In Defense of So-Called Greedy Trial Lawyers
It's that time of year. No, I don't mean football or hunting season, or concerns about who will win the World Series; I am referring to lawyer-bashing season. That time of year before an election when a group of politicians and editorialists find sport, and apparent political success, in placing the world's ills on the back of lawyers.
Lawyer bashing, more specifically trial lawyer bashing, particularly greedy trial lawyer bashing, is definitely in season. During the past few days I have heard or read something that blamed trial lawyers for everything from the shortage of doctors and the high cost of insurance, to goods that cost more than they should, the unavailability of drugs and other products, and the nursing home crisis. You have heard them, “I promise lower insurance rates, better medical care, more jobs and safer products. My opponent took money from a greedy trial lawyer.” It appears that almost everything, except the Astros' inability to get in the playoffs, seems to revolve around this one profession.
I should point out that I am not a trial lawyer, greedy or otherwise. I am a law professor. I guess I can take credit for teaching those trial lawyers how to mess up an otherwise well-organized, safe and efficient world. It is obvious that if we could just get rid of the lawyers, Firestone and Ford would have voluntarily recalled all of their unsafe tires, and given generous refunds to their customers. And I know for a fact that if there were no trial lawyers Enron and its officers would gladly be giving substantially more generous severance pay and bonuses to the average worker, and all of the securities firms would be returning money they took from investors they misled. If we could just get rid of the lawyers we could still buy cars like the Corvair, football helmets that cripple kids, three-wheeled ATVs, drugs such as fen-phen, polybutylene pipe for our homes and use the Dalkon Shield contraceptive. Without those meddling trial lawyers, cigarette companies could pay their shareholders much larger dividends by keeping the $13 billion they gave the state of Texas to help pay for the costs imposed by smoking. And, of course, the $2.7 billion recently offered by Libya to settle lawsuits would have been given even without a lawsuit. Greedy trial lawyers!
Like it or not, we need lawyers. All of us. We live in a country that regulates health and safety and resolves disputes through the civil justice system. Private trial lawyers make that system work. If your insurance company doesn't pay when it should, your car doesn't run as promised or your physician operates on the wrong leg, your recourse is to hire a lawyer and sue. We need lawyers, trial lawyers, sometimes even greedy trial lawyers. Just ask the doctors who have filed a class-action lawsuit against their HMOs.
True, a jury may sometimes award what sounds like a lot of money. But every juror that does so says the same thing: “We wanted to send a message not to do business that way.” We trust juries to determine the question of life or death; we should also trust their judgment about punishing a business that acts wrongfully.
Whether you have been defrauded by a stock broker, ripped off by a used-car dealer, injured as the result of a careless doctor, lost a parent to nursing home negligence or had medical problems because of a drug that didn't work as promised, trial lawyers are your only hope for compensation. And more importantly, lawsuits and the threat of lawsuits are the only way the marketplace will regulate and stop such practices.
I concede that some lawyers are overzealous in the pursuit of a defendant, and some juries act out of malice or revenge instead of justice, but such cases are the exception not the rule. In fact, most outrageous trial court judgments you have read about were quietly reversed on appeal. The system usually works, and works well.
The so-called abusive tactics used by lawyers, such as class actions, punitive damages, and damages for mental anguish and pain and suffering, are often necessary to make sure that companies do not find it economically beneficial to continue an undesirable practice, simply including the occasional lawsuit as a cost of doing business.
Lawyer bashing costs us all. The consequence of focusing on lawyers instead of issues, and placing blame on one party to a system that we all need, is to deny us the meaningful debate that is necessary to elect competent public officials. More importantly, lawyer bashing often results in the deterioration of rights so many of us often need. Next time a politician starts criticizing trial lawyers, ask what is proposed as an alternative.
Alderman is a professor and Dwight Olds Chair in Law at the University of Houston Law Center.