By Richard Binder, Esq.
Several years ago a Forum article was published in the Los Angeles Daily Journal, written by Charlotte Lowell, a defense attorney, who lambasted plaintiff’s attorneys and the tactics they employed on behalf of their clients. The following is Mr. Binder’s reply to that article which the Daily Journal published as a rebuttal.
Charlotte Lowell’s recent Forum article is a fine example of “blind advocacy,” (the article was entitled “Why Lawyers Don’t Want Reform.” Forum, Jan 15th). She faults the current tort system, saying that plaintiff’s attorneys sue not only the party most obviously at fault, but also – in her words — the parties who can afford to pay the most money.
As an example, she cites a case of an injured party hit by a drunk driver who sued The State of California for poor road design, sued and the manufacture of the victim’s car, for not making the car stronger. What I can’t fathom from the article is — what’s the problem?
First let me admit that I am a dues-paying member of the Consumer Attorneys Association of Los Angeles, that she so gleefully attacks as greedy parasites. But there is a basic truism she does not deal with – justice is expensive.
Consumer attorneys do not have the luxury of being able to represent clients hourly. For twenty years I have offered to my contingency fee clients, the alternative of paying me on a strictly hourly basis. Not one has taken me up on the offer – because most cannot afford it. Also, it is almost exclusively the burden of the plaintiff’s attorney to finance the “costs” associated with litigating a case. But for the willingness of the consumer’s attorney, to roll the dice on compensation, not to mention an outlay of tens of thousands of dollars in advanced costs, most plaintiff’s would have no remedy in court.
Now, as to those “poor” secondary defendants she defends as victims of plaintiff’s attorneys greed. Can she not conceive that there are areas of roadway that are an open invitation to death and mayhem? Will she not admit that as a result of litigation initiated by consumer attorneys, cars, (including the one she drives in) are safer today — than ever before? Will she not concede that much of the efforts made by businesses to make their products safer – and yes more expensive — is the result of lawsuits brought in the past or the fear of future legal action?
Personally, I tense every time I hear proposals about limits on pain and suffering, as though that element of injury is less real than any other part. Confinement to a wheelchair, or the loss of a limb, would not be calculated any other way, than in purely economic terms, if Corporate America had its way.
Yes we are a litigious society, but we are also a society where, few if any of us, take responsibility for our actions. In the past, tort reform has resulted in segments of community being relieved from the burden of financial responsibility for negligent conduct. It has also prevented an abundance of victims from gaining access to the judicial system, without any measurable benefit to the public at large. That too is wrong.
Within the past week, the President of the United States has campaigned on behalf of tort reform, proposing specifically a national medical malpractice cap of $250,000.00 (modeled after California’s present law). What he has not shared with the public is that this upper limit of $250,000.00 for pain and suffering, is based upon what was considered “just and fair compensation” approximately thirty years ago, when that law was first enacted. This is but one recent example that the fight to protect the rights of everyday common people against the interests of big businesses and multi-national corporations goes on.