In the preceding essay in this series, I examined the economic motives of defense attorneys. In this essay, I discuss the economic motives of plaintiffs’ attorneys. Both defense attorneys and plaintiffs’ attorneys must operate their offices as a business, if they are to be successful. They are both motivated to earn a living practicing law. There the similarity ends. Defense lawyers serve corporate America and liability insurance companies, in large measure. They must practice law in a way that is pleasing to corporate America and insurance companies if they are to succeed.
On the contrary, Plaintiffs’ lawyers must attract the attention and approval of members of the general public who have a legal claim. Hence, the obnoxious advertising. Big bucks. Tigers. Prize fighters. Cowboys. Fighting for you! Before the 1960s, Bar Associations generally did not permit that kind of advertising. First the United States Supreme Court decided that fee schedules set by the Virginia Bar Association amounted to price-fixing, in violation of anti-trust laws. Then it decided that restrictions on advertising were a restraint on trade. Finally it concluded that the right of lawyers to advertise was imbedded in and protected by the First Amendment to the Constitution: commercial free speech. The pretextual invocation of the United States Constitution removed the matter from any degree of control by the courts and legislatures of individual States and of Congress. When one backs up and looks at the situation, none of that makes good sense, given the nature of law and the role of lawyers. Law is, among other things, an instrument of government. Lawyers serve a quasi-governmental function, and are often referred to as “officers of the court.” They collect and sell information and advice about how to interpret and apply law. Why shouldn’t such a practice that is dealing in regulation itself, be regulated? But that should be the topic of a whole book, and is suggested here only to give insight into the economic motives of plaintiffs’ lawyers.
By the way, defense lawyers don’t advertise much. You have probably not seen an ad placed by a defense firm. Defense firms don’t have to advertise! Plaintiff’s firms do it for them every law suit drummed up by Plaintiffs has to be defended. The defense bar was organized and practicing its methods of business recruitment long before lawyer advertising emerged. In fact, they at least had to give lip service in opposition to the advertising, on behalf of their clientele. Advertising is a plaintiffs’ lawyer thing. The basic problem is how to get the members of the general public who have a legitimate legal claim in touch with an attorney capable of adequately presenting it. Maybe advertising is better than ambulance chasing. There are no real good solutions. Corporate America and insurance companies are not running over themselves to pay adequate compensation for legitimate claims.
But the efforts to communicate with the public about the provision of adequate legal representation for claims puts the plaintiffs’ bar in the public eye, and makes them vulnerable politically. Something for nothing! Jackpot justice! Runaway verdicts. Political parties become involved. Republicans in Alabama are conservative; Democrats are liberal. Unfortunately, political motivations in Alabama continue to intertwine with race. In other essays, I systematically described the effect of racial demographics on the likely outcomes of litigation. Unfortunately, during the period ending about 2000, when Republicans took over the Alabama Supreme Court, Alabama was referred to as “tort hell,” and there was probably truth in some of the allegations of jackpot justice and runaway verdicts. Now the pendulum has swung almost completely in the opposite direction, and often it is difficult for badly injured people to get just compensation for their injuries.
A conservative legislature put caps on punitive damages. And the Business Council educated the public. Jurors in conservative counties became more conservative. Jurors in liberal counties are not less liberal, but a conservative appellate system holds the lid on the pot. But unfortunately, corporate America has not become more honest as a result of these conservative measures, and never will. The caps on that conservatives placed on punitive damages are a small fraction of the annual salary of corporate executives and high ranking insurance company officers, and the justice system provides little incentive for corporate honesty. Even punitive damages for active wrongdoing are “just part of the cost of doing business.”
Today, plaintiffs’ lawyers have to carefully consider whether they can afford to take on a case. They must find enough profitable cases to stay afloat. They must usually await the long delays of litigation, all the while taking the risk of no recovery at all. So they seek out the cases that can be filed in a favorable venue. In Alabama, that is often the Blackbelt counties, that are already economically deprived, and the atmosphere of litigation makes it more difficult to attract much needed business development.
I am not suggesting that the economic motives of plaintiffs’ attorneys are somehow purer than those of defense attorneys. As a judge, I saw firsthand the quest for jackpot justice. What I am suggesting is that economic motives of lawyers on both sides are real, and have a strong impact on the kinds and magnitude of problems that Courts will have an opportunity to resolve, whether the system will function efficiently, and whether they will produce a just society.
We desperately need a system that will deal with every case efficiently and bring a fair result. The attorneys on both sides need to realize that they are entrusted with the sacred fabric of the law, that it is their responsibility to guide cases through the system to just results. There should never be jackpot justice, something for nothing results; but at the same time, there must be a legal means to attack the most egregious conduct of illegal corporate practices. The temples of justice should not be “dens of robbers.” Lawyers on both sides should be adequately and fairly compensated for accomplishing just results.
I discuss the anomalous role of liability insurance in a separate essay.
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