Forensic experts are engaged ostensibly for a single purpose: To examine the evidence and opine on it. In contrast, attorneys are engaged to advocate. The dynamics of the U.S. legal system stretch this system because the incentives and risks borne by plaintiffs’ attorneys are grossly disproportionate to those borne by defendants’ attorneys. Three elements of U.S. society and its legal system are primarily responsible for these dynamics: The contingent fee, the Free Shot and the Bum’s Rush.
The Contingent Fee
The contingent fee arrangement provides a mechanism to finance the prosecution of civil lawsuits: Plaintiffs’ attorneys retain a portion of the damage award (generally a third, after first deducting expenses from their clients’ share) if and when they win. If and when they do not win, the attorneys foot the bill.
Under such an arrangement, a victim need not be wealthy to seek and extract justice. In the vast majority of cases, this principle works. And it yields results that all Americans should be deeply proud of – even while we may whine about the costs or the fact that someone not even experiencing the pain siphons off a large share of the proceeds. Particularly when attorneys and experts are qualified, honest, detailed and articulate, and when both parties have made appropriate efforts, the process generally accomplishes what it was designed and intended to, and justice generally prevails. The pejorative qualification is the term “generally.” This is because defendants’ attorneys are generally paid only for their time, while plaintiffs’ attorneys earn or lose money commensurate with both their efforts and the risks these efforts bear.
Not all attorneys fall into a pattern. Like technical experts, many attorneys represent both plaintiffs and defendants, and make their best efforts for the given set of facts at their disposal. But the legal field is also infested with wall-slingers who take every case that walks through the door, do as little work as possible, and simply “play the numbers.” As a “volume business,” an attorney throwing a lot of cases against the wall knows that a few will stick. The cases that stick may even trigger some effort. But these attorneys (as do their opponents) know that most cases will settle for some figure if only because it would cost defendants’ attorneys (and more realistically, the defendants’ underwriters) a substantial sum to defend them even when they win. Knowing this, many plaintiffs’ attorneys establish minimum settlement thresholds just below defendants’ costs. Particularly as some risk of getting pasted always exists, capitulating to these demands is often chosen as a way to cut the defendants’ loses.
In contrast to these dynamics, more ethical plaintiffs’ attorneys will simply honor their oaths and represent their clients zealously. Yet while attorneys do not smell blood, as their crude stereotypes sometimes suggest, they can certainly evaluate costs and risks. And they can certainly evaluate the merits of a case – particularly as evidence is disclosed and examined. As these activities progress, human nature kicks in, and more or less energy and resources are devoted to the effort, accordingly:
- As cases begin to look stronger for plaintiffs’ counsel, the “downside” risks (i.e., expending a lot of time, effort and resources at the risk of limited or no gain) shrivel while the “upside” potential (i.e., the rainbow appears like it will grow with respect to the effort) balloons. In response, plaintiffs’ counsel understandably make increasingly larger investments – examining more evidence, hiring more experts, and setting them loose.
- When, conversely, risks appear to increase and potential gains shrink, plaintiffs’ counsel are left mostly with integrity, pride and a knowledge that they have fulfilled their obligations. But they are also left with large, if not huge, bills. Further, if they do not win, they usually cannot charge their clients for expert witness and other related costs (although I have known some attorneys who did).
Defendants’ counsel operate under a completely different set of dynamics. They are generally paid by the hour, win or lose. Of course, those who win more often can charge higher rates. And, presumably, they get more work. But they still charge only for their time, rather than a percentage of the damage awards their clients may or may not have to tender. At the end of the day, their wallets weigh the same.
Depending on the defendant’s counsel’s marching orders, his or her level of effort may ebb or flow. A traditional underwriter’s approach is to hire a bright improviser and direct him or her to simply discredit the plaintiff’s and other witnesses’ testimony. Because so many witnesses cannot remember where their observation ended and their extrapolation began, this approach often works. But defendants’ counsel may also take liberties with their clients’ frugality, and exaggerate their caution. This results in a lot of low-cost wins that look good on their records. But when it occasionally backfires, these attorneys keep their same wallets while their clients shell out huge wads. Because the outcome of most lawsuits appears to relate far more to effort than evidence (and, similarly, more than the capabilities of attorneys or their experts), this conservatism often backfires – especially where the potential gains are sizeable enough to motivate opposing counsel to outwork them.
The Free Shot
The environment created by the dynamics of the contingent fee is exaggerated, if not distended, by a unique quirk of the U.S. legal system unlike any other in the World: In America, the loser of a civil suit does not reimburse the winner for its legal costs and related expenses. Without the Free Shot, many borderline cases would not even be filed, much less proceed forward. In contrast, the Free Shot helps to account for a plethora of “long-shots” – what are referred to as “frivolous lawsuits.” A handful from my own experience provides a taste of this flavor:
- In broad daylight, without even braking, a 79-year-old motorcyclist ran into the rear of a transit bus after it had stopped to load, killing himself, knocking the 38,000-lb. vehicle half a bus-length forward, and penetrating the rear cap so deeply as to rupture the cooling system. The decedent’s counsel argued that, had the bus driver kept the service brake depressed (a technical impossibility since independently depressing the service brakes is necessary to engage the rear door-opening mechanism), the tiny brake lights would have remained on and the decedent would have noticed the bus.
- Reflecting the commonly-held interpretation of ADA language, a transit agency’s policy vis-à-vis applying passenger restraints to wheelchair occupants was for the driver to ask permission to do so. When the bus stopped short, a wheelchair occupant who had declined this assistance was thrown from his chair. While he claimed the driver never obtained permission, the plaintiff also testified that he would have declined had he been asked.
Some lawsuits are frivolous only against certain parties:
- After deadheading all night after an evening of marginal sleep, a motorcoach began picking up passengers in the early morning and, an hour later, dozed off at the wheel. He bus blasted through a guard rail, flew off a bridge, struck an embankment below, and rolled over several times as it tumbled down hill. Two passengers were killed, and a third paralyzed. The driver, and most other passengers, escaped with minor injuries. After collecting the “policy limit” from the operating company, the plaintiff’s attorneys sued the body manufacturer, the chassis manufacturer, the state’s department of education (with the contradictory claims that the vehicle should have been a school bus yet should also have contained seatbelts) and the state’s department of transportation (claiming the guardrail was defective).
Some lawsuits may initially appear frivolous, but are not at all frivolous once the details are factored in:
- Chatting with a colleague at the bottom of a motorcoach stepwell, a surgeon attending an international medical conference said goodbye when his colleague boarded the shuttle. Turning away without looking, the plaintiff walked into the mounting bracket of the curb-side, exterior rear view mirror, instantly cracking his spine, and curtailing his career as a surgeon and the eight-figure income it would have almost certainly generated. When investigating this incident, I found not only that the exotic, European mirror extending more than two feet from the coach body had a tuck-in feature (that the operating company admitted it used when washing the coach), but that the manufacturer’s quality assurance process found that both the mirror and the door were not the ones the customer had ordered – yet the manufacturer failed to replace them.
Finally, some lawsuits that appear legitimate on their surface turn out to be frivolous upon further examination:
- An electric wheelchair occupant claimed that his chair rolled off a lift platform. (The salient characteristic of electric wheelchairs is that they are designed to not roll – except when the motor is disengaged, an act that not only few drivers undertake, but which feature most electric wheelchair owners do not know even exists, much less where the controls lie or how to operate them.)
The point of all this is that one must examine the specific facts of each case individually and carefully. Few cases are either frivolous or not frivolous on their face. Instead, because only an examination of the facts can establish this conclusion, most judges are reluctant to grant Motions to Dismiss. For similar reasons, most filings are accepted, and their cases permitted to proceed.
This flexibility illustrates the importance of examining the details. Yet permitting virtually any type of case to proceed escalates costs and risks. Just the same, it is important to recognize that that the reason for these costs and risks lies not in the fairness, generosity and justice of a legal system that many claim has been overextended. Instead, it has its roots in the three enigmas cited above. In the unique balance-of powers approach that defines our special form of government, our legal system is the balancing mechanism.
In theory, a defendant may countersue the plaintiff for frivolous or malicious prosecution. However, few defendants undertake this effort, even where the depth of frivolity is almost intuitive and a review of evidence demonstrates it is genuine. This is largely because of the costs of prosecuting such a suit, and the fact that damages are generally limited to the costs of the initial defense effort. The bonanzas often available to plaintiffs are rarely reciprocal. “Sending a message” sounds swell on T.V.. But in the U.S. legal system, only the plaintiffs can generally afford the postage.
The Bum’s Rush
The third characteristic skewing the U.S. legal environment is the fact that the United States is the only developed country in the World with no universal healthcare system, much less a fair or cost-effective one. Without such a system, and particularly with the Middle Class evaporating faster than the Gulf Stream, a single maiming that results in multiple surgeries and a lifetime of round-the-clock nursing care can bankrupt an entire extended family. But those who can afford such luxuries rarely use public transportation. For the tired, the poor and the huddled masses who do, attorneys effectively comprise their healthcare system.
Healthcare and Health.
Give us a healthcare system, give our regulatory and enforcement agencies some resources, and the need for most personal injury lawsuits will vanish. Eliminate the Free Shot, and our legal system’s case calendar will grow anorexic. Even with the contingent fee mechanism, the herd of personal injury attorneys would thin like so many shepherds, blacksmiths, chimney sweeps, typewriter repairmen and jazz musicians.
It is also unfair to whine about the penalties associated with making a tiny mistake. Frankly, those defendants who make tiny mistakes rarely injure anyone. Most of the killing and maiming I explore as a forensic expert results from scores of errors and omissions. Directly or indirectly, a significant percentage of them often contribute to the incident. I will argue that most defendants who make multiple errors and omissions deserve to pay for them. We cannot complain about this and, in the same breath, complain about competition from bandit operators. Since our regulatory and insurance institutions do not weed the bandits out, we should be thankful we have courts and lawyers who can and often do.
Frankly, most lucrative damage awards are victories for the vast majority of safe and responsible operators who otherwise cross-subsidize the unsafe and irresponsible ones via their insurance premiums. Otherwise, if the insurance industry cannot differentiate among the risks associated with dramatically different qualities of operators, and the regulatory process will not or cannot enforce existing or improved standards, it is naive to expect endless lawsuits and escalating damage awards to not ensue.
Torts and Responsibility
In modern America, few good musicians can even find a gig, much less one that can support their families. But the piper can. He earns a fortune. And somebody always pays him.
As long as we embrace the contingent fee, the Free Shot and the Bum’s Rush, the public transportation industry will not likely survive tort reform. Instead, tort reform will simply lead to more frustrated plaintiffs’ attorneys (and their clients) jousting at more and different windmills. I could write a book about the cases I have turned down where the victims’ recovery against legitimate defendants was limited by immunity statutes, and whose attorneys, as a result, are looking to sue cloud formations. Tort reform? Be careful what you wish for.
When one considers all the evidence, law suits and mega damage awards are the only catalyst for reform the public transportation industry has going for it. Maybe if we have enough of them, we may even survive. But we must do a better job adjusting to the judgments.