Friday, June 6, 2008

“Mama don’t let your little boys grow up to be cowboys”; Mama please let your little boys (and girls) grow up to be trial attorneys.

There is a song that goes something like this, "Mama don’t let your little boys grow up to be cowboys"; but someone should write a sequel, "Mama please let your little boys (and girls) grow up to be trial attorneys."

In a two-inch article on page 5 of my local newspaper there was a report that several homeless people in Fresno (California) who claimed their belongings were wrongfully seized reached a $2.3 million settlement with the city and state. The "aggrieved" victims will receive $1.4 million and the attorney gets $850,000, not bad for a little boy who grew up to be a trial attorney.
This report inspired me to look into the matter of attorney fees; and it was shocking, but not surprising, what I found.

First of all, an aspiring trial attorney can by a book, "Attorney Fee Awards" for $496.00 (free shipping included) "which is an easy to read book that any attorney can use in any practice area." Here are some of the benefits that the Attorney Fee Awards book gives to prospective trial lawyers:

"Alerts you to the many opportunities today to request an award of attorney fees -- despite the law they told you in law school."

"Tells you The Top Four Elements of Good Time Records -- which you need to know if you want time records that clients, courts, and juries rush to pay, and leave adversaries unable to dispute your request as excessive."

"Shows you how on the defense you can attack time records, and make judges distrustful of your opponent's request."

"Provides defendants with traps to lay in settlement negotiations (unless the plaintiff's counsel has read this handbook or is a veteran fee award litigator)."

"Provides plaintiffs with fee award leverage in settlement."

"Warns you of potential pitfalls in presenting an award for fees."

"Gives you forms for deposing the adversary's expert witness on fees, and for doing the direct examination of your own fee expert at deposition or trial."

It seems many attorneys must have purchased these instructions for how to make yourself rich at the expense of your injured clients and the poor tax payers who support local and state governments.

Starting small, by trial attorney standards, consider a civil rights action where a plaintiff claimed "police framed him" in the city of Harvey (Illinois), the jury verdict awarded him $25,000 in compensatory damages and $250,000 in punitive damages, the trial judge awarded more than $500,000 in attorney’s fees, twice the amount awarded to the alleged "victim."

In another case, the ACLU and People for the American Way requested and received a total of $488,601.10 in attorney fees and costs in their suit against the Loudoun County (Virginia) public library for using software that filters out Internet pornography. Judge Binkema ruled against the library, on motions for summary judgment, without a trial. "It is not at all outside the range of normal legal fees," said Ann Beeson, of the ACLU. "It is fairly standard."

This award is outrageous enough, but if you consider that the ACLU uses paid staff attorneys, not outside counsel in their law suits, it is a fraud on the public in general and, more specifically the tax payers involved, of immense proportions.

As an aside, this case is a prime example of how the ACLU uses the courts to intimidate defendants into settlements without appealing court verdicts. They initially sued the both the library, and the individual board members who voted for the policy. This would have left these people personally liable for the attorneys’ fees payment unless the case was settled.

Without doubt the most heinous examples of trial attorney excesses are in the area of class action law suits. There are advantages of class action lawsuits because they aggregate a large number of individualized claims into one representational lawsuit. In some cases this is an efficient way to deal with legitimate claims of injured parties but it can also be the pot of gold at the end of the rainbow for trial attorneys.

There are several criticisms of class action lawsuits. Class members often receive little or no benefit from class actions. Examples cited for this include large fees for the attorneys, while leaving class members with coupons or other awards of little or no value; unjustified awards are made to certain plaintiffs at the expense of other class members; and confusing notices are published that prevent class members from being able to fully understand and effectively exercise their rights.

For example, in the United States, class lawsuits sometimes bind all class members with a low settlement. These "coupon settlements" (which usually allow the plaintiffs to receive minimal benefit such as a small check or a coupon for future services or products with the defendant company) are a way for a defendant to forestall major liability by precluding a large number of people from litigating their claims separately, to recover reasonable compensation for the damages. Although "injured parties" in a class action law suits often receive little or no compensation, trial lawyers win the lottery.

Consider also the tobacco class action suits filed against the tobacco industry for failing to warn or prevent smokers from getting ill, usually from cancer. Although there is hardly anyone in the world not aware of smokers’ perils, and all who can read can see from warnings on cigarette packages, class action law suits against tobacco companies were a windfall for lawyers and the smokers on the whole received virtually nothing directly.

All together nation wide tobacco settlements required tobacco companies to pay $206 billion to 46 states (some estimates are $246 billion) but the total over 25 years is $346 billion * (that’s billion with a "b"); the smokers won’t get this money, it goes to the states to implement various education campaigns but generally the money goes into government coffers to allow state governments to give away even more money rather then reduce budgets or taxes.

After the tobacco cases were concluded, a panel of mediators in Washington voted 2-1 to award $ 8 billion in fees to attorneys who filed lawsuits against tobacco companies in Florida, Texas and Mississippi. Florida attorneys received $ 3.4 billion, Texas attorneys received $ 3.3 billion and Mississippi attorneys received $ 1.45 billion. In what is the understatement of the last and current centuries, attorneys involved in the case said "It is the largest award for legal fees in history."

Of course the attorneys downplayed the number of zeroes that appeared on their paychecks. ''I had a nice shack in Palm Beach before this happened,'' said West Palm Beach's Bob Montgomery, who lives in an oceanfront mansion and drives a Rolls-Royce, after stepping off the golf course, ''It's not going to change my lifestyle at all.''

On the other hand, putting the attorney fee award somewhat into perspective, ''Nobody has taken in this much loot since Hannibal sacked Rome,'' said Bill Herrle, Florida Director of the National Federation of Independent Businesses.

Trial attorneys in California involved with the tobacco cases also benefited well for their "public service". The group of lawyers involved in California cases received $1.3 billion in court awarded fees.

Tobacco companies got off lightly in a second hand smoke case, but once again trial lawyers didn’t do badly. In the recent flight attendants' second hand smoke lawsuit, the tobacco industry agreed to pay $300 million to a research foundation -- not the workers -- and $49 million to the lawyers.

Not surprisingly, the attorney fee issue splits politicos along partisan lines. Many of the lawyers involved in the lawsuits against the tobacco industry were well-known large contributors to the Democratic Party. Public records show lawyers from 13 firms involved with tobacco cases made over $3 million in political contributions with most of that going to Democratic Party committees or candidates.

* Base annual payments -- 25-year total face value is $358.5 billion (figures are subject to inflation protection and to volume adjustments)

1 comment:

S> said...

Im curious where you are from :) I have added to another post of yours, and I love how informative you are. Have you looked into California lately, here recently a trial lawyer was sued for giving back more money than he should have to people he was representing. The lawyer that informed me of this said it was perfectly ok for another lawyer to pay another lawyer a referral fee, but they could not show favorism or patriotism to those whom lined their pockets. Go figure.