In the 1980’s Stuart M. Speiser wrote a book called Lawsuit which had a profound effect on me as a young lawyer. A member of Mr. Speiser’s law firm reviewed the book with the following:
Like Shakespeare’s man, a lawsuit has seven ages, pleadings, pretrial procedures, pre-trial conferences, trial, post-trial procedures, final judgment, and appeal.’
THE SEVEN AGES of a lawsuit are portrayed in new light through the lively prose of Mr. Speiser, as he tells the backstage stories in seven major tort cases in which he or members of his firm have participated during his distinguished career.’ More than just chronicled events observable by anyone, the author’s stories reveal some of the thinking processes which turn the seven ages of a lawsuit into working tools in the resolution of controversies. More than just another collection of “stories-about-cases-the author-has-won,” the book is a discourse on the author’s thesis that the American “trinity of torts” (jury trial, contingent fees, and entrepreneur lawyers) provides the best method of redressing the grievances of injured tort victims that the world’s legal systems have to offer.
Prior to the post-war era of the 1960’s reported cases are rife with the attempts of lawyers, for their, usually impoverished clients, to take on the big business interests, such as railroads, auto manufacturers, chemical manufacturers and the like, only to lose or in the rare event, to win, but to win such little compensation as to be a Pyrrhic victory in the end.
There is a despondency that runs through the cases as one reads them such as you can almost predict the outcome just by reading who sued whom. There is a “David and Goliath” aura to the cases, as one reads the decisions, except this time you know from the beginning that David has no stone or sling and even if he did Goliath is out of his reach with too many troops behind him.
As Mr. Speiser’s book depicts, all that began to change with the emergence of the “entrepreneur lawyer.” A definition is in order:
An “entrepreneur lawyer” is not only one who takes a case on a contingent fee basis (a commission, i.e., no win—no pay) but also one who has the financial ability and fortitude to spend his own money in pursuit of justice for his client who, in many cases, cannot even pay the filing fee to the court.
Upon the emergence of the entrepreneur lawyer, in wrongful death cases, automobile accidents, railroad crossing accidents, construction accident, car and truck or 18 wheeler accidents, pharmaceutical cases (bad or harmful drug cases) and even down to work injuries where workers’ compensation insurance was the only remedy, things began to change.
Changes also occurred in the selection of juries. At one time in Mississippi, jurors were selected to hear cases by the county boards of supervisors, rather than selected at random by the voter rolls. It was little wonder that the lawyer for the railroad who was also the attorney for the county board of supervisor attorney never lost a case. That is, the railroad never lost a case.
Many are familiar now with the revolution that occurred in tort law and cases over the years following Mr. Speiser’s book. Entrepreneur lawyers took on all the big business interests and for the first time in a century the little guy had a chance in court, thanks to the increasing sophistication of the lawyer for the plaintiff by education and judicious use of experts and the financial backing of the lawyer himself.
Of course, when the “entrepreneur lawyer” lost, that is when his client lost, the lawyer lost as well. No pay, and no recovery of the thousands of dollars he had advanced to finance the case. Such risks to the lawyer weeded out all but the cases that had the best chance of winning.
But the success of the entrepreneur lawyer would not last; the “powers that be” could not tolerate justice, (and, admittedly, sometimes “excessive” justice) and the “entrepreneur lawyer” became the “greedy trial lawyer” – the source of society’s ills in rising insurance rates for automobiles, doctor’s malpractice premiums and liability coverage for all types of industries.
So…in steps the Chamber of Commerce and other organization such as “Prevent Lawsuit Abuse” with sophisticated propaganda campaigns directed not only at those who would sit on a jury (but not buy) with massive amounts of money to put the “right” judges in place on the bench. Oh, yeah, and tort reform—referred to by most plaintiffs’ attorneys as “tort deform.” And the battle was won.
But it was one to be lost by the little guy and his “entrepreneur lawyer” from the beginning, who could not match the sheer volume of money brought to bear in propaganda ads, “juror education”, financing of judge’s campaigns and filling the coffers of sympathetic legislators to pass “tort reform.”
The hay-day of the entrepreneur lawyer was about to end, and, to a large extent it has ended. Only very large plaintiffs’ firms with deep pockets (mostly from mass tort actions, which are becoming more restricted every year) can afford to take on the really big guys and, when they do, it must be for really big money.
Those injured through the negligence of others in automobile accidents, or truck accidents, or who sustain on the job injuries, whose damages do not justify the investment of thousands or tens of thousands of dollars must get what they can.
It used to be that, years ago, an insurance company would settle a car or truck accident case for up to, say five (5) times what the client’s actual damages were (actual damages being medical bills and lost wages, generally).
These days it’s hard to find an insurance adjuster who will offer just twice what those actual damages amount to. And why is that, you may ask? Because the insurance companies know that the investment (or cost) of doing the lawsuit, which the client cannot afford, would have to be borne by their lawyer and it’s a risk/reward evaluation.
One cannot put $5,000 in expenses into a $10,000 case because after paying the lawyer (if the case is won), the lawyer is paid a third and repaid his investment (about a total of $8,000) leaving only $2,000 for the client.
So what is done?
If the lawyer can settle the case say for $6,000, be paid $2,000 (1/3rd) and have only invested $100 (for copies of medical bills and the like) and the client gets $3,500. So the client comes out better. And it’s cheaper for the insurance company than paying its lawyer and taking the chance of having to pay a $10,000 verdict.
Of course, in addition, the lawyer has to deal with the medical providers who charged the client $5,000 and compromise with them as much as possible with the threat of bankruptcy of the client being the main threat.
So, who really pays now?
Well, of course, we all do. Someone has to make up the cost of the medical bills that went unpaid or compromised. Should the client get on social security disability if not then, but much sooner than expected, we all pay in increased social security taxes. So the burden to society because of the “tort reform” and the like is being shifted from the responsible parties to society in general. We all pay the real cost of the lawsuit.
I once predicted that solo practitioners, that is, the solo “entrepreneur lawyer” would be extinct by 2000. I missed my prediction somewhat. I am still here as are many other solo or small firm lawyers, but we are a dying breed. Some few of us are lucky enough to have the means to still take on the big boys even in the face of tort reform and insurance propaganda (which, by the way, did not lower doctors’ malpractice premiums or health insurance premiums or car/auto/truck premiums).
The reality is that if you’re unlucky enough to die, or become a quadriplegic or suffer a major amputation, then the large plaintiffs’ firms will gladly take your case, as will a solo practitioner or small firm lawyer with the finances to handle it.
But if you fall into that category of persons who suffer a back injury that does not disable you for life, if you suffer fractured legs and arms, and the like, your case is not worth the big firms’ time and investment and you must turn to the remaining solo or small firm lawyers, like me, who can still take your case, invest the money it takes to do it and win enough for some measure of financial security for you and your family.
David Butts is a solo practitioner whose 40 years of experience bridges a multitude of personal injury cases, from car, automobile, truck and train crashes and collisions and wrecks to bridge collapses, premises liability cases and workers’ compensation injuries. He also has extensive experience in insurance bad faith and other business litigation. His practice covers the entirety of Mississippi and he has practiced in Tennessee, Alabama, Louisana, Georgia and Alabama.