What happened to lawyers?
Proposed changes for a deteriorated profession.
It’s time for real tort reform.
Not ill-advised “caps”—with fraudulent or exaggerated cases still making it into the court system while legitimate, egregious instances of wrongdoing become arbitrarily limited in the process, or the repeal of century-old protections for laborers to further line the pockets of real estate developers as construction jobs become only more perilous.
No, it’s time for nothing less than a sea-change in the policies that currently govern the practice of law.
I am a fiction writer, occasional journalist and a third-generation personal injury lawyer, one who is dismayed and disgusted at how a once-esteemed industry drifted from the lofty ideal of Atticus Finch to the squeamish mediocrity of 1-800-HURT.
Much of the general public is unaware that legal advertising has only been permitted since 1977, and how it has quickly degraded the profession’s stature in that time.
Like super-PACs in politics, the now-ubiquitous radio, television, billboard, mass transit and internet advertisements for attorneys that pollute our perceptions have become a regrettable-but-indispensable tool for many lawyers to recruit business, especially those practicing in personal injury (full disclosure: my law firm is one such reluctant employer of these tactics, as there is no other way to maintain prominence in the industry— but that is exactly what I’d like to see change, based on the reforms propsed herein).
Unfortunately, such solicitations inflate the public’s belief as to the appropriateness (and amount) of possible monetary recoveries (most gargantuan verdicts advertised to the masses are reduced or outright reversed on appeal— but this is only explained in the fine print). Large revenues set aside for advertising campaigns often lure prospective clients to unscrupulous attorneys, “factory firms” more concerned with bottom line and turnover than fair, ethical treatment of the people they serve or any competence in how they perform. Others blast their message to the public but merely serve a referral house, dishing out new matters to separate entities who actually perform the work, a portion of the legal fees kicked back to the firm spearheading the ad campaign through either a thinly-veiled “fee-sharing” agreement or other, more brazen quid-pro-quos. Last but not least, some marketing firms have completely commandeered the initial point of contact between attorneys and new intakes while explicitly stating they are not even licensed to practice law, the “client” dehumanized into but an asset as desperate attorneys are forced to pay in for access to new cases and new business.
The result, along with a several related regrettable quandaries (described more fully below) is a quarter-century descent of the legal industry into a more disturbing, less honorable enterprise. Proposed solutions are as follows:
1. Usurp the legal advertising machine.
In Bates v. Arizona (1977), the Supreme Court correctly anointed legal advertising as “commercial free speech.” But individual counties and municipalities can marshal their local bar associations, and particularly their legal referral services— free and already in-operation but little known— with a public awareness campaign. The City of New York (and other municipalities) already run(s) advertisements cautioning against cigarettes, teen parenthood, negative female body image and malevolent “job training,” “debt consolidation” and “loan modification” companies— Bar Associations can similarly advertise a cautionary approach about the lawyers directly advertising their services to the public, while instructing prospective clients to call their referral service instead— where all lawyers pay nothing to be on the list but are vetted as to their credentials and are required to carry malpractice insurance.
These warnings could perhaps even be superimposed upon lawyers’ advertisements, similar to the Surgeon General’s warnings on cigarettes. While this would be a tremendous detriment to ad vendors, especially electronic search engines, where astonishing sums are currently being spent, the benefit for the public at large is too great for the supposedly-benevolent, “don’t be evil” behemoths to ignore. Indeed, the F.T.C. has recently warned search engines to so label their ads as such, to avoid deception of the public. Further required warnings (as per attorney ethics rules) for lawyer advertisements could then redirect the public to non-profit (and neutral) referral services, where merit would triumph over marketing savvy when it comes to finding representation.
In contrast with reliable bar association directories, potential clients should also be warned / shepherded away from wholly misleading vanity publications that supposedly “rank” the “top lawyers” of the profession but are merely an attorney-referral-based (or “nomination” based) advertising boon, or supposed rating sites like Avvo, where disbarred lawyers with a litany of complaints are often listed as active, in good standing, and with a decent “rating,” to boot.
2. Allocate convenient contact information for this purpose.
311 is now a widely-known number for all non-emergency related inquiries. “611,” or some similar number, could be used for all legal inquiries to a local bar association, along with an easy-to-remember internet url (www.611.com, for example) and corresponding mobile applications. The public would then be ensured ease of access to a neutral source to connect them only to reputable attorneys.
3. Allow “referral fees” for lawyers - but of a strict 10%.
Another worrisome trend, separate from the advertising machine, are “referral sources” for cases. The law here has shifted and still depends on the jurisdiction—often lawyers can only share in profits for the “substantive legal work” they perform to assist with a case, while flat “referral fees” are wholly impermissible. In other jurisdictions, fee sharing agreements are allowed but must be explicitly disclosed to the client (though often, in practice, are not). The unacknowledged result can yield a secret referral fee without the client’s knowledge or a “window dressing” of a mere flat referral into supposed substantive work in order to justify fee-sharing with the referring attorney and keep business flowing. In all cases, the “referral source” can often push for a firm to take on less-than-meritorious cases, or pressure them to give up a substantial portion of their legal fees (at times up to forty to fifty percent, based on the volume of cases referred) to ward off the risk of jeopardizing the arrangement. Instead, referring lawyers should be allowed to receive a portion of legal fees based on the referral alone, but of a strict ten percent and nothing more, absent an application to the court and appearance before a judge with substantive proof of legal work performed that would justify a larger share.
4. Vigorously investigate “common sources” of referrals.
Once all true “referral sources” are on the books, those whose names appear with any frequency (referral fee-sharing arrangements are usually filed with an administrative office of the courts) should be vigorously investigated for claims of bribery, extortion, laundering, direct unsolicited engagement of injured victims, or other improprieties.
Non-lawyers should be scrutinized even more closely. These sources can demand even more blatantly illicit arrangements for providing clientele. Accordingly, law firms that appear prominently with a heavy frequency of blockbuster verdicts (as recorded in a Jury Verdict Report or other periodicals), should be periodically audited to ascertain the means by which cases are arriving at their door.
Some law firms are tacitly aware their referring sources employ underhanded tactics; others might be totally oblivious that such illicit efforts are made to eventually land cases in their domain. Under any scenario, it cannot be allowed and must be more routinely policed by the relevant disciplinary committees and law enforcement authorities.
5. Provide hospital staff, tow truckers, union leaders, and police officers a modest dividend each time they refer an injured victim to the bar association, to ward off bribery.
Hospital staff, tow truck drivers, union leaders, and even officers of the law are occasionally bribed by law firms, medical treatment providers, and/or their “runners” to refer cases to a particular firm, as these are the often the first contacts accident victims encounter. Instead, the bar association should be permitted to pay these players a small dividend — say, $50 — each time an injured victim mentions their name as the source of their awareness to call “611” (or whatever number is allocated) for legal assistance. Though seemingly minuscule, the dividends could add up over time and go a long way to thwarting the most unseemly attorney misconduct, providing otherwise uninvolved players a monetary incentive for rebuffing shameless attorney come-ons, and vice versa.
6. Form a cross-lawyer intake entry database.
Another pernicious permutation of non-meritorious cases involves the less-than-honest (LTH) client. The LTH goes to Lawyer 1, who says there’s no case because there isn’t any slippery substance or other defect that caused the client to fall. So LTH tells Lawyer 2 there was a slippery substance, but the case is still rejected, because there was no “notice” to the person or entity in charge. Lawyer 3 then sees the client, and ends up taking on what seems like dynamite case— a slippery substance causing the client to fall, with an independent witness— the LTH’s friend— complaining to those in charge some twenty minutes prior.
To be sure, some attorneys nudge a client along in this manner, in order to force the facts into the confines of an actionable case. But other prospective clients “learn as they go” through various consultations, the lawyer who eventually takes on the matter none the wiser.
How to ward off this madness? If each attorney who consulted with a client could enter the incidence of their consultation into a database— and be paid a small fee from the insurance companies to do so, who would maintain it— it could potentially drastically reduce embellished or fraudulent cases, bolstering reputable attorneys in the profession while diminishing those willing to pursue underhanded tactics to “make a case work.”
Of course, at issue would be attorney-client privilege and confidential communications in an intial consultation. However, the mere incidence of the client’s consultation with other prior attorneys could be disclosed lawyer-to-lawyer (or to the defense in discovery), but never the sum and substance of those conversations. This alone would greatly thwart fraudulent cases that manufacture themselves over time.
7. Let the state-regulated “attorney fund for client protection” issue advances on cases at reasonable rates.
Despite all the tort-reform hoopla of supposedly clogged courthouses, civil case filings have substantially decreased since the nineteen eighties, and a stunning majority of cases reach amicable resolution, with few “jackpot juries”— when verdicts do splash the headlines, despite the outsized figures appearing in advertisements, they are often reversed or cut-down on appeal.
Instead, what often drives otherwise-reasonable parties to trial are “cash advance” companies that prey upon injured accident victims, lending them money as their cases progress at at astronomical interest rates. By the time of a possible resolution, the plaintiff may owe so much money that they must obtain a gargantuan amount at a trial in order to satisfy the loan and still reap some kind of reward. Legislative and judicial attempts to curtail these usurious practices have been repeatedly rebuffed, as the funding companies technically “take the risk” that a case will not be successful, and therefore the “loan” is not truly a loan, per se.
But like legal advertising, we can outmaneuver this predicament. Most states have an “attorney fund for client protection” to which all licensed lawyers must contribute, for those instances where a client’s case has gone awry and the lawyer in error is without malpractice insurance, among other grievances. The revenues collected by this fund could be used to lend to clients looking (or lured) by such an advance— but at reasonable interest rates. The fund could then actually grow— could make money— while fending off yet another corrupting interloper in the lawsuit process.
8. Shift to “no-fault insurance” for most liability cases.
Too much of litigation still remains an all-or-nothing proposition— high-stakes posturing over many years of drawn-out proceedings, with never-ending hair-trigger pressure. Some states have had enough. In automobile accident law, at least, a number of states (including New York) have shifted to a “no-fault” insurance platform— up to $50,000 in medical bills, a portion of proven lost wages, and any documented out-of-pocket expenses are simply paid by the insurance companies involved, regardless of who is at fault— hence the term, “no-fault.” Pain and suffering, and costs incurred but not covered by the no-fault system, remain actionable on a fault basis, but only if a “serious injury” is involved, thus reserving the courts’ time and resources for the most severe accidents, while most people are simply provided basic compensation to help them get back on their feet.
The no-fault insurance system— and mandatory insurance coverage for all automobiles— should be immediately expanded to all fifty states. But beyond that, other causes of action should also shift to a no-fault system. Premises liability matters— slips, trips and falls— would benefit from injured victims automatically having their medical bills and lost wages paid, but only allowing a recovery for pain and suffering if actual or constructive notice of the condition can be proven. In medical malpractice, the cost of a corrective surgery, or of lost time from work, should be more routinely compensable, but a jury award should only applicable if (as it exists now) a specific departure from acceptable medical practice can be proven.
The result, like New York’s automobile accident law, will be to provide those injured with some moderate form of compensation— from which many will have received enough and not wish to pursue protracted litigation— while reserving the courts’ resources for the most contentious, high-value matters.
9. Instruct municipalities to staunchly fight small cases while coordinating a more expedited review on substantial ones.
Municipalities get sued over a range of matters: police brutality, defective public sidewalks, medical errors at city-run hospitals, negligent security and supervision at prisons and schools. They face a special dichotomy: make the litigation process easy, and they’re likely to see a flood of new lawsuits against them. At the same time, there is much wasted effort and resources (and substantial verdicts as a result) that are more the result of government hardheadedness— stubbornly resisting a fair look at compelling cases that scream for a proper payout, or an avoidance of any prudent evaluation altogether.
The solution is two-fold: staunchly fight potentially-embellished or fraudulent but (by their monetary value) “insignificant” cases, even if seemingly innocuous— to fight their cancerous growth— but streamline more legitimate, substantial matters to an early resolution. This bifurcated strategy could save taxpayer money two times over.
10. More early intervention and forward-thinking approaches in malpractice cases to truly lower costs.
The best resolutions are often expedited: like when I appeared before a Court-ordered medical-malpractice early-intervention unit, and the case settled for a reasonable-but-not-outrageous sum. The Plaintiff was contented by a settlement early on, rather than years of litigation, while the defense was pleased with a controlled process that limited their exposure. Sadly, this is an infrequent occurrence.
But beyond the evolution of the Courts, many health care providers can also engage in top-down safety reviews to drastically reduce the likelihood of lawsuits. Medical errors, when they occur, should not be swept under the rug, but discussed out in the open so as to prevent recurrence. Apologizing to potential plaintiffs for wrongdoing has also proven to drastically reduce the likelihood of a lawsuit or the amount demanded. Municipalities can also inquire as to which personnel (within their police force and other departments) are causing their lawsuits to occur, and clamp down, to fight the rising tide of claims against them.
Clearly, many medical providers and other insured Defendants are reluctant to enact these measures, fearful it will only highlight their exposure. Therefore, these initiatives should be incorporated into “apology laws” or other comprehensive early court intervention systems, so as to not inure solely to Plaintiffs, their revelation instead coordinated into an overarching settlement process.
There was a time when legal advertisements were as rare as promotions for physicians— and legal counsel was held in almost nearly as high esteem. For most of the general public, the reason for the decay in reputation of counselors at law is unclear, merely summoning a vague, quizzical musing as to when a formerly elite squadron of mild mannered, smoothly-functioning professionals transitioned into a parade of goofy boasters with accompanying mustaches and gauche cowboy hats.
But the answer is clear, endlessly invading our airwaves, lines of sight, and electronic search engine results. With these proposed reforms, however, those committed to excellence in the profession, the stalwarts devoted to the notion of “great lawyers,” service to the public, and the practice of law as a time-honored, finely-honed craft— not simply the most savvy marketers or deceitful deal-makers— will win the day, benefit the public at large, and return a tarnished profession to its mantle of prestige.