[Back in 2007, a ridiculous lawsuit spawned an even more ridiculous pronouncement from “The View’s” Rosie O’Donnell, which prompted the following post (originally titled “The Pants, the Judge, and Rosie’s Mouth”) on this blog’s predecessor, The Ethics Scoreboard.The two law-related issues that the public has the most difficult time grasping are why lawyers defend guilty people, and this one: the contingent fee system for civil plaintiffs. While I was pre-occupied the last couple of days by two challenging ethics programs and 10 hours of driving back and forth into West Virginia to deliver one of them, I missed the outbreak of another “loser pays” discussion in one of the comment threads. It’s clearly time to run this one again (I last put it on Ethics Alarms in 2010), with a few tweaks.]
The tale of Roy Pearson, the infamous Washington, DC administrative law judge who is suing his dry cleaner for damages of $65.5 million for a lost pair of pants, would normally warrant scant comment beyond this obvious one: Pierson is a bully, his lawsuit is unreasonable and unethical, and he deserves whatever sanctions the legal system can devise. A Washington Post editorial suggested that the lawsuit, which Pierson says is justified by his inconvenience, court costs, and the mental anguish caused by the loss of his beloved pants, is proof enough of bad character and terrible judgement that he should not be reappointed to another ten-year term. [ Update: He wasn’t.] That would normally end the issue, freeing me to move on to more important matters, like global warming and American Idol.
And then Rosie O’Donnell opened her big mouth.
Chatting about this idiotic case in her waning days on “The View,” Rosie opined that it shows how our justice system needs a little tweak…
ROSIE O’DONNELL: You know, what’s great in England, if you bring a lawsuit and the other person wins, you have to pay their legal fees. I think we should institute that in America.
JOY BEHAR: That is a good idea.
ELIZABETH HASSELBECK: That is a great idea.
O’DONNELL: That is a great idea! So let’s say you get sued– this guy sues and he ends up losing the $67 million for a pair of pants and, shocking, maybe he’ll lose, then he has to pay the legal fees of the people he sued. I think that would be great.
HASSELBECK: Why don’t we have that?
O’DONNELL: We don’t have that because lawyers have a big lobby in America in the political system.
For those of you who don’t watch ABC’s “The View,” Behar is a former stand-up comic, Hasselbeck is a “TV personality” whose primary assets are nice abs and the fact that her husband is an NFL quarterback, and Rosie is the current American queen of the vociferous uninformed opinion. [ UPDATE: All three of these opinionated, under-informed and vapid women have, thankfully, left the show, though what remains is hardly an improvement.] These three intellectuals managed to reduce the unique American civil justice system that has protected the innocent, powerless and victimized superbly to a stupid lawsuit over a pair of pants, and misinformed millions of Americans while doing it.
“Why don’t we have that?” That is, why don’t we have the British system that turns every lawsuit into a major financial risk to the plaintiff? We don’t have “that” because it would effectively cut off anyone without millions of dollars to burn from redress and damages as a result of major injuries caused by large and wealthy organizations. America has a contingent fee system in personal injury cases, which means that lawyers get paid only if a case prevails. It also has a system of court-ordered punishments, including court costs and fines, for plaintiffs and lawyers who bring absurd lawsuits like “The Case of the Vanishing Pants.” But Rosie’s brilliant solution would discourage even the most deserving plaintiffs from suing corporations that sold them deadly cars, bad drugs, fatal toys and other defective products. It would make it harder for working parents to sue negligent hospitals that left their child blind and brain-damaged, and careless surgeons who amputate wrong legs or miss obvious tumors while examining patients. The Catholic Church would have loved Rosie’s system when it was being brought to court for allowing sexual predators to serially molest young boys.
America leads the world in product safety because victims of negligence and callousness can sue without fear of being clobbered by companies that can spend, or threaten to spend, millions in their defense. The big pay-off from contingent fees, some of which are certainly excessive, provides incentive for plaintiff’s attorneys to sink millions of dollars of their own assets into legitimate cases, allowing them to be tried.
Rosie to the contrary, the fact that a litigant loses does not mean that it was a frivolous suit. Her system would be a gift to every manufacturer of a dangerous product, every designer who paid more attention to aesthetics than safety, every bad doctor, every careless driver, every dishonest insurance company, and every shoddy construction company. And you would still get occasional jerks like Pierson filing lawsuits for lost pants.
Good plan, ladies.
Let’s talk about a lawsuit for the tort of talk show malpractice.
And yes, the trial lawyers* have a very effective lobby, and it has helped keep various state reforms of the tort system from tilting so much to the benefit of business and away from individuals that consumer safety in America would be just a memory. Certainly there is self-interest in this, for the contingent fee system has made many of them very rich. It has also saved millions of American lives and prevented untold misery. And the wealth of those lawyers allows them to take litigation risks that their clients never could afford.
During her long and annoying career, Rosie O’Donnell’s ignorant and badly-reasoned rants have been, by turns, amusing, ridiculous, appalling and funny. This one, however, was irresponsible, because it misled the public about one of the best features of the American justice system, the fact that any citizen can seek redress from injury without having to fear terrible financial consequences if he or she loses. That wouldn’t occur to Rosie O’Donnell, of course, since her mouth has made her millions of dollars and, despite its heavy mileage, will probably make her many more.
It may be too much to ask someone like Rosie to do some research and make critical distinctions, but even someone of her limitations should be able to avoid confusing unethical lawyers like Pierson with true champions of the powerless, like Ralph Nader and the thousands of other dedicated trial lawyers who care about lives, not pants.
Addendum: I worked for the Association of Trial Lawyers of America (now inexplicably calling themselves the American Association for Justice) from 1987 to 1994. My job responsibilities involved publishing, meetings and research, not legislation. I have been critical of the association from time to time, but I also worked closely enough with its members to appreciate that their dedication to obtaining justice for the injured is at least as fervent as their enjoyment of the income they derive from their efforts. I got to know well many of the prominent members of the association in my time there. Some of them were among the most dedicated champions of the poor and exploited that have ever lived, and for all these, the contingent see system was an indispensable tool. One of these lawyers was Ron Motley, who was instrumental in holding the asbestos and tobacco industries to account for their deadly products: you can read about his remarkable accomplishments in his recent obituary, here. Another was the late Harry Philo, whom I write about, with awe, here.