Economic Motives of Plaintiffs' Lawyers

Last month we explored the economic motives of defense attorneys. This month we will discuss the economic motives of plaintiffs’ attorneys. Both defense attorneys and plaintiffs’ attorneys must operate their offices as a business, if they are to be successful. They are both motivated to earn a living practicing law. There the similarity ends. Defense lawyers serve corporate America and liability insurance companies, in large measure. They must practice law in a way that is pleasing to corporate America and insurance companies if they are to succeed.

Plaintiffs’ lawyers must attract members of the general public who have a legal claim. Hence, the obnoxious advertising. Big bucks. Tigers. Prize fighters. Cowboys. Fighting for you! Before the 1960’s, Bar Associations generally did not permit that kind of advertising. First the Supreme Court decides that fee schedules amounted to price-fixing, in violation of anti-trust laws. Then it decided that restrictions on advertising were a restraint on trade. Finally it concluded that the right of lawyers to advertise was imbedded in the First Amendment to the Constitution: commercial free speech. When one backs up and looks at the situation, none of that makes good sense, given the nature of law and the role of lawyers. Law is, among other things, the instrument of government. Lawyers serve a quasi-governmental function. They sell information about how to interpret and apply law. Why shouldn’t the practice be regulated? But that should be the topic of a whole column (or book) and is suggested here only to give insight into the economic motives of plaintiffs’ lawyers.

By the way, defense lawyers don’t advertise much. The defense side was organized and practicing its methods of business recruitment long before lawyer advertising emerged. In fact, they at least had to give lip service in opposition to the advertising, on behalf of their clientele. Advertising is a plaintiffs’ bar thing. The basic problem is how to get the members of the general public who have a legitimate legal claim in touch with an attorney capable of adequately presenting it. Maybe advertising is better than ambulance chasing. There are no real good solutions. Corporate America and insurance companies are not running over themselves to pay adequate compensation for legitimate claims.

But the efforts to communicate with the public about the provision of adequate legal representation for claims puts the plaintiffs’ bar in the public eye, and makes them vulnerable politically. Something for nothing! Jackpot justice! Runaway verdicts. The political parties become involved. Republicans in Alabama are conservative; Democrats are liberal. Unfortunately, political motivations in Alabama continue to intertwine with race. In earlier columns, I systematically described the effect of racial demographics on the likely outcomes of litigation. Unfortunately, during the fairly recent years during which Alabama was sometimes referred to as “tort hell,” there was probably truth in some of the allegations of jackpot justice and runaway verdicts.

So we put caps on punitive damages. And we educated the public. Jurors in conservative counties became more conservative. Jurors in liberal counties are not less liberal, but a conservative appellate system holds the lid on the pot. But corporate America has not become more honest. Our caps on punitive damages are a small fraction of the annual salary of corporate executives and high ranking insurance company officers.

Today, plaintiffs’ lawyers must carefully consider whether they can afford to take on a case. They seek out the cases that can be filed in a favorable venue. They must find enough business to stay afloat. They must usually await the long delays of litigation, all the while taking the risk of no recovery at all.

I am not suggesting that the economic motives of plaintiffs’ attorneys are somehow purer than those of defense attorneys. What I am suggesting is that economic motives of lawyers on both sides are real, and have a strong impact on what problems Courts will have an opportunity to resolve, and whether the system will function efficiently.

We desperately need a system that will deal with every case efficiently and bring a fair result. The attorneys on both sides need to realize that they are entrusted with the sacred fabric of the law, that it is their responsibility to guide cases through the system with just results. There should never be jackpot justice, something for nothing results; and there must be a legal means to attack the most egregious conduct of illegal corporate practices. Lawyers on both sides should be adequately compensated for accomplishing these results.

Before leaving the general topic of the economic motives that propel the legal system, I will discuss the highly anomalous role of liability insurance next month.