I’ve been reflecting, since yesterday, on the bizarrely angry and intellectually dishonest protests registered here and on his own blog by trial lawyer Eric Turkewitz regarding the aunt who sued her 12-year-old nephew. His arguments, if you can call them that, consisted of constantly shifting the issue from ethics (what the aunt should have done) to law (what the aunt had a legal right to do), denying the core problem (Why would anyone assume that a child is harmed by dragging him into court, subjecting him to examination in front of strangers, and focusing on him as a wrongdoer and responsible for his aunt’s alleges misery, all mandated by the aunt who supposedly loves him?), and appealing to a dizzying list of rationalization and fallacies. He then made his exit by accusing me, a lawyer, of “knowing nothing about the law” (I made no assertions about the law at all—this is not a legal issue) making everyone stupid, and being a narcissist, a full-bore ad hominem attack ending in an ominous “May God have mercy on your soul!” Why would he act like that?
The reason, I realize, is that my posts challenge the basic belief system of the plaintiff’s bar, which I know very, very well having worked in an executive position and run such diverse programs as the research data base, conventions, sections, litigation groups and more over seven years with the Association of Trial Lawyers of America. Now ATLA is called “The American Association for Justice,” a name chosen purposefully to disguise the fact that it is a plaintiff’s lawyer’s lobby by keeping “trial lawyers” out of the name because it had a negative response in marketing studies. (I kid you not.)
Trial lawyers have done a lot of good and important things and continue to, but the profession is corrupting. There is a lot of money to be made, and ATLA–excuse me, AAJ, is devoted to eliminating any limits on their members’ ability to sue anyone for any amount, no matter what harm it does to the economy, the nation, the cost of health care, the bonds of trust in society, personal liberty, or public respect for the civil justice system. Individually, members of AAJ are among the top donors to the Democratic Party, in part to make sure that they can block all Republican efforts to limit jury awards, spurious lawsuits, and damages that have to be paid by negligent corporations when they destroy lives through shoddy products, conspiracies, and other conduct. The other reason is that Democrats support the redistribution of wealth, and trial lawyers profit by it.
In the matter of keeping corporations accountable, the AAJ is, as they will constantly remind us, on the side of the angels. But like other interest groups (the NRA, the ACLU, NOW, and may more) that stake out extreme, self-serving and unethical positions in defense of legitimate rights, trial lawyers often feel that they must take the position that every injury and misfortune deserves compensation by someone else. Eventually, they believe it. Justice is taken out of the equation for all but the plaintiffs bar’s clients. Justice means that someone else is always at fault.
I admired and liked–still do— many of the trial lawyers I got to know while I worked for them. Many are idealistic, most are characters, a majority are clever and “street smart,” and some are brilliant. Still, one of the most disillusioning moments of my life was when a powerful member who was a good friend and someone I thought was among the more ethically astute ended a phone conversation with me with this: “I’m sorry, Jack, we’ll have to finish this later. My client broke his back climbing on a rock, and I have to find someone to sue to pay his bills.”
I began circulating my resume the next day.
This, in essence, is the mindset that even honest trial lawyers, like Eric, may develop over time. The plaintiff is always right; the system should allow anyone to shift the burden of any dire event, including those that are nobody’s fault or the fault of the injured party, to someone else, especially corporations, which have plenty of money. Suggesting that an injured party shouldn’t sue when a lawyer suggests that a jury might find someone else liable, on the grounds that such a suit, though legal, will be unfair, harmful or otherwise wrong is a direct attack on tort lawyers’ values system, which is also, among other things, lucrative.
I have a good friend, a musician and actor who may be the most noble and inherently ethical man I have ever known next to Jack Marshall, Sr.. He had lost much of the hearing in one ear in an operation to eliminate the symptoms of Bell’s palsy. He told me that a lawyer begged him to sue the hospital and doctor, and couldn’t understand why he would not. “That doctor did everything he could for me, and I’d trade the hearing to get rid of Bell’s palsy any day,” he told me. “He may have made a mistake. I make mistakes. I’m not going to try to take the money of someone who did his best to help me.” Occasionally we hear of such people in the news who reason like my friend: both Arthur Ashe and Danny Kaye, who died as a result of contaminated blood received during heart surgeries, refused to sue surgeons who they admired and respected.
Trial lawyers fear and detest such decisions. Their business, income, self-esteem, world view and claim to virtue relies on maintaining the illusion that every injured party can and should sue whomever is most likely to be found liable, and other factors like fairness, compassion, gratitude, loyalty, and common decency should play no part in the decision. My post was based on the ethical principle that a plaintiff engaging in a law suit that may be sanctioned by law and have the possibility of acquiring damages can be wrong and destructive, and that ethical people need to balance these factors no matter what a lawyer advises. Too many trial lawyers , not all, but many, reject this principle.
To be fair to Eric, stupid, ignorant narcissist that I am, I don’t know that he does; reading his blog, I didn’t think so before this incident. It would explain his freak-out, though. If potential plaintiffs started thinking about ethics rather than making someone else pay for their misfortune, being a personal injury lawyer would be far less attractive.
28 thoughts on “Ethics Musings I : The Dark Side Of Personal Injury Lawyers”
I think too many trial lawyers buy into Gordon Gecko’s principle that greed is good and “the law is on my client’s side”. No wonder so many doctors are giving up treating patients because they can no longer afford malpractice premiums.
Jack, I think you need to reread Eric’s posts. He actually said he wouldn’t have taken the case.
PI lawyers these days don’t just take anyone who walks in the door. Whether out of ethics or economics, we have a comparative fault regime in most jurisdictions. You don’t take the case where your client is more than 1/2 at fault.
But, the injured party shares less than half the blame for her injuries, why shouldn’t she be compensated by those legally and morally responsible for their errors and omissions that caused her injuries?
That’s how I read Eric’s post as well. He thinks her lawyers goofed on the liability issue. But he also thinks it’s unreasonable to blame her for taking the advice of counsel on that issue. That kind of makes sense, because they’ve had the years of training (and ethics CLEs) and she hasn’t.
“That kind of makes sense, because they’ve had the years of training (and ethics CLEs) and she hasn’t.”
No, it doesn’t. She is completely responsible for her own actions, and must know that the defendant is a target for him, but family, a little boy, a nephew and someone she is obligated to care for and protect, not the opposite, not sue. She makes the call to sue. The factor of her obligation as a family member is NOT the lawyer’s business in any way–I doubt he was asked about it, as it isn’t a legal issue. You can’t make sense out of this while ignoring where the lawyer’s role ends.
The lawyer doesn’t have more training as the kid’s aunt, does he? in fact he has none. His advice on that matter is worthless, and the aunt cannot claim otherwise.
I don’t know why this is so hard.
What you are failing to understand is that this aunt actually made her mistake before getting the advice of counsel. The mistake occurred at the time she decided to ask if she could make bank suing her nephew for hug damage.
I realize that might not be the exact timeline, but you have to separate the decision into two questions: “Do I sue my 8 year old nephew over an accident?” and “Will I win?” The lawyer gave her shit advice on the second question, but it shouldn’t have mattered, because she should never have entertained the idea of the process in the first place.
Well put. If the option of suing your young nephew is ruled out because it is repugnant to you, as it should be, then the lawyer’s advice on that score is superfluous.
I’m aware there are two issues here, and in this comment I was talking about the second one — the issue of liability — not the propriety of suing a close minor family member. Jack was talking about the second issue as well when he wrote “trial lawyers often feel that they must take the position that every injury and misfortune deserves compensation by someone else,” and when he told his story of the lawyer who said “My client broke his back climbing on a rock, and I have to find someone to sue to pay his bills,” and that’s what I was responding to when describing Eric’s position. I tried to make that clear in my comment.
I don’t understand what your point is… If the lawyer had given better advice, this suit would have died on the vine, but that doesn’t make the aunt a better person, that just means we never would have heard about her…. The predication to sue her nephew was still there.
I’m sorry. I think I get it… You’re defending the profession?
I’m trying to make a distinction and defend her reliance on the lawyer for that part of the ethical decision only. Some people have accused her of trying to get someone else to pay for an accident that is basically nobody’s fault. (Or even her fault, like Jack’s example of the rock climber.) I’m saying that may be the case, but if so, it’s not her fault, because she was acting on advice of counsel about a technical legal matter, which is a reasonable thing to do.
The reason I’m trying to make this distinction is the same reason we discuss ethical issues in the first place: To guide our future behavior. So if you or I get hurt and are trying to decide whether to sue someone, I think this incident illustrates that suing children is certainly questionable, but it does not argue against our relying on a trial lawyer’s evaluation of who might be liable for our injuries. But if that person turns out to be a child, that’s a whole different issue.
I seem to have trouble writing about this clearly. Sorry about that.
Because some people and entities can’t be sued. You can’t sue Katrina or Sandy, you can’t sue Vesuvius. And you shouldn’t sue small children or animals for being normal, that road leads to keeping them chained in little boxes until they might be let out safely… but then they would only be feral and unsocialized. Learning how to behave includes the certainty that they will err, but you don’t punish the learning process. Really, you can’t tell me that the aunt probably didn’t do the same kind of clumsy at that age but she’s not granting her nephew the same mercy.
Now if the real problem is that the insurance isn’t paying, there are also other venues, publicity, petitions, even consumer protection types. Putting a child in court is a terrible coming of age even if they still interact.
1. I read his posts. The contention that a client has no responsibility for the decision to sue is offensive and absurd. As I have said, said to Eric, and keep saying but no lawyer is apparently capable of hearing it, the legal calculus to sue is the lawyer’s, but the ethical calculus is always, entirely, completely the client’s.
2. Yes, he said he wouldn’t take the case because it would lose. But apparently he would have advised the aunt to sue her beloved nephew if she could make a buck out of it. That’s because he isn’t obligated to give a damn about the kid. She is.
2. “But, the injured party shares less than half the blame for her injuries, why shouldn’t she be compensated by those legally and morally responsible for their errors and omissions that caused her injuries?”
You are warped on this issue too, apparently. She wasn’t to blame and the child wasn’t to blame. There are such things as accidents—Christ, Jay, you could have been that ATLA member that launched me out of sympathy with the organization; did the post register at all? Why you ask? Because its a little boy, who isn’t properly liable at all. Because it’s her nephew. Because the law suit requires harming an innocent for money. Once a lawyer can’t see that these are relevant and in fact dispositive factors, he or she is beyond hope. Do you really think the jury spit out the law suit just because it didn’t meet the proper liability standard? The aunt lost because the jury was disgusted with the lawsuit. And properly so, not on the law, but according to matters of decency.
Eric could articulate an ethical argument, because there isn’t one. What he has was law, rationalizations, and irrelevancies.
Does a client have responsibility? Of course. But she is also permitted to rely on the sage advice of counsel. We encourage it, in fact. And, if the whole family, kid included, agreed that he was simply named in order to pursue an insurance claim, then she didn’t necessarily act unethically. You assume she harmed an innocent for money–you have no idea if he was harmed.
Do accidents happen? Of course. But aside from geological, meteorological, zoological, or astrological events, most injuries result from some human involvement. When a human is involved, then the question becomes is that human 0% at fault, 100% at fault, or somewhere in between. If the human is more than 0% at fault, taking into account factors determining fault (age, abilities, knowledge, etc.) it isn’t entirely an accident.
Your ATLA member might have had a problem since the only human appears to have been his client. But, again, we don’t have all the facts and it sounds like you didn’t have them then, since the member was still in the analytical process. You rushed to judgment. What if someone gave him a frayed rope, or the safety harness was defective, or the spotter was reading a newspaper? Maybe there was someone to sue. And for all you know, the member may have reviewed the situation and said “nope, only the client is to blame”.
Just like you may have rushed to judgment with the ATLA member, you seem to be rushing to judgment with the aunt, pronouncing guilt without all of the facts.
“If the human is more than 0% at fault, taking into account factors determining fault (age, abilities, knowledge, etc.) it isn’t entirely an accident.”
By this logic when I dial the wrong phone number, because it’s my fault for dialing that wrong phone number, it wasn’t an accident, and I really meant to do it. I probably owe the other person money, right? Mental anguish? Pain and suffering? Lost time?
And to really drive the point we’re making home: Of course you can’t get Mental anguish, pain and suffering or lost time damages from a wrong number. But you can’t get those because the law doesn’t allow for it. For the sake of argument, if the law did allow damages from mis-dialed numbers, would you try?
For the sake of argument, I have no theoretical objections to paying damages for mis-dialed numbers. Of course the process would have to be streamlined to suit the level of damages or else it would be too inefficient to implement. Even small claims court is far too complex and expensive. The process would have to be incredibly light weight to work.
One way to make it efficient is to bundle a bunch of incidents into a class action suit. If some company used a computer to robodial 100,000 calls, and they got the area code wrong or something so it was 100,000 wrong numbers, I don’t know if someone could put together a legitimate class action lawsuit, but I wouldn’t be surprised. I do know that companies that annoy people with intentional phone calls can be hit with multi-million dollar class action lawsuits under the Telephone Consumer Protection Act.
Other than class action lawsuits, I don’t really think this is possible. But if there were some way to collect, say, $1 in liquidated damages, that was efficient, fast, and fraud-proof, I’d have no real problem with it.
In fact, if there were a way I could use someone’s phone number to voluntarily send them $10 and a note that says “Sorry for waking you up at 3 am. Here, have a drink on me,” I’d probably have used it a few times by now.
I would submit the nature of the 2nd half of the 2nd sentence: “…I have to find someone to sue to pay his bills.” Would imply there is no apparent other person involved directly or indirectly, and rather the “find someone” emphasizes much less in determining actual responsibility and more in conjuring up loose connections to some other party with the primary objective being a lawsuit…any lawsuit…not the objective of finding responsibility.
It’s a disturbing comment to hear.
Your response overall, continues to abstract the discussion to one of purely Individual A is accidentally injured by Individual B, therefore Individual A has a *right* to sue Individual B.
But this discussion CANNOT be abstracted, there is very valid facet in this, that keeps it specific and not abstract…the supposed “loving” family relationship between Individual A & Individual B – or to more accurately put it, aunt and nephew.
I totally understand the arguments being made that naming the child is a mere *formality* to stick the lawsuit to the insurance company and I also understand the claims being made that the child has *consented* to such a scheme.
No harm to the child? Please. He’s being taught that in a setting where antithetical parties (a courtroom) have their DIFFERENCES or GRIEVANCES towards each other resolved, should actually be gamed through collusion between what are supposed to be opposing parties to go after a financial entity.
I get it, they don’t like the law that says you can’t sue the Insurance company. But they are choosing an unethical way to fight that law.
Eric said he wouldn’t have taken the case because “It was a loser” not because it was wrong to take the case. I think perhaps you’re too deep in this to understand. When you say something like:
“But, the injured party shares less than half the blame for her injuries, why shouldn’t she be compensated by those legally and morally responsible for their errors and omissions that caused her injuries?”
Fails utterly to look outside the paradigm of law. There are situations where someone shouldn’t sue because it is wrong to. I know this might blow your mind and hurt your pocketbook, but no one is truly served in a society where we walk around on eggshells for fear of some ridiculous liability litigation because we all think like Personal Injury Lawyers.
You and I were apparently writing the same thing simultaneously. Jay’s a lawyer, and his comment exemplifies the point of the post.
When all you have is a hammer, everything looks like a nail?
Or when every problem you encounter is a nail, the first time you see a screw, you instinctively grab the hammer despite possessing all the other tools…
I think Jack’s post is absolutely invaluable. He’s used the term “warping” to describe what happens to you when you practice law. It’s spot on. This discussion has helped me understand another group of lawyers similar to car wreck lawyers: criminal defense lawyers. I’ve always wondered how people can defend criminals, the vast majority or whom are guilty as sin, otherwise they wouldn’t have been charged. (And yes, it’s crucial to having a functioning judicial system, etc., etc. but let’s put that aside for the moment.) I think what happens to criminal defense lawyers is they become convinced that cops and prosecutors are all completely corrupt and evil and every single defendant has been actively and intentionally and maliciously framed.Try talking to a criminal defense lawyer for more than ten minutes about what they do without them saying “Cops are BAD.” This allows them to defend the creeps they defend without feeling at all conflicted.
Then you have the prosecutors who believe that all suspects are guilty no matter what the evidence suggests. This leads them to warp and falsify convictions because it is for the greater good.
Which rationalization number is this? “They’re not the worst?”
“Trial lawyers fear and detest such decisions [not to file a lawsuit]. Their business, income, self-esteem, world view and claim to virtue relies on maintaining the illusion that every injured party can and should sue whomever is most likely to be found liable, and other factors like fairness, compassion, gratitude, loyalty, and common decency should play no part in the decision.” That statement is hyperbole. I am a personal injury lawyer and have spoken with many potential clients who had ultimately decided not to purse a valid case. I have supported each and every such decision. I have also advised many potential clients who had valid cases that the emotional stress, impact on relationships, impact on the future ability to get health care, etc., were such that filing suit made no sense. I have also told many people who had a legitmate right to file a suit and have it decided by a jury that the case would never be successful because the circumstances in which the injury arose would never appeal to a jury in the venue. I received no pay for any these consultations. I am not alone in taking these type of action – there are many personal injury lawyers who view themselves not as “hired guns” but as advisors of people in times of great stress that focus not just on what can be done from a pure legal standpoint. I do not deny that there are lawyers out there who embarrass the entire profession and demean the civil justice system. But the quoted statement (and others in your post) is overbroad and serves to undercut the legitimate point that clients make (and should make) decisions rooted in ethics about whether to file suit after a given event and that some lawyers have financial motives that interfere with good judgment and common sense.
In context, where you’ll note that I did write that this isn’t universal among trial lawyers, but the mindset is an occupational risk, I hoped that “trial lawyers” would be understood to mean ” a lot of trial lawyers/too many trial lawyers and not all trial lawyers. If you are the John Day I know, John, I didn’t need your post to understand that this post has nothing to do with you, and you would be among the last I would criticize on this basis. But you also know what I’m talking about.
Comment of the Day, by the way. Thanks. I’ll post it as such later.
I suggested quite a while ago to introduce a new fallacy: “Not all (X) are like that.” And it was pointed out to me that it was probably a subset of the No True Scotsman fallacy.
“Not ALL personal injury lawyers are ethics corrupters!” Right. We knew that. Obviously… As Jack explicitly said so. But some are. More are than is acceptable… And they aren’t being called to task by their peers. So what’s your point?