawyers: John Adams was a Harvard-educated lawyer. His son, John Quincy Adams, was a lawyer. James Monroe, Andrew Jackson, Martin van Buren were all lawyers. This list goes on. Those Presidents who weren’t lawyers, like James Madison, studied history, government and were “well-read” in the law. (You can read short biographies on all the Presidents on this page at the White House website.

    These Presidents weren’t the only Founders who were lawyers. Alexander Hamilton was one of the leading lawyers of the country. John Lansing, Jr., a New York delegate to the Constitutional Convention and later a Chief Justice of the New York Supreme Court, was a lawyer. Robert Yates, another delegate to the Constitutional Convention who became a Chief Justice of the New York Supreme Court, was a lawyer. David Brearly, delegate to the Constitutional Convention from New Jersey and later a federal district judge (and who later, as a delegate to the Episcopal General Conference of 1786, helped write the Episcopal Church prayer book), was a lawyer. Jonathan Dayton, another delegate to the Constitutional Convention, was a lawyer. Dayton, Ohio is named after him. William Livingston, William Paterson, Oliver Ellsworth, William Samuel Johnson, Roger Sherman, Richard Bassett, Gunning Bedford, Jr….the list of lawyers at the Constitutional Convention goes on and on.

    Lawyers! Founders of the United States! Authors and supporters of the legal documents that made our nation possible and prosperous! It’s no wonder that one of Shakespeare’s famously-misunderstood lines has despotic men saying, “First thing we do, let’s kill all the lawyers.” Supreme Court Justice Stevens said, in a footnote to his dissent in Walters v. National Association of Radiation Survivors, “As a careful reading of that text will reveal, Shakespeare insightfully realized that disposing of lawyers is a step in the direction of a totalitarian form of government.”

    Perhaps some modern lawyers have earned this distaste. Just as there are “bad” people in all walks of life (corporate CEOs?), so, too, with lawyers. But, to a large extent, as your article points out, this is a matter of “shooting the messenger.” Attorneys represent people who hire them. Other people — non-lawyers! — make the decisions. To the best of their ability, lawyers fight for the rights of people who are incapable of fighting for themselves. This is true even of attorneys who defend corporations; not just those who defend individual people who have been wrongfully accused of crimes or had their lives destroyed and need help to be compensated by those who have hurt them. (Wouldn’t it be something if the company that built the wading-pool pump that sucked out five-year-old Valerie Lakey’s intestines had paid her without needing to be sued?)

    In the end, attorneys are hired by people who want something done in the legal arena and they do what their clients ask. Not a few times, the things attorneys are asked to do are done against the attorney’s advice. But attorneys are bound, within the limits of the law, to do what their clients ask. (And, incidentally, once an attorney accepts a client — at least in criminal defense, I can say this; I don’t know as much about other areas of law — they can’t easily quit. Sometimes, they aren’t allowed to quit at all.)

    In the end, though, the thing that bothered me the most the other night as I watched was this: Why is it okay to make millions of dollars from oil? Why is it okay to make millions of dollars from running savings and loan companies into the ground? Why is it okay to make millions when the real work is performed by others (we call them “employees”)? But, at the same time, a lawyer — many of whom do the work themselves and whose work is defending people who can’t defend themselves — is thought poorly of when he, like Edwards, earns millions while actually working to protect people?

  • 2 Mark // Jul 11, 2004 at 2:25 pm


    The reason so many Republicans (not all, but many) think trial lawyers are bad is that trial lawyers participate in a process that takes from the very wealthy and gives to the disadvantaged. As our nation’s current tax scheme demonstrates, most Republicans firmly believe that the exact opposite should be happening.

  • 3 Roger Poe // Jul 31, 2004 at 9:15 am

    11:15 AM CST

    I thought a bit more recent insight on insurers claim settlement conduct would be interesting and helpful to ones here in seeing how premiums collected can be illegally kept so as favorably “cook the books” of insurers P&L statements…and steal from their beloved customers.

    Hurricane Isabel generated 458,000 homeowner-policyholder claims. 25,000 of which were NFIP (National Flood Insurance Program)claims. 24,000 were needing to be reopened for review. Of approximately 1,800 reviewed so far, 41% were underpaid by (on average) $8,200.00.


    It’s wondered if Allstate Insurance Company handled their Hurricane Isabel claims in the same manner they are comfortable with in Texas?…

    The following partial conversation was taken from http://www.catadjuster.org in their [hurricane] “Isabel”, is a Hot Potato headed behind? topic—the page “8” the following content was on has somehow disappeared from their site as of 7-2004 with the site owner stating the page contents can be replaced…


    —Thanks for your reply Gale.

    For the record, I’ve worked with bright, high quality and down to earth staff and independent adjusters. Also, none of my observations are meant to bash anyone. And “a” claim or a hand full of claims is not at stake here. Many, many claims are at stake.

    The job that daily and catastrophe adjusters have to do is a uniquely complex one. The ability for the high quality adjuster to maintain their focus, which is to help insured ones while following (sound) carrier instructions, and make a living, is a commendable and challenging calling to follow, and I hope that all of the good people that are in the adjusting field remain commited to that calling and all that it entails. I do not share the same sentiments for others that follow carrier instructions so as to be able maintain their own standard of living, to the detriment of their neighbors reputations and welfare.

    I suggest that CEO’s are quite aware of what it takes, from the trenches on up, to cover their company’s operating costs and satisfy stockholders who have gotten use to certain returns on their investments. Hard markets call for hard CEO type decisions, and the glossing over of those decisions.


    If you will, carefully follow the nine page Allstate letter to completion, especially keeping in mind the blue lead information at the top of pages 1-8 (and especially page 5)…then reflect on the following neighborly and commendable admonition from khromas to Todd Brooks on CADO 12/18/2003;

    (The khromas reply was addressing Brooks receiving his new adjusting license, and Brooks considering employment with Allstate).


    “I would not advise calling Allstate if you wish to keep your integrity intact.

    After almost 7 years with them and having held a variety of positions, including the sole Quality Evaluator for the entire southern half of Texas, I finally became fed up with their approach to requiring every adjuster to knowingly underpay every claim and left them this past July.

    The head of Allstate in Texas – Gary Briggs – had the nerve to stand up in front of an agent’s meeting last spring and say (QUOTE) “I love the new HOA+ policy! It doesn’t cover anything and WE STILL GET TO KEEP THEIR MONEY”!

    I used to tell people whose claim I was handling that “the good hands of Allstate were right here” as I held out my hands for them. I could no longer do that in good faith and look myself in the mirror so I left.

    One of these days the Texas DOI is going to catch up with their property handling practices and then it will all hit the fan! Good luck with anyone else!”

    Kevin Hromas (Houston Texas)

    Gale, the reasons behind Gary Briggs exclamation and part of Allstates profitability margins may very well be connected and may support “why” (so-to-speak) Mr. Poe submitted 5 Allstate claims in 2003 to the TDI (Texas Department of Insurance) and why they are now in the TDI’s legal department (as of 8-2004). It will also be interesting to see how Allstate (and other carriers) conducted themselves while settling Hurricane Isabel and California fire claims.

    At least Kevin, unlike some other Allstate adjusters-associates, had the level of personal integrity needed to not want to harm consumers-people for profit…and so made his livelyhood elsewhere.


  • 4 Rich // Oct 19, 2004 at 7:03 am

    I think what you are doing is a good thing to get a message out. Not all lawsuits are bad and some of these settements are justified but you only are focusing on a very small number of these cases. Obviously the ones you want to be seen…

    The problem is with trial laywers going sue happy in America. They are suing companies for the most rediculous reasons. A lady gets millions because she is clumsy and spills coffee on herself? Give me a break. Suing companies for making kids fat? How about suing parents for letting their kids get fat? Look at the real problem in that one. I agree the cigarette companies flat out lied to people and got what they deserved.

    With medical costs, it is a multitude of things: lawsuits, the lack of care people take of themselves, the diseases that we are treating now and never before, the number of times people go to the doctor without merit. All of these things get passed down to the consumer. It is simple economics. Supplier gets charged more, consumer gets charged more.

    And your comment about Cheney makes me laugh. First of all, Edwards got leveled in the debate. Secondly, do poeple know that Mr. Clinton also awarded Halliburton a no-bid contract in Yugoslavia????? That is funny, I didn’t see that in your “research.”

    But the worlds problems are this administrations fault right???

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