Friday, October 01, 2010
This photo is from a rebreather dive Glenn Reynolds and I did in 2006, off Cobalt Coast in Grand Cayman. Glenn's wrote and videoed about it in Popular Mechanics. Guess who the photographer/videographer was? The intrepid diver is Nat Robb of InDepth Watersports in Grand Cayman. To learn how to do it yourself, see this YouTube video.
Gotta get that record....
As a Tennessee lawyer, I can say that there are plenty of lawyers who would have taken that Florida resident's case, if it had been in Tennessee. And the premise of the article -- that hourly fees of $150 and greater is beyond the reach of most people -- doesn't even apply to many civil legal actions, including worker's compensation. In many types of civil cases it is just flat wrong to suggest that lower income people (or anyone else, for that matter) can't hire a lawyer unless they've got big bucks for an up front retainer. What I'm talking about is contingent fees.
As opposed to many lawyers, most trial lawyers don't charge a client up front for many types of legal matters. In personal injury, worker's compensation and Social Security Disability cases, we here at Slovis, Rutherford & Weinstein essentially never charge cash on the barrel head, nor do we ask for any kind of expense or cost deposit, if the client can't afford it. Thus, in the great majority of such cases, a client will get the legal services they need, and will pay an attorney's fee and expense reimbursement only if the lawyer gets a recovery for the client.
Now, sometimes a lawyer who doesn't want to be mean and tell a potential client there's no case will quote a high fee as a "nice" way of sending the client off to another lawyer. I don't favor that practice, but I acknowledge that it has happened and does happen, from time to time.
It is also true that there are types of civil legal issues where lawyers must charge a retainer and/or hourly fee if they are to be paid at all. Besides legal aid, there are many lawyers that do cases pro bono, or free, as a way of giving back. There are also a lot of young, hungry lawyers who may take the case for a discounted fee. The persistent person is going to find a lawyer.
Mr. Ribstein proposes "the development of a legal information market that can serve the millions of people who now have little recourse but self-help. Such a market would give the middle and lower-middle class ready access to paralegals trained to handle lower-level cases and expanded legal offerings of legal software and forms." Mr. Ribstein, an academic and law professor whose biography reflects a background in "corporate, securities and partnership law, constitutional law, bankruptcy, film, the internet, family law, professional ethics and licensing, uniform laws, choice of law, and jurisdictional competition," badly underestimates the difficulty and complexity of non-lawyers trying to be effective (i.e., successful) representing themselves in court and most legal matters. He also gives entirely too much credit to paralegals who have very uneven levels of education and experience, as well as "legal software and forms" that often do not even apply in a particular jurisdiction. Reliance on such resources can lead to disaster -- and more legal expense -- for the client.
As an example, I had a client a couple of years ago who downloaded and used for an elderly and infirm relative a power of attorney form he found on the Internet. Unfortunately, it was not a durable power of attorney. That means that if the elderly subject of the POA is at some later time found to be not competent, then the power of attorney, at that time, becomes of no force. Which is, of course, exactly what happened to that client. Property conveyances to the client under the POA were disputed and voided. Two years later, he has incurred thousands of dollars in legal fees to try to obtain the property he thought he already owned. All of his troubles could have been avoided had he used a lawyer to prepare the power of attorney. I usually charge under $100 for one. You do the math.
The reason lawyers have to be trained, pass the bar exam, and be admitted to practice is that our society believes that legal representatives ought to be, well, qualified. Licensing laws are not in place to protect lawyers' jobs; they are there to protect the public.
I have no problem whatsoever in people having access to legal forms and information if they want to represent themselves. The strong likelihood is that they will not be successful in any litigation where they have to face off against an trained, experienced lawyer. But if they want to take that chance with eyes open, have at it.
I do have a big problem with untrained, un-experienced lay people representing litigants, however. No reasonable client wants to place his faith in a legal "representative" who is unqualified to represent him.
Wednesday, September 29, 2010
Now, the Court has clarified how far this bar goes. Justice Sharon Lee said this:
We do not find sections 29-26-117 and 20-9-304 to be in conflict. Interpreted in accordance with the clear and unambiguous language of each section, the statutory scheme allows a plaintiff to argue or suggest a monetary value to be placed on non-economic damages such as pain and suffering and to make an argument concerning the ultimate monetary worth of his or her action, but precludes either party from disclosing the amount of the ad damnum clause in the plaintiff's complaint.
I've never quite understood why, of all the different kinds of lawsuits, it's only in malpractice cases that we cannot tell the jury what we are asking for. I've always assumed that the strength of the medical lobby is behind this law, which sets apart doctors and hospitals from other kinds of potential wrongdoers.
In any event, this case, for all intents and purposes, allows plaintiffs to tell the jury what they think the case is worth -- just not the specific sum of what was asked for in the complaint. I presume that we can tell the jury what we think the value of the case is even if it's the same as what's in the complaint, as long as we don't tell the jury that the amounts are the same.
It's interesting that the Court seems to validate putting the amount sought in the complaint, which we have previously thought was not allowed. This case is a victory for injured victims of medical negligence.
Here's the full opinion from the Court.