Tis’ the season for politics. Right wing politicians are running around various parts of the country spouting their usual ‘trial lawyer poison’. ‘Trial lawyers are responsible for the country’s ills’, don’t you know? All around the country, they are filing "frivolous lawsuits" and costing the economy millions, aren’t they?
Query: Why would an attorney, on a contingency fee contract (no recovery, no fee) who is trying to feed his family and satisfy employees file a case that is "worthless"? How does he get paid for doing this?
Query: What judge would allow a worthless, "frivolous", case to clog his docket? He would dismiss such a case, right?
Query: Why would right wing, ‘smaller government’, ‘get government out of our lives’ proponents be proposing that the legilslative branch is better suited to govern what goes on in the courtroom than the lawyers and judges who work in the system, every day?
The answer is because the right wing politicians are getting money and marching orders from the insurance, tobacco, and pharmaceutical industries, all of whom would benefit, by billions of dollars, if your state or federal elected official is successful in passing "tort reform", also known as the restriction on access to court or right to sue.
The main purpose served by an unrestricted tort or civil justice system is not "justice"; "justice" is a relative term. The system most often produces "compromise", not "justice", anyway. It produces unfairness as well as fairness. And, the more political the civil justice system becomes (thanks to the insurance, tobacco, pharmaceutical and US Chamber of Commerce lobbyists), the more unfair or imbalanced it will be. There is, after all, a huge economic imbalance between plaintiffs and defendants already; ecomonic power is heavily slanted in favor of the defense. Litigation is, clearly, a "David vs Golitath" endeavor. In fact, my industry, the lawsuit funding industry, was born out of the tremendous desparity in economic power. Litigation funding seeks to reduce that economic disparity by assisting plaintiffs, financially, during the course of their litigation.
However, more and more states have passed some sort of tort reform or restrictions on court access or damage recovery, even though the underlying premise for these reforms is based on a lie. Most tort reform around the country provides unreasonable damage caps or limitations on recovery. So, here are two last questions for you:
Why would a case that is frivolous, requiring "tort reform", need a cap on the size or amount of damages recovered?
If a case is "frivolous", i.e. "worthless" wouldn’t the recovery, almost always, be "zero"?
If insurance companies and the big business lobbyists have their way, there would be no lawsuits. If there was no threat of a lawsuit in this country, where would we be as a country? And that is why I invite you, today, to go to your yellow pages or internet directory, find a trial lawyer, trial attorney, personal injury lawyer, personal injury attorney; call that attorney’s office and thank him/her for making you and your fellow citizens more safe. Many Americans don’t realize why:
- we have safer schools and workplaces
- there are seatbelt standards and airbags in automobiles and other safety examples throughout your vehicle
- toys are safer for children
- lead is no longer in paint
- asbestos is no longer used in construction materials
- BP is cleaning up the Gulf
- Highways and Bridges are constantly being repaired and upgraded
- Dangerous drugs have been removed from the marketplace
- Airline and Airplane safety has been drastically improved
- the environment is cleaner; air and water quality has improved
The vast majority of the time, it is because someone was seriously injured, made ill, or killed in any of the above circumstances. It is because a "David" trial lawyer, using his uncompensated time and his own money, challenged the corporate defendant to a court duel, beat them in court, made them pay, and made them take a dangerous product off the market or remove the elements that make it dangerous. Trial lawyers, within an unrestricted civil justice system, made it happen, they obtained justice for their clients and, in the process, made all of us a little safer. Unfortunately, "making us safer" came at the expense of innocent lives; at the expense of people who suffered physically, emotionally, and financially.
Examples of litigation changing the way businesses operate have been in the news for years. Trial attorneys dedicate their lives trying to not only make sure justice is served, but, also, to bring about change for the better. While challenged by defendants, much more powerful then themselves, these corporate interests are less so in a court of law and plaintiffs and contingent retained attorneys persevere to correct a wrong. With the help of a judge and/or a jury, these "Davids" fight the big businesses "Goliaths" for the safety of us all.
And what does the public do in response? Well, since the majority of people have not been seriously injured, have never been involved in the civil justice system, have heard about strange sounding cases and "jackpot justice", they buy into the lies and rhetoric being peddled by big business and big insurance. They believe that injuries and death happen to others, so they laugh at this case or that one; they tell "lawyer jokes". Some of them are even funny.
But, we, each and every one of us, are just one "never event" from being a quadreplgic or six feet under, ourselves. And if the civil justice system does not make the person or company that is responsible for our injury, disability or death pay, then the taxpayer must foot the bill. Why would the right wing support that? I thought they were for smaller government, less taxes, and private and personal responsibility. What’s that, you say? Oh, silly me. These right wing, smaller government, personal responsibility politicians forgot that there are execptions to their rules of smaller government and personal responsibility. They are not meant to apply to:
Big tobacco, which has drastically driven up the cost of health care;
Big pharma, which lobbies the FDA to approve dangerous life threatening drugs for profit, then lobbies for immunity from liability;
Big insurance, which happily takes our premium dollars but laughs in the faces of the seriously injured, permanently disabled, survivors of those killed in accidents or by dangerous drugs or products, and property damage-storm victims when they have the audacity to ask for the money back in benefits.
So, who protects us? Who brings about these safety changes? Who fights for the little guy, spends his own hard earned money on the case, and charges the client nothing unless he/she is successful? The trial lawyer is the voice of the individual, the voice of the common citizen, the voice of those who have been injured maimed or killed, through no fault of their own. If that voice is effectively silenced, there will be no change; there will be no safety; there will be no justice.
And so, dear reader: Pick up the phone. Call, and thank a trial lawyer for championing the cause of individual safety in America. Within the constant storm of lawyer-bashing, I am certain that the lawyer will welcome the calm seas of your simple appreciation for a job well done.
Attorney, certified civil mediator, and award-winning author of the Zachary Blake Betrayal Series—Mark Bello is also the CEO of Lawsuit Financial and the country’s leading expert in providing non-recourse lawsuit funding to plaintiffs involved in pending litigation. He 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.