Saturday, February 01, 2003
Apparently, "trial lawyer" is a dirty word these days. An example is this piece I pulled out of a Google search, discussing John Edwards' prez campaign. I don't know if Edwards is the right guy to be president, but he has committed himself, as a trial lawyer and as a senator to representing the interests of the public. If that's a bad thing, and it makes Edwards a bad man, then I guess I am, too. Even though I think I'm pretty nice....
It will come as no shock to anyone who's paying attention here that I'm no fan of our president. Considering a cornerstone of his tenure as Texas governor and his presidential campaign was an effort essentially to put trial lawyers like me out of business, you can't blame me, can you? And of course, he's now doing it on a national level. Apparently, he's waited for the furor over corporate scandals to die down and for a Republican majority in both houses of Congress to push on tort limitations.
Well, right off the bat, we come to what may be the biggest push in years by the doctors and the insurance industry to limit your right to recover damages against those who cause you injury through negligence. The New York Times reports on this effort, which repeats itself every few years, in what so far has been an unsuccessful effort to increase insurance company profits:
What's interesting here is that insurance industry reps are actually admitting that "higher average malpractice claims, lower interest rates and exhausted reserves led the companies in his association to report losses of 10 cents for every $1 collected in premiums." Based on personal experience, as well as knowing lawyers in the business, as it were, I just don't buy the argument that average malpractice jury awards are going up. I also don't believe -- and the insurance industry will admit this if pressed -- that premiums will drop if the proposed tort limitations are enacted. I read somewhere -- and I'll try to find a link -- that one industry rep said something on the order of "we have never saidthat tort limitations will cause rates to go down. We just think it's the right thing to do." [paraphrase] Yeah. Right. I got a bridge to sell you in New York, too. Cheap!
The Times again has written that "Republican leaders attribute the increase in malpractice premiums almost exclusively to what Mr. Bush recently described in a speech in Pennsylvania as frivolous suits and "lousy" juries." I frankly don't know many lawyers who would risk potentially $100,000 in case expenses and as long as five years of their time for a "frivolous" lawsuit. I would estimate that at least 90% of the malpractice lawsuits tried in court are excellent cases. And that only covers the cases that actually went to trial. The really heinous cases of medical neglect usually are settled under a confidentiality agreement, so that the public generally doesn't even know the case is over, much less how much the insurance company paid to get rid of the case. Even I have had to settle cases under confidentiality, because shrouding the resolution of the case is a non-negotiable item with the defense, usually, and ultimately, if the offer is sufficient to recommend to the client, then it is in their interest to get the compensation while having to keep quiet as to amount.
The Democrats are trying to counter the propaganda flood with their own campaign to reform the insurance industry. The piece correctly points out that "Most of the legislative proposals being bandied about seem likely to reduce health care accountability without lowering malpractice premiums," and the lack of federal regulation of the insurance industry lets insurers "collude to set rates, resulting in higher premiums than true competition would achieve — and because of the exemption, enforcement officials cannot investigate any such collusion." Yep. They have never been able to police themselves, and the various state insurance commissions are generally ineffective. Not surprising, considering that former insurance industry executives always seem to get appointed to the state insurance commissions.
Lawmakers could do more to reduce premiums by improving the structure of the insurance marketplace, said Frank A. Sloan, an economics professor at Duke University who specializes in health policy and management. Medical malpractice "is the most cyclical health policy there is," Professor Sloan said, adding, "There are periods of time when premiums stop going up, and then nobody's interested, then again we get a crisis and everybody says juries are terrible."
What's interesting here is that insurance industry reps are actually admitting that "higher average malpractice claims, lower interest rates and exhausted reserves led the companies in his association to report losses of 10 cents for every $1 collected in premiums." Based on personal experience, as well as knowing lawyers in the business, as it were, I just don't buy the argument that average malpractice jury awards are going up. I also don't believe -- and the insurance industry will admit this if pressed -- that premiums will drop if the proposed tort limitations are enacted. I read somewhere -- and I'll try to find a link -- that one industry rep said something on the order of "we have never saidthat tort limitations will cause rates to go down. We just think it's the right thing to do." [paraphrase] Yeah. Right. I got a bridge to sell you in New York, too. Cheap!
The Times again has written that "Republican leaders attribute the increase in malpractice premiums almost exclusively to what Mr. Bush recently described in a speech in Pennsylvania as frivolous suits and "lousy" juries." I frankly don't know many lawyers who would risk potentially $100,000 in case expenses and as long as five years of their time for a "frivolous" lawsuit. I would estimate that at least 90% of the malpractice lawsuits tried in court are excellent cases. And that only covers the cases that actually went to trial. The really heinous cases of medical neglect usually are settled under a confidentiality agreement, so that the public generally doesn't even know the case is over, much less how much the insurance company paid to get rid of the case. Even I have had to settle cases under confidentiality, because shrouding the resolution of the case is a non-negotiable item with the defense, usually, and ultimately, if the offer is sufficient to recommend to the client, then it is in their interest to get the compensation while having to keep quiet as to amount.
The Democrats are trying to counter the propaganda flood with their own campaign to reform the insurance industry. The piece correctly points out that "Most of the legislative proposals being bandied about seem likely to reduce health care accountability without lowering malpractice premiums," and the lack of federal regulation of the insurance industry lets insurers "collude to set rates, resulting in higher premiums than true competition would achieve — and because of the exemption, enforcement officials cannot investigate any such collusion." Yep. They have never been able to police themselves, and the various state insurance commissions are generally ineffective. Not surprising, considering that former insurance industry executives always seem to get appointed to the state insurance commissions.
Well, I have now entered the world of blogging, which appears to me to be the coming thing for news and opinion dissemination. My approach will be to post links to content in areas of interest to trial lawyers and those who may be represented by trial lawyers, meaning just about everybody.
By way of definition, a "trial lawyer" is an attorney who primarily represents plaintiffs, in claims or lawsuits against defendants officially, but in fact against the insurance companies who hire counsel to represent defendants, and who call the shots during the claim or the lawsuit. I have been a trial lawyer since 1986, and have practiced law [by the way, why is it that we all still "practice?" Haven't we gotten good enough at this yet to actually do it?] in Washington, D.C., Maryland, and for the last 10 and a half years, in Knoxville, Tennessee. I am unabashedly pro-plaintiff, given the number of times I have personally seen how the insurance industry handles automobile accident or worker's compensation claims. I have, in fact, given some idle thought at times through the years to doing insurance defense work [representing defendants/insurance companies], but simply was never able to face the concept that I would have to stick it to some poor, undeserving claimant/plaintiff, solely because that would be my job. So, a plaintiff's lawyer I am, and will stay.
Actually, I always say [facetiously?] that lawyering is just my day job. I am also a musician and drummer for the last 28 years [note: obtain wheelchair due to extreme old age], and have been playing for almost two years with a mostly-lawyers band, called The Verdicts. We do rock and soul music, and have a lot of fun with it. Irony number one is that most of the lawyers in the band are insurance defense lawyers. As is often the case, the attorneys I deal with regularly are not on the plaintiffs' side; they are the defense attorneys I litigate against. I call many of them friends, and some of them very good friends. I do sometimes wonder how some of them sleep at night, though....
During the course of this blog, if it thrives, I will try to present the viewpoint of the plaintiff's trial lawyer, while, hopefully, debunking the horrible stereotype that has descended upon those who do what I do. I saw a need for a forum of this type for a couple of reasons.
First, plaintiff's lawyers are regularly portrayed in the media, in TV and movies, and even in commercials, as greedy, shark-like ambulance chasers, who have no regard for ethics or for the best interests of their clients. Classic joke in this regard: What do you call 30 lawyers at the bottom of the ocean? A good start. This image that has been foisted on the public is contrasted with the insurance defense or big firm corporate lawyer, who is always presented as upright, moral, and the "good guy." Irony number two is that it is the plaintiff's lawyer who is trying to help the little guy, the regular Joe on the street, while it is, in fact, the defense lawyer whose job -- by its nature -- is to minimize or eliminate any recovery to that regular person, regardless of who's entitled to what.
A second reason for trying this blog is that there is simply too much propaganda [a term I use quite deliberately] out there denigrating the plaintiff's bar. If, through this blog, I can turn readers on to what we really do, and what kind of people that we are in general, then I can call the effort a success.
A third reason to do the blog will be some shameless self-promoting of my own services and those of my firm. So, if anybody actually reads this, and sees links to my firm's web site or hears me making noise about something I did, please excuse me in advance.
Anyway, so much for introductions. Let's see if we can find some nifty links for all you readers out there chomping at the bit.
By way of definition, a "trial lawyer" is an attorney who primarily represents plaintiffs, in claims or lawsuits against defendants officially, but in fact against the insurance companies who hire counsel to represent defendants, and who call the shots during the claim or the lawsuit. I have been a trial lawyer since 1986, and have practiced law [by the way, why is it that we all still "practice?" Haven't we gotten good enough at this yet to actually do it?] in Washington, D.C., Maryland, and for the last 10 and a half years, in Knoxville, Tennessee. I am unabashedly pro-plaintiff, given the number of times I have personally seen how the insurance industry handles automobile accident or worker's compensation claims. I have, in fact, given some idle thought at times through the years to doing insurance defense work [representing defendants/insurance companies], but simply was never able to face the concept that I would have to stick it to some poor, undeserving claimant/plaintiff, solely because that would be my job. So, a plaintiff's lawyer I am, and will stay.
Actually, I always say [facetiously?] that lawyering is just my day job. I am also a musician and drummer for the last 28 years [note: obtain wheelchair due to extreme old age], and have been playing for almost two years with a mostly-lawyers band, called The Verdicts. We do rock and soul music, and have a lot of fun with it. Irony number one is that most of the lawyers in the band are insurance defense lawyers. As is often the case, the attorneys I deal with regularly are not on the plaintiffs' side; they are the defense attorneys I litigate against. I call many of them friends, and some of them very good friends. I do sometimes wonder how some of them sleep at night, though....
During the course of this blog, if it thrives, I will try to present the viewpoint of the plaintiff's trial lawyer, while, hopefully, debunking the horrible stereotype that has descended upon those who do what I do. I saw a need for a forum of this type for a couple of reasons.
First, plaintiff's lawyers are regularly portrayed in the media, in TV and movies, and even in commercials, as greedy, shark-like ambulance chasers, who have no regard for ethics or for the best interests of their clients. Classic joke in this regard: What do you call 30 lawyers at the bottom of the ocean? A good start. This image that has been foisted on the public is contrasted with the insurance defense or big firm corporate lawyer, who is always presented as upright, moral, and the "good guy." Irony number two is that it is the plaintiff's lawyer who is trying to help the little guy, the regular Joe on the street, while it is, in fact, the defense lawyer whose job -- by its nature -- is to minimize or eliminate any recovery to that regular person, regardless of who's entitled to what.
A second reason for trying this blog is that there is simply too much propaganda [a term I use quite deliberately] out there denigrating the plaintiff's bar. If, through this blog, I can turn readers on to what we really do, and what kind of people that we are in general, then I can call the effort a success.
A third reason to do the blog will be some shameless self-promoting of my own services and those of my firm. So, if anybody actually reads this, and sees links to my firm's web site or hears me making noise about something I did, please excuse me in advance.
Anyway, so much for introductions. Let's see if we can find some nifty links for all you readers out there chomping at the bit.
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