There is a great deal of focus placed on the "over-supply of lawyers" part of the legal employment equation. However, there is not much discussion about the "demand for lawyers" side of the equation. Even then, most of that discussion revolves around corporations cutting back on Big Law services as opposed to the collapse in demand for individual legal services or the effect so-called "tort reform" has had on the practice of law.
On the recent NPR Diane Rehm Show featuring Steven Harper, there were a number of really great comments. This one caught my eye, quite apart from the user name. Here is the comment in question:
On the recent NPR Diane Rehm Show featuring Steven Harper, there were a number of really great comments. This one caught my eye, quite apart from the user name. Here is the comment in question:
Blueneck BillyBob wrote:
TORT reform has had many negative consequences. The victims never see the judgements, to which they are due. Attorneys aren`t receiving their just due either. Taxpayers are on the hook to pay the bills for the injured.
Now in Ohio they plan to make attorney fees taxable, as well as the judgements...This will deny justice to those who need it most.. Ordinary human being type citizens have had few if any victories on our high courts, these days. The Conservatives always find for the offender, and never for victims, increasing the burden onto the government.
Prospective law students (and for that matter the public at large prior to something happening to them) do not fully understand the impact "tort reform" (judicial or otherwise) has had on the legal profession.
Let's talk about Michigan, the home of Cooley Law School, for a moment. The Michigan Supreme Court was "taken over" by a majority of conservative "texturalist" justices (the so-called "Engler 4") a little over a decade ago. As a result, there was a sea change in Michigan tort law which took place under the guise of Conservative texturalism. Entire areas of practice literally disappeared overnight in Michigan as opinion after opinion was released. This was not simple fine tuning based on a specific set of facts before the court. Statutes designed to specifically compensate injury victims were retroactively reinterpreted in such a manner that the entire practice area disappeared; the common law was turned on its head to eliminate other long-standing practice areas. See, for example, Robinson v. Detroit, 462 Mich 439; 613 NW2d 307 (2000)(police chase liability); Nawrocki v Macomb County Road Comm., 463 Mich 143, 156; 615 NW2d 702 (2000)(road liability); Lugo v. Ameritech Corp, Inc., 464 Mich 512, 517; 629 NW2d 384 (2001)(premises liability); Kreiner v Fischer, 471 Mich 109 (2004)(no-fault liability); etc. See also medical malpractice reform and complete immunity for drug manufacturers.
So-called "tort reform" was the political culmination of years of "trial lawyer" bashing in political stump speeches and on Sunday morning talk-show appearances. It resulted in the appointment of judges friendly to corporations and insurance companies. For example, Michigan Chief Justice Robert P. Young Jr. served as general counsel of AAA before being appointed to the bench. See also a recent New York Times article "Pro-Business Decisions are Defining This Supreme Court," by Adam Liptak (New York Times).
As a matter of fact, the situation in Michigan is so ugly right now that the retired Chief Justice of the Michigan Supreme Court, Elizabeth A. Weaver (a moderate Republican incidentally but not member of the Engler 4), has a nearly 750-page tell-all book coming out called Judicial Deceit. According to newspaper reports on the book, she is alleging misconduct on the part of the Engler 4 justices. She claims there were instances where the Engler 4 had their opinions written before oral argument and others where they were trying to trade votes via written memos when the court became more evenly divided. She was censured for secretly recording internal discussions of the court and releasing a transcript during election season. See "Michigan Supreme Court censures ex-Justice Elizabeth Weaver for secret recordings," (Associated Press published in MLive, November 22, 2010.)
The reason for the vitriol related to the Michigan Supreme Court is because millions and millions of dollars are at stake. The financial services and insurance industry are highly motivated to keep justices on the court who have a history of interpreting laws in such a manner that otherwise compensable causes of action do not exist. After tort reform, not only did hundreds of millions of dollars not move from the insurance and financial services industry to compensate injury victims, but that money also was removed from the legal services industry. The legal services industry was the big loser in "tort reform." Not only were hundreds of Michigan plaintiffs' lawyers put out of business, but their counter-part defense lawyers were also put out of business. In Michigan, both sides of the tort bar went from full file cabinets to empty file cabinets virtually overnight. Those lawyers then started scrambling to make a living in other areas thereby diluting other attorneys' practices. Pretty soon everyone was scrambling to make a living practicing law. Even if an attorney did not practice in the area of tort law, his or her practice was impacted by tort reform. The bottom line is that it is just not injury victims who suffered as a result of tort reform; the advocates who trained to work in this area also suffered and that impact then spread throughout the entire legal community.
The Michigan bar, and to a lesser extent other States, has seen a perfect storm. Tort reform eliminated many areas of practice. This, combined with the collapse of the auto industry, the loss of middle class wages and the exodus of young families from the State in search of jobs, created a huge drop off in demand for legal services. At the same time, there was a surge in the number of lawyers produced in the State with the establishment and expansion of Cooley Law School. Cooley has grown from its first campus in Lansing, Michigan, to establish satellite campuses in Ann Arbor, Auburn Hills and Grand Rapids, Michigan. Now it is apparently expanding once again with the proposed agreement with Western Michigan University. This is not an attack on the comparative overall quality of legal education at Cooley Law School; the criticism is that the Michigan legal market cannot bear the over supply of lawyers being produced. One recent article showed there are almost 7,000 law students in Michigan with half that number coming from Cooley Law School alone.
Let's talk about Michigan, the home of Cooley Law School, for a moment. The Michigan Supreme Court was "taken over" by a majority of conservative "texturalist" justices (the so-called "Engler 4") a little over a decade ago. As a result, there was a sea change in Michigan tort law which took place under the guise of Conservative texturalism. Entire areas of practice literally disappeared overnight in Michigan as opinion after opinion was released. This was not simple fine tuning based on a specific set of facts before the court. Statutes designed to specifically compensate injury victims were retroactively reinterpreted in such a manner that the entire practice area disappeared; the common law was turned on its head to eliminate other long-standing practice areas. See, for example, Robinson v. Detroit, 462 Mich 439; 613 NW2d 307 (2000)(police chase liability); Nawrocki v Macomb County Road Comm., 463 Mich 143, 156; 615 NW2d 702 (2000)(road liability); Lugo v. Ameritech Corp, Inc., 464 Mich 512, 517; 629 NW2d 384 (2001)(premises liability); Kreiner v Fischer, 471 Mich 109 (2004)(no-fault liability); etc. See also medical malpractice reform and complete immunity for drug manufacturers.
So-called "tort reform" was the political culmination of years of "trial lawyer" bashing in political stump speeches and on Sunday morning talk-show appearances. It resulted in the appointment of judges friendly to corporations and insurance companies. For example, Michigan Chief Justice Robert P. Young Jr. served as general counsel of AAA before being appointed to the bench. See also a recent New York Times article "Pro-Business Decisions are Defining This Supreme Court," by Adam Liptak (New York Times).
The reason for the vitriol related to the Michigan Supreme Court is because millions and millions of dollars are at stake. The financial services and insurance industry are highly motivated to keep justices on the court who have a history of interpreting laws in such a manner that otherwise compensable causes of action do not exist. After tort reform, not only did hundreds of millions of dollars not move from the insurance and financial services industry to compensate injury victims, but that money also was removed from the legal services industry. The legal services industry was the big loser in "tort reform." Not only were hundreds of Michigan plaintiffs' lawyers put out of business, but their counter-part defense lawyers were also put out of business. In Michigan, both sides of the tort bar went from full file cabinets to empty file cabinets virtually overnight. Those lawyers then started scrambling to make a living in other areas thereby diluting other attorneys' practices. Pretty soon everyone was scrambling to make a living practicing law. Even if an attorney did not practice in the area of tort law, his or her practice was impacted by tort reform. The bottom line is that it is just not injury victims who suffered as a result of tort reform; the advocates who trained to work in this area also suffered and that impact then spread throughout the entire legal community.
The Michigan bar, and to a lesser extent other States, has seen a perfect storm. Tort reform eliminated many areas of practice. This, combined with the collapse of the auto industry, the loss of middle class wages and the exodus of young families from the State in search of jobs, created a huge drop off in demand for legal services. At the same time, there was a surge in the number of lawyers produced in the State with the establishment and expansion of Cooley Law School. Cooley has grown from its first campus in Lansing, Michigan, to establish satellite campuses in Ann Arbor, Auburn Hills and Grand Rapids, Michigan. Now it is apparently expanding once again with the proposed agreement with Western Michigan University. This is not an attack on the comparative overall quality of legal education at Cooley Law School; the criticism is that the Michigan legal market cannot bear the over supply of lawyers being produced. One recent article showed there are almost 7,000 law students in Michigan with half that number coming from Cooley Law School alone.
The point here is not to advocate one way or another on the political line-drawing associated with tort law. The reality is that the lines have shifted significantly over the past few years. The elimination of tort claims has also significantly reduced legal service industry jobs. This point is being lost in the overall debate.
It's a point I made when I used to practice. I especially like to rub it in the face of Rethuglicans who voted for these bozos and are now whining about getting peanuts in damages.
ReplyDeleteThe politicians in black robes, referred to as "judges," are mere bagmen for industry. Their main role is to protect the moneyed interests.
ReplyDeleteNationwide tort reform is another reason why the lawyer job market is such a pathetic mess. In the past, PI gave TTT grads the hope of winning decent jury verdicts.
As L4L pointed out a few times on his classic blog "Big Debt, Small Law," insurance defense mills will now fight you over a $10,000 injury claim. In prior times, insurance company pigs would typically not challenge small auto claims. Now, they will engage in a vicious dog fight - in order to make PI lawyers expend some of their resources.
The tide has changed, and all three political branches of government are now FIRMLY in the pockets of the corporate swine and wealthy. If you don't recognize that the judiciary is a political branch, then you are a lost cause/waterhead who should stick to coloring books and Legos. As anyone with a brain stem knows, appellate pig "judges" know how they will rule on a case before they have all the facts. For $ome rea$on, it coincides with their political leanings and beliefs. Imagine that.
It is all a big game.
"Insurance defense mills will now fight you over a $10,000 injury claim."
DeleteYeah, how shocking that getting money just for showing up would appeal to someone like you.
If you hate "corporate swine and the wealthy" that much, you should pull up stakes and move to North Korea. You are far too pure to live in this immoral and bankrupt den of thieves for even ONE MORE DAY. Fly away, sweet prince of poo!
And LOL at your "quick $200" bounty. I guess we can all see how much your family's honor is worth to you.
So true. The insurance industry makes every file as economically disadvantageous as possible to discourage plaintiff's attorneys from even taking the cases to begin with. It looks at the larger picture of keeping PI attorneys starving instead of the merits or economics of the case at hand.
DeleteTo the piece of trash who posted at 6:47 am,
DeleteYou have no integrity, no honor and no balls. Your mother must be very proud to have raised a eunuch.
The fact remains that insurance companies got stringent, and the PI and insurance defense attorneys are being squeezed. This has caused debt-strapped attorneys to be further screwed over a coffee table. Tort reform has largely taken away a shot for TTT grads to pull down big settlements, as litigators. Stick to coloring books and Legos, mental midget.
Also, "Skadden Farts" was and still is in the trenches of toilet law. He and countless others are stuck representing the lowest common denominator of humanity. These are the people who cannot be called before 10 am, or they will lose it on you. But they don't mind calling you at 2 am, when they are drunk or in jail.
DeleteFurthermore, these clients will constantly lie to you - on the most basic matters, i.e. "I'm not on probation." You then pull up their criminal history on the local court website, and you can see that the person is on probation.
When you ask if they were pulled over by the cop, they will flat out lie, i.e. "I was picking up my girlfriend from work and I was in the parking lot the whole time. He must have run my plates." When you go to the place of business and ask the manager to see the tape, you will see that the client was driving when he was pulled over by a cop. When you mention this to the client at the next meeting or before pre-trial conference, he and his girlfriend will "swear" that he was not pulled over.
Are you practicing, dolt? That's right. You are still waiting to take the bar exam.
Actually, I was referring to liars in clinic, Bitch. Who wants to represent such scum for peanuts? At least, with the corporate pigs, you can get paid - even if those clients are demanding fixed rates. But you aren't in the running for Biglaw, so that is not an option for you.
DeleteKeep trolling. And getting ready for all those foreign trips that you are allegedly going to take during summer. Yes, that should help you pass the bar. If you pass, it should take your clients ten seconds to realize that you are clinically insane.
It doesn't really matter to an insurance defense firm whether the claim is $10,000 or $1,000,000 - every case is an opportunity for billable hours.
DeleteWell I'm a republican who is opposed to tort reform. Nando is basically right (although his emotions and name calling betray an underlying lack of intelligence.) I am in...Texas...where I guarantee you it is much effin worse. The insurance industry and the chamber of commerce are no more for "free markets" than Che Guvera was. Just like every other vested interest, they lobby politicians for unfair advantages designed to protect their own franchises and hurt others.
DeleteMy point is this, Nando if you were smart then you would accept reality and play ball with the Republicans in charge. Swallow your pride and deal with it.
Is this post attacking conservative views meant to counterbalance the earlier post pointing out that scamdeans and elite profs are almost always left wing?
ReplyDeleteIn any event, can I question the premise of the post that "tort reform" is a bad idea? Is it possible to create a happy medium where businesses can't be sued out of existence by predatory lawyers (the bad side of torts) while also preserving torts as a recourse when genuine wrongs have been committed.
Both the abusive side and justice-serving side of torts are real. Please lets not pretend either one doesn't exist.
Name one business that went out of business due to frivolous litigation.
DeleteThe post is meant to point out that one giant source of attorney employment, namely torts, has significantly contracted over the past two decades or so. Young attorneys don't have the career span to see how a huge source of revenue for attorneys has vanished. Likewise, if you go back a few more decades, you would find that another huge form of revenue for attorneys was doing title abstracts and closings for people. This work was all lost with the rise of the mortgage industry and the title industry. Many older attorneys were very angry in their day at the bar associations for not protecting this source of revenue because it was their bread and butter.
Delete"businesses can't be sued out of existence by predatory lawyers (the bad side of torts) while also preserving torts as a recourse when genuine wrongs have been committed."
DeleteI really hope you're not a lawyer.
This. does. not. happen. Never has, never will.
There are so many checkpoints in the system that the idea of a predatory lawyer driving an innocent mom and pop out of business because of a third-party personal injury not directly caused by mom and pop is a bogeyman created by insurance companies to stir up controversy.
1. Most businesses who have any level of exposure to personal injuries carry (and should carry) general liability insurance.
2. Almost all businesses that rent property and/or have an active mortgage have premises liability insurance.
3. Almost all businesses are incorporated as Incs. or LLCS, meaning that even if there is a judgment, the officers of the business can pass it through bankruptcy, screw the injured, and restart the business under a new incorporation/LLC.
4. Attorneys are barred from filing "predatory" or "frivolous" claims under state and federal ethics and procedural rules, such as Rule 11.
5. Judges are more than willing to dismiss cases where they get a whiff of predatory personal injury attorney fishing for a case.
6. Same, but with summary judgment.
7. Juries are sympathetic to mom and pop type stores, especially if they're on the hook due to resp. sup. and it would be incredibly unlikely for a jury to find liability against a small business where they know it would shut the small business down.
8. The appeals process has rarely been plaintiff-friendly.
If there are lawsuits where PI attorneys abused the system, it's because the above checks and balances broke down.
So-called "tort reform" is nothing - NOTHING - more than insurance companies trimming their own liability for personal injury and malpractice claims to bare bones while still selling insurance products at the same rate to fearful customers.
It's also the ultimate rejection of the ideals most conservatives SAY they uphold: the big bad centralized government is intervening on the independent judiciary and the common law to decide how disputes between two parties should end. For people who ostensibly believe in small government and libertarianism and free markets, it's pretty telling about what their interests really are.
The system as it was protected genuine torts just fine.
Anon 6:06 here again,
DeleteMy family had a small hotel business renting out some vacation homes. Once we had a lawyer come stay at our house. He looted our home of expensive items. When we called to confront him, he threatened all manner of lawsuits explicitly saying our business would be shut down.
We didn't have lawsuit insurance that I know of. Even if we did, premiums would skyrocket after just 1 legal battle.
So yes, there are scummy lawyers who can and do close down businesses. By the way, ever heard of obstetrician malpractice suits? Remember John Edwards winning a lawsuit about an OBGYN "causing" cerebral palsey? This is why American doctors are flooding into plastic surgery practice rather than areas where they're needed, like OBGYNs.
About your hypocrisy accusations, yes I think small govt is great and common law is great, but the law can be changed to limit tort liability. Especially as social conditions change and a class of parasitic lawyers develops, earning their living off of slip and trips. If lawyers tried this stuff 100 years ago they'd be disbarred; today barratry and champerty & maintenance rules limiting scummy lawyer behavior are dead letters. That part of the beauteous common law tradition deserves to be re-enforced! Lastly, there's no hypocrisy in limiting tort liability, it doesn't create a centralized govt agency to manage society.
RAB, that's sad for lawyers but there are many benefits to society, especially people running businesses, OBGYNs, and so forth.
DeleteOne anecdote about a lawyer threatening someone with bullshit is not evidence of anything. That is like saying that one alcoholic doctor who drinks in the ER should inspire legislation to limit ER doctors. And as for the fiddle played for OBGYNs, their crazy insurance premiums is as much a result of the insurance system that we continue to maintain because apparently we think it is cost effective and smart.
DeleteMy anecdote is a reply to someone who said not 1 case of tort abuse exists. ("This. does. not. happen. Never has, never will.").
DeleteThat said, I do not believe my case was the only example in the history of the United States of tort abuse.
As I said in my original post: there is both an abusive side and justice-serving side of torts. I think I'm being pretty even-handed here! Why can't you guys bring yourselves to admit that tort abuse exists and is indeed a problem.
"My anecdote is a reply to someone who said not 1 case of tort abuse exists."
DeleteRight, but it isn't a very persuasive reply. If I read you right, there was no lawsuit filed against your family business. This guy made a bunch of threats, and you let yourselves be intimidated. That's hardly "tort abuse." It's just trash talk.
Just because someone says they're going to sue you and shut down your business doesn't mean they'll be able to do so. On the facts you cited, what possible causes of action would this attorney have had against you?
A better course of action would be to hire an attorney to file suit to recover your property. Let the other guy make whatever frivolous counterclaims if he wants. Then your attorney can ask the court for sanctions. If you had actually given the system a chance, you may have had your rights vindicated!
No amount of "tort reform" will protect people willing to let themselves be intimidated by a fast-talking lawyer rather than seek competent legal advice.
This is a perfect example of what happens when judges get chosen in elections that mirror legislative and executive elections. Business takes over the supposedly independent judiciary. This same problem happens with social issues. For example, in Iowa after the seven Republican judges unanimously legalized gay marriage, the national party funded opposition in the next elections and now the Court is one judge away from reversing that prior decision.
ReplyDeleteJustice O'Connor has some interesting ideas for protecting judges but also holding them accountable to the public - a sort of hybrid system. But the trend toward expansion of judicial elections is scary and the result is exemplified in the elected judges dismissing the NY scam suits.
^ Whatever, dude. An independent judiciary was a fine idea in colonial times - when the judiciary was populated almost exclusively by wise and honest men.
DeleteWith political prostitutes like O'Connor on the bench, ALL judges should have to stand for election every single year. The VOTERS don't want "gay marriage." "Business" doesn't give a fuck about that issue.
Considering how much judicial activism we have today, asking for more "independence" in the judiciary is like hiring some lazy shitbag employee that you can't fire.
Fuck that.
It is not black and white, as I said. Term limits are one method of limiting long term power grabs. But voter-based judicial elections defeat the purpose of that branch entirely - might as well just have legislaters that judge cases on the side.
Delete^ Yeah, I realize it would defeat the purpose of Art. III - but the profound corruption of the judiciary has made that purpose obsolete.
DeleteKing George III was pretty damn independent from the whims of the voters, too - but that doesn't mean it would have been a good idea to keep him in charge of anything.
As I said, the voters didn't want gay marriage, and the businesses don't give a shit. And if a court had released such a decision in 1789, the Founding Fathers surely would have destroyed its judges - and perhaps even tortured them to death. And your whole "gay marriage" issue is SOLELY about benefits and welfare payouts, pure and simple.
Every year, dude. Those assholes should have to stand for election every single year. It's really a question of which group you trust less: the average voter, or those pedigreed shitheads who fucking infest the federal judiciary. Wlm F. Buckley answered that question correctly.
Gay marriage is a fight for welfare benefits? That is a new one.
DeleteRegardless, without the judiciary, we would not have many of the civil rights that we have, which would have been destroyed in populist law and order hysteria. Sure, courts get it wrong sometimes, but they play an important role. Yearly elections would lead to even worse corruption than we have today and even more special interests pimping out their armies of judges. If yearly elections happened, say goodbye to the fourth, fifth, and sixth amendments and pray that a cop never targets you for a random stop-and-frisk (and often a Disorderly Conduct arrest to avoid liability when the person pleas out to avoid a year of court dates).
Good article, and yet another example of how the demand for legal services is not, and never will be, what it used to be in better times (e.g. 60s-early 90s).
ReplyDeleteAnother part of this "perfect storm" is the availability of fewer public sector jobs (e.g. federal govt., prosecutors/public defenders, state/local government agency attorneys). It used to be these jobs were a consolation prize for those who couldn't get a job with a private firm. Now they are very competitive since governments have drastically cut back on hiring, and former Biglaw attorneys have been dumped on the job market in droves. Also public sector jobs now pay about as well as, or better than, many private practice jobs, while featuring better job security, better benefits, and better IBR/PAYE terms. Some even offer pensions (remember those?) No wonder every such job opening gets hundreds of applications.
"Taxpayers are on the hook to pay the bills for the injured."
ReplyDeletemaybe we should redistribute less wealth.
You can limit torts and have the state pick up the tab through generous welfare benefits, see Scandanavia. Or you can have a legal system that allocates the tab to the responsible parties relying on private attorneys and litigants. Or you can have both to some degree.
DeleteIf you have neither, you have a dystopic hellhole, e.g. Michigan.
tort reform does limit possibilities fro many young and seasoned lawyers. I had two good friends that handled PI work and one that did insurance work. before tort reform in my state, they would tell me about some of their cases and I would just shake my head. I was amazed at the cases they were filing and the inside info I was getting from them. from my limited window, tort reform is a good thing.
ReplyDeletethe pi attorneys are now doing ssi disability stuff and the insurance guy is still keeping busy. ssi disability is a tremendous scam that needs to end. It will fortunately end for the better of the taxpayer. but many attorneys will be out of work.
what's good for attorneys is not what is always good for the country
http://nationalreview.com/article/346948/dubiously-disabled/page/0/1
Deletelink to one story re ssi disability article
Good article. I learned something new.
ReplyDeleteTort reform --whether you favor or oppose it-- has had the inevitable result of vastly reducing if not eliminating entire sectors of litigation which results in greatly depressed demand for litigators. Any mention of this undeniable, national-level economic reality is conveniently avoided by the Law School promotional industry, resulting in yet further misleading of students. It's been going on for over a decade. It's all over the country. And it's unrelated to The Bubble and the Great Recession.
ReplyDeleteTrue transparency should include mention of macro market conditions, along with employment outcomes, salary outcomes, etc. Law school will sell you a ticket to sit for a professional title. Buy the title if you want, but don't you depend on it as an income producer.
I agree with @8:50's last sentence. What's missing from this one-sided analysis is that with less lawsuits (or threats of lawsuits), business costs are lower, and that ultimately results in lower prices to consumers.
ReplyDeletePeople aren't going to care if lawyers are out of a job because they can't make a living suing others. In fact, people may be happy about it if they view attorneys as life-sucking parasites who discourage business innovations. This post doesn't exactly dispel that notion.
"Name one business that went out of business due to frivolous litigation." -- Maybe take a look at Dow Corning, which had to be in bankruptcy for nine years due to litigation over breast implants. A number of large, independent reviews of the scientific literature, including the U.S. Institute of Medicine, have subsequently found that silicone breast implants do not appear to cause breast cancers or any identifiable systemic disease (taken from Wikipedia).
"Almost all businesses are incorporated as Incs. or LLCS, meaning that even if there is a judgment, the officers of the business can pass it through bankruptcy, screw the injured, and restart the business under a new incorporation/LLC." -- This comment completely ignores the fact that shareholders (most of whom aren't officers) had their entire investment in Dow Corning wiped out due to an uproven allegation.
Allowing "jackpot justice" cases like Dow Corning to occur makes it harder for companies to raise capital to create new technologies that improve society as a whole, even if it's to the detriment of lawyers.
Maybe there'll be a future post complaining about how do-it-yourself legal websites are putting attorneys out of business.
You are making my point. The money that was flowing through to lawyers has shifted to business and the insurance industry as profits. You may think that is politically and economically where it should be which is fine. But my point is that lawyers were the losers with this shift and those jobs are not coming back any time soon. The jobs are gone is my point.
DeleteR A B, thanks for the reply. The post is focused on employment for lawyers, so of course tort reform comes across as a big negative.
DeleteThe flip side of that equation, and the question that the post should also address is whether society as a whole is better off having less lawyers filing lawsuits.
That's more of a big picture issue, but the bottom line is: don't go to law school.
Exactly. If society has chosen through its elected representatives and judiciary to eliminate compensation for personal injuries, so be it. But if that is the case, its probably not a brilliant idea to go into a profession which services that industry. Another way that lawyers are the losers in this economy.
DeletePoint of clarification - Dow Corning is a joint venture, so my comment above about bankruptcy as applied specifically to Dow Corning is probably not a good example. But, the bigger point is that filing bankruptcy for a business is not as pain-free as the original poster makes it sound.
DeleteJohns-Manville was put out of business by asbestos litigation. If you go up to Thetford Mines, Quebec where they mine asbestos deep in the earth you will find that the miners are no more prone to lung cancer than anyone else. All a big junk science hoax that made a lot of lawyers rich.
DeleteUh, prolonged asbestos exposure does severely increase the risk of lung cancer, mesothelioma, etc. You can have your random miners. I'll take modern epidemiology and every reputable world health organization.
DeleteDow Corning still exists (Ch. 11 bankruptcy). It's actually a great example because it's a joint venture. When large corporations want to take on high-risk ventures, they'll usually create a separate entity to shield the core business from litigation threats.
And for that matter, Dow Corning was one of the most profitable companies in America during the early 80s. They (as many companies actually do) should have put more money into safety and product research. When they actually caught wind of something being amiss, they continued production unabated even though it was a small portion of their business.
Poor leadership decisions and management of the allegations basically did the company in, not lawyers going to the courthouse.
Dow Corning's implants killed women. Fact. That's not free market enterprise working. Competition is supposed to force businesses to IMPROVE their products for the consumers' benefit---that's why it is a good thing---it helps the consumer. But Dow Corning's implants killed the consumer = market failure = lawsuit time. Do you get this???
DeleteThe tort reform we're having now is 'morning-after' reform.
ReplyDeleteTrue tort reform meant managing the number of lawyers produced, which has the effect of reducing the number of desparate, predatory lawsuits brought on thin facts by hordes of practitioners praying to hit at least something.
Which would have been less cruel? Telling students they failed to get into law school... or letting them finance and complete law school only to graduate into this?
Fewer practitioners = tort reform.
I have to agree here. As I drive around I see so many bloody PI firms advertising, yet I know loads of people who have never been injured. No way are all these cases legitimate, but as 11:31 points out with so much competition they've got to take everything and see what sticks.
DeleteTort Reform has hit Florida pretty hard, although tort litigation is still a going concern. Of course Tort Reform does have a huge economic impact because of all of the players. Not only the attorneys. Not only the Plaintiffs. But there are a world of others who have relied on litigation to make their livings. Chiropractors and Hospital emergency rooms feasted on No-Fault benefits, which are soon to disappear. Expert witnesses and Court Reporters have much less business. Physicians are not getting their outstanding receivables paid. People injured on the job can barely find worker's comp attorneys because fees have been so limited, so they are at the mercy of the insurance industry. And yes, the Insurance Company attorney drones are fighting like made over the smallest of cases, trying to generate as much income for their pathetic little firms as they can do. In the end, In addition, the loser in Florida can be liable for the winner's attorney fees. Add in arbitration agreements and biased juries from years of insurance company brainwashing, and for the most part, consumers have lost or are losing access to the Courts. I started my own practice years ago and have done quite well. I'm only glad I am at the end of my career and not the beginning. I doubt seriously I would consider starting my own practice today, especially with the indebtedness that so many kids have. I have no interest in doing family or criminal law.
ReplyDeleteIt seems the point of debate in these comments is one where the primary question is, "Is society, as a whole, better off as a result of tort-reform?"
ReplyDeleteThere is no study that could possibly isolate the effect of tort-reform, itself. But if you want to look at how society has fared overall during the last 30 years, this data is readily available. Look at historical graphs of the GINI coeeficient, wealth distribution, income distribution, household debt and inflation-adjusted household income.
I think if you look at each of those, you can see that, for most people, we are back-peddling.
Remember all the promises that lowering taxes on the wealthy ("job creators") would trickle down ("create jobs")? If so, you'd think that we'd have negative unemployment these days.
Remember how increases in productivity (including the advent of computers and off-shoring) was supposed to mean that American workers could be far more efficient and thus enjoy more leisure time? Yep. How's that working out?
The trend is evident. Increases in productivity are reaped by capital. Labor keeps laboring. Pensions? I think I remember that term in some history book. Oh, yeah. Wiki says it is something like a paid retirement in exchange for years of service. These days, the standard is work 'til you die.
Austerity! Cut benefits! Workers have to be more competitive!
Yeah, "competitive." That was the word used to convince dumb-ass conservative workers that globalization was a great thing. We Americans are competitive! Let's compete! The poor sods had no idea that the only thing "competition" meant was "you better get used to working for less, or we're sending your job to some downtrodden soul in China or India."
Check these statistics I mentioned. Consider that for workers, everything is on the brink. Work for less. Suffer unemployment. Work harder. Retire later, if ever. All the while, the DOW is at its all-time high and Wall St. bonuses are going strong.
Here's a source to get started: http://www.motherjones.com/politics/2011/02/income-inequality-in-america-chart-graph
Well said, JeffM. Perhaps when the current crop of 0L's graduate the majority of the American populace will have realized how badly they are faring under tort-reform and other pro-conservative trends, and the tide will start to change for the better.
DeleteI doubt it though.
Winter is coming.
"Perhaps when the current crop of 0L's graduate the majority of the American populace will have realized how badly they are faring under tort-reform and other pro-conservative trends, and the tide will start to change for the better"
Deleteyou are delusional if you think we are experiencing pro conservative trends.
well a lot has changed in the last 30 to 40 years that helped cause some of these trends some of these trends. one example is the number of children being born to single mothers without their fathers involvement. if these were nuclear families, the household wealth would most certainly be much higher. rather than becoming productive members of society, they become drags on society. illegal immigration is a huge problem that has made it very difficult for people here legally to get jobs.
Deleteyes, there are factors that are making us worse off, but tort reform isn't one of them
Finally, someone has touched upon what I have predicted or atleast to an extent thought about when I first read about tort reform over a decade ago, that lawyers would be needed much less, since corporations who are sued need less of them also.
ReplyDeleteHowever, not all states have tort reform and on the federal law there is some tort reform, but
So when you hear about multi-million dollar lawsuits it's not always a "tort". Torts are used to sue for injuries particularly, so that is why businesses and other organizations want to limit lawsuits and make it difficult to sue for legitimate claims.
A term like "non-economic damages" sounds much better in the PR department, that "damages for loss of limb,death,etc". Frank Cornelius, a lobbyist who help pass a bill in Indiana wrote an article "Crushed by my own reform".
Loser pays may make some sense, but often-times corporations have money and plaintiffs don't so attorneys can't afford a hit for small law firms especially, which is why you have free consultation offers also.
Tort reform laws are also written by the various businesses to enrich their industries, for instance the collateral source rule attacks plaintiffs who have other insurance or for instance taxpayer funded health insurance. Malpractice cap bills limit attorney fees for plaintiffs but not defendants.
The definition of a frivolous lawsuit isn't necessarily a guy suing millions for hot coffee or dirty pants, it can be a technical claim in which there is legitimate injury and possible circumstances, ie emotional distress but supposed there isn't much evidence or it's not clear cut. Nevertheless, when a friviolous dirty pants lawsuit airs, it gives ammunition to the tort reform advocates, it makes good media, good pr, much like the welfare queens argument.
Already however, some states and many folks are re-questing tort reform such as in medical malpractice. Tort reform didn't help Michigan which until recently was doing really bad economically, the auto bailouts did help a bit, although I personally didn't support it.
The lawyer profession of course has many other challenges, a glut of lawyers who though the money was easy to come by and took on debt, this isn't to say that law school is easy or that folks didn't think they didn't have to work hard at all but the scam or reputation. The Lsat and other legal material and documents are an industry, overhead,rents,venue,judges,staff, and stress add to the woes.
It's also unfairness, while the easy to get in schools and lackluster schools and miserable students are understandable, even "okay" schools were students are dedicated are victims of the "system", because of the LSAT and the "name behind degree", students even in "okay or somewhat decent" schools who work hard are competing against other students because corporations while hire 1 or 2 folks out of the dozens they hire from harvard,yale,etc and many folks are looking at say the district attorney;s office for a half-decent salary which is competitive also.
There is no question there is lawsuit abuse and lawsuits that have less merit or have meritable conditions but the wrong blame. However, using it as propaganda for an agenda is wrong. If a parent makes a minor mistake we don't say the parent is bad as a whole and the child needs new parents. We also wouldn't make the child boss or dictate the parents.
Of course tort reform has been somewhat partisan lately but not completely so, many Republicans have been trial lawyers or personal injury attorneys such as mel martinez and others. It was not as controversial because many folks were really injured and big business was not behind the movement. Texas, a conservative state had very strong consumer protections before tort reform.
Anyways, it's great that someone has atleast mentioned tort reform, aka business influenced tort reform.