As someone who will soon have to purchase malpractice insurance, the most recent ads for the Becker Law Office (our local Jimmy the Grunt) give me pause.
In the ads, the spokesman says that if you’ve been given a diagnosis of cancer, and you feel that the cancer could have been detected sooner and the outcome could have been better as a result, to call them, and they’ll sue some doctor ass for you. As he speaks, a list of common cancers scrolls by next to him. (He says, as an afterthought near the end, that misdiagnosis is not always malpractice. Gee, thanks.)
Ovarian cancer is on the list, which bugs me, since ovarian cancer is almost never detected early. (IIRC, it most commonly presents as stage IIIc, with stage IV being the worst). Why? Because there are no obvious symptoms, and there is no good screening test. However, there is an e-mail going around telling women to INSIST that their doctor check their CA-125–which we would do, if it weren’t a really shitty screening test. Still, I foresee some doc being taken to court for failing to perform this test.
Colon cancer is on there, too, and I foresee Katie Kouric’s Kolonoscopy Krusade biting us in the ass. I have a lot of respect for Katie, and I understand how her loss would make her want everyone to have a screening colonoscopy. However, a colonoscopy is a procedure with risks, and for a person under the age of 50 with no family history (as Katie was), the risks of the procedure outweigh any possible benefit. Hard to grasp, I know, but that’s why we’ve spent millions of dollars studying these things.
Then there’s the obvious–of COURSE your cancer would probably have had a better outcome had it been discovered earlier, and yes, it most likely could have been discovered earlier, if only by a few days. The studies and the evidence tell us how often to perform screening tests, but can I trust a jury to understand evidence-based medicine? Even if I never got sued myself, I can see my malpractice insurance rates skyrocketing as we speak.
I got into this game because we’re all (purportedly) on the same side, with a common goal–Make Patients Healthier. Someone who can’t do the job well shouldn’t be doing it, and those who make serious mistakes should be punished. Still, it bugs me that there are vultures watching me not just for mistakes, but for unfortunate circumstances that can be spun to look like mistakes. Can’t they do something productive?
My dad got wrongfully sued for malpractice. It sucked royally for all of us, 3 months of tension, Dad crying at times. I mean, come on! No one has more empathy for his patients than my dad. Then, after we won, the damn patient kept harassing him. Just couldn’t let it go. And what did dad do to deserve all this? Treated a totally screwed-up, suicidal loser with ECT, saving his god damn life. I don’t know what the technicality was that his shyster lawyers picked up on, but it was pointless. Like his family didn’t initial on page 3, line 42. Any non-shyster lawyer wouldn’t have looked at the case twice. Damn people.
I don’t understand this. Poor people engage lawyers in every jurisdiction which doesn’t have contigency fees. I know of a firm of union-friendly lawyers in Australia who do personal injuries work, and charge once the matter is concluded. If you lose, they take that into account in their final bill.
A firm I used to work for did a lot of defamation work. Defamation damages in Australia are notorious low. Fees were pitched accordingly.
And if you don’t like the rate being offered, you shop around. Competition drives down prices.
I don’t have a problem with lawyers working for contigency. I think it is a legitimate way of doing things and I don’t believe most lawyers abuse the system.
Nope, because if you win, the lawyers don’t get a percentage. They get the rate agreed upon, or if there is no agreement, the rate set by government regulation.
I can’t see the advantage in contigency fees, except that it makes lawyers a lot of money from settlements and judgments.
DOCTOR J – I have no comment on your legitimate complaint, except to say that shaking the trees for clients is obviously very common, but the gambling the lawyer you’re talking about is pretty high-stakes. He could easily end up with an office full of people who really don’t have cases but think they do, just because of his misleading add – and that’s exactly what he deserves.
DAVE STEWART –
Sure, but they don’t engage lawyers as frequently or have access to the the same caliber of lawyers as are available under a contingent-fee system. You might argue that the former is a benefit, but the latter is not.
This makes no sense to me. They “take it into account” if they lose? What does that mean? How much do they discount the bill if they tank the case? 10%? 25%? 50%? How is that a better system than agreeing up-front that the attorney will get a speficied percentage of any award secured? At least the contingent-fee arrangement gives the lawyer an obvious incentive to pursue the case zealously, since benefitting his client financially obviously also benefits him.
Again, I don’t understand this. Unless defamation awards (regardless of amount) are easier to secure than other types of awards, the amount of lawyer work going in to securing the award remains roughly the same as for any other type of civil case. Fees are not tied to the amount of award in the U.S. – unless you have a contingent-fee arrangement. If you don’t, the fees are not going to be “pitched low” because the likely recovery will be low; instead, you will be paying the attorney’s going hourly rate, which under these circumstances (low recovery) will be a heck of a lot more than what you would have paid him under a contingent fee.
The going prices for a lawyer in the U.S. range from US$ 75 (very low) to US$400. A person with a decent case and very little money can shop around until they drop; without the option of paying a lawyer on contingency, he or she will not be able to retain one for a sufficiently long time to secure a decent award. Period.
Especially if he works on a contingency basis. Apparently enough people on juries think enough of the cases he takes that he can afford to blanket the airwaves with ads.
In my former life my private practice ran about 60% plaintiff personal injury, 25% family law and 15% real estate/estates/whatever else needed doing.
As a plaintiff PI lawyer I weighed the cases that came in very carefully. It may seem that a lawyer can turn a sow’s ear into a silk purse, and I’m not going to say that folks with bad cases or no claim at all never win. However, a case with doubtful causation or other poor facts is as much of a clunker for the plaintiff’s counsel as it is for the defendant.
Lawyers who work on contingency have to front the costs for things like expert witnesses, reports, investigation, and so forth in order to prepare a case. Although most contingent-fee agreements specify that the client is responsible for reimbursing the lawyer’s costs regardless of the outcome, the fact remains that in a lot of cases these folks don’t have enough money to make chasing them worthwhile. Added to that, most lawyers that I know don’t have money trees in the back yard and have to make a judgment call as to whether the client and the case are worth the allocation of resources necessary to prepare a good case for trial.
Again, this isn’t to say that there aren’t any meritless cases that get settled for large amounts or put people through the wringer. But the vast majority of lawyers who don’t advertise between reruns of “Hogan’s Heroes” follow Elihu Root’s advice that “half of a good lawyer’s practice consists of telling his clients that they are damned fools and should stop.”
The widow of the guy who died when an overworked and speed-buzzed intern shot him full of the wrong drug is naturally going to have somebody chasing after the hospital, doctor, and everyone else connected to the death because the wrong was egregious and the problem is clear. What people like you don’t see is the ten folks that reputable lawyers turn away because their cases are specious at best and phony at worst. The idiots that saturate the airwaves with commercials usually end up seperating a lot of chaff from one or two kernels of wheat. It’s a ratio that they can live with, but for most attorneys it’s not the way they want to do business.
Let me suggest that contingency representation is a device to keep merit less litigation to a minimum. The lawyer who takes a bad case on a percentage of the recovery basis is probably not the brightest guy in the game. When representing a client on a contingent basis the lawyer wait to get his fee until the case is over and takes the chance that he will not have a fair return on his efforts. A loser of a case is the last thing you want to take on a contingency. An attorney of any integrity independently evaluates prospective law suits for merit, especially when he is expected to bear the risk of the outcome.
The more aggravating problem in my view is the expert prostitute who is willing, even eager, to go into a court room and testify that some other physician was not up to the accepted standard of expertise. That, of course is not to say that there is not an astounding amount of medical error out there, only that there is an alarming number of physicians who are willing to conclude that a bad result is the product of medical error on the slimmest of evidence. There is an awful lot of medical testimony, on both sides of the case, that is flaky.
Well, that’s true: I know a “technology lawyer” who has trouble shutting down his computer, so he just leaves it on. Judges struggle with concepts such as “deep-linking” for example.
On contigency fees, one at a time: Jodi
Instinctively I didn’t think that was true, because lawyers are frequently approached for advice in other jurisdictions. But thinking about it, this is true: it is possibly one of the reasons the United States is so comparatively litigious. But then, Canada also has contigency fees (so one of my clients told me) and it doesn’t have the same reputation of litigiousness.
I use the word “litigiousness” in a negative sense: suing for punitive damages on frivalous claims should not be part of the administration of justice, and contigency fees would make this more likely. Such claims are relatively rare in non-contigency jurisdictions.
You caught me out - I was being deliberately vague. In my limited experience with PI, most personal injuries cases settle prior to trial. those that go onto trial usually result in a victory for the plaintiff. But in rare cases, the plaintiff might lose. The firm I was referring to is composed of partners who have a lot of empathy for plaintiffs who lose, but also don’t want to poison the well - the unions who refer them work would get mightily annoyed if they started hounding the failed plaintiff for fees. So, yes, there is no certainty in a reduced fee if the plaintiff loses: but with this firm in particular, its likely.
Defamation is considered “labour-intensive” in respect of the low damages award. Again, most defamation actions settle (PI and defamation usually have insurers involved). The firms I know who paractice plaintiff defamation know that the client isn’t likely to get a large award, and it would be disaster if the fees paid were higher than the award. So, they write off a lot of their work-in-progress on defamation actions, and don’t charge the client for it. A lot of firms don’t practice in it because its difficult and damages awards are low, so they can’t justify their fees.
Don’t forget - in Australia, if a firm charges too high, the client can get the court to tax their fees to a lower and more reasonable level.
Its just not true: people do sue in non-contigency jurisdictions (most common law jursidictions - definitely England and Wales, Australia and its states, New Zealand and Hong Kong), and go onto trial. Maybe its because the average length of time to get to trial in my home jurisdiction is 9 months - maybe this is shorter than your jurisdiction. Insurers can drag their feet, but an interventionist federal jurisdiction system and state (Western Australia) jurisdiction with court sponsored mediation usually get things resolved with some expediency.
I’m a bit surprised by your fee quotes - I’m charged out at more than that, in HK (less in Australia)
Zappo
Thanks for your thoughts. You’ve been there on the ground in a contigency jurisdiction, and you’re in a much better position than me to know the truth of it, and what you’ve said makes sense.
I tend to think of this scenario: a client with a contigency fee arrangement with a lawyer, being close to trial. Something on discovery comes up that shoots a hole in the client’s case. The lawyer has virtually an equity stake in the case. How is he supposed to give impartial and unbiased advice to give up, when he has invested time and effort into the case? Its like champerty/ maintenance - but worse, because the champerter gives advice on whether to proceed or not.
Dave, that’s the kind of problem that law professors here in the States love to debate in professional ethics classes. Unfortunately, I don’t have a quick answer to give you.
I don’t know how the discovery process works in Australia, but in the US the process is designed to shake that sort of information loose at the earliest stages. In most cases, this involves a thorough review of things like medical records, accident reports, and so forth. Also, detailed interrogatories are usually sent out to the other party as the first step in gathering information. Analyzing this mountain of paper is labor-intensive but doing thorough discovery highlights the weaknesses and is valuable in pointing out danger flags in your client’s case.
Most lawyers I know are willing to write off a lot of time on early discovery if they’re working on a case they believe is meritorious. It’s through this process that they hope to find the weak spots and problems to prevent embarrassment and/or the kind of ethical connundrums you present. A lawyer whose discovery is sloppy and doesn’t pay attention to weak spots and danger signs IMO deserves what he gets if a case blows up in his or her face due to sloppy groundwork.
If something came up out of nowhere on the eve of trial despite good efforts to find problems with the case, that’s a different story. It could occupy an entire thread of its own so I won’t go down that path here.
You realize, of course, that the question of whether contingency fees foster litigiousness is a different question than whether they should be abolished. You have said both; I take issue only with the latter.
Again, IMO and IME contingent fees do not lead to the pressing of frivolous claims, except for very-low-value cases that might be settled for nuisance value (or less than the cost of defense). That is because the attorney doesn’t get paid unless the client wins, and the client will probably not win a frivolous case. Punitive damages are very difficult to secure, at least in my jurisdiction, but there is no question that a case where they might be awarded is a plaintiffs attorney’s dream – but that probably a case with some merit in any event, or punitives would not be alleged or awarded.
You still have not explained how a system where the plaintiff is dependent on the law firm’s largesse in reducing his or her fee in case of loss is in any respect better than an arrangement where the client knows up front what he or she will pay – which, in the case of a loss, is costs alone.
This still doesn’t make any sense. The firms “write off” their work for defamation clients? Why? Out of some sense of altruism? Why should the attorneys not be paid for the work they have done? Why should the client be dependent on the kindness of the attorney to avoid a huge bill? If the only way to pursue a meritorious defamation case is to depend on the willingness of your lawyer to eat his fee so you can keep the “low recovery,” it seems to me obvious that the pool of lawyers willing to take such cases will necessarily be very limited. (And, by the way, defamation is generally very difficult to prove in the U.S., requiring as it does the intent to defame, and, like most other intentional acts, it is not generally possible to insured against.)
Which doesn’t have anything to do with contingent fees. In many jurisdictions in the U.S., there are limits to the percentage a firm may recover under a contingent-fee arrangement, and here as well an inequitable arrangment may be challenged and may not be enforced.
It is true; the suits that are pressed in jurisdictions without contingent fees are brought by people who can pay a lawyer up-front, and right along. They obviously are not brought by people who cannot afford counsel, because without a contingent-fee arrangement, there is no way for such people to secure counsel. I never said that the abolishment of contingent fees would mean that no one would bring a case.
The length of time to trial doesn’t have anything to do with the amount of work necessary to bring the case to trial, which has more to do with the complexity of the case than the time to trial. It also doesn’t have anything to do with the validity or utility of contingent fees. Whether we go to trial next week or a year from now doesn’t affect the manner by which we are paid.
Discovery tends to take place after pleadings close, unless there is an order for pre-trial discovery.
You guys have depositions, too, but I don’t know when that takes place in the interlocutory process.
I was in a trial 3 years ago, where the plaintiff didn’t understand the significance of some documents, and so the plaintiff’s lawyers were totally in the dark - until the third day of trial, when their client was forced to concede in XXN that he had partaken in fraud. My point is that often (in my limited 5 years of experience) the other side’s case isn’t fully comprehensible until just before trial.
**Jodi **
The former is a reason for the latter.
You’ve got in-the ground experience in the jurisdiction, and I don’t, so I accept what you say.
Isn’t it the case, though, that insurers will sometimes pay a sum to simply get rid of a pestering case? Isn’t this more likely to occur if contigency fees are involved?
The situation of a plaintiff losing in PI rarely occurs. Clients (should) know the risks involved in commencing proceedings. My position was that the certainty of knowing the approximate costs in losing will be confined to the other side’s costs is off-set by the advantage of the client receiving independant advice from a lawyer without an equity stake in the case. Zappo says thats not ordinarily so.
Its not altruism, I’m sure - its the act of a member of a self-regulating professional body (as opposed to an entitiy which is purely a business) to ensure that someone with a claim gets representation at an affordable fee, and certainly not at a fee which exceeds the award.
I also tend to think that a lot of defamation lawyers drop their prices because they like the work and want to keep their hand in.
And, thinking out loud, and about the defamation lawyers I know, I think there might be a degree of altruism - defamation is an offensive civil tort, and while I don’t think acting “on the principle of the matter” is the main motivation, I think it is part of it.
I didn’t know that: I was looking for a difference between our respective jurisdictions which might explain why contigency fees are not permissible in my jurisdiction and are in yours. A very strict regime of taxation of costs as we get in Australia might explain this. But, you have that too.
That is not true. Obtaining money on account is, IMHO, a prudent practice but one not followed by the vast majority of firms in the non-contigency fee jurisdictions of Australia and Hong Kong.
But they do get counsel. And they pay their fees. Otherwise there would be no work for lawyers other than for those firms who act for big businesses.
I’ll see if I can find some stats on this from the Law Council of Australia or the Law Reform Commission or somewhere. There was a report by an international body on this, which prompted the introduction of interventionism of courts in my home jurisdiction. I’ll see if I can find it.
I was suggesting that because a case takes less time to get to trial, the less it will cost: it is therefore more affordable to people without contigency arrangements.
Time is a very relevant factor, given most lawyers charge out on a time basis. Complexity in a case involves more time - which lengthens the interlocutory process - which
costs more. But if the case is managed by the court, then the time taken will be less because the court will impose deadlines for discovery, exchange of witness statements etc. Time is more effectively managed, than in a long trial.
I am personally of the opinion that malpractice lawsuits, even the allegedly frivolous ones, are a GOOD thing, even a good thing for the medical profession as a whole. Let me give you a specific example.
A local doctor recently came under fire for a claim of malpractice, which he publicly dismissed as frivolous. The story was picked up in the local paper, and within a few months, the guy had EIGHTY THREE additional charges of malpractice. Turns out the guy was a major drug addict, was sleeping with a patient, performing unnecessary surgery, and performed a series of botched surgeries. My own mother did not know of this case, and she also had a botched surgery performed by Dr. Evil. She didn’t sue for malpractice, although I urged her to.
Now the punchline of the story is, after a mere year of suspension, the guy made a big song and dance in front of the medical board, claimed he fucked up because he did drugs, and now he’s clean and he’s a changed man. And the board gave him his license back!! But Dr. Evil will never practice medicine again, because he will never be able to get malpractice insurance.
The point of my story being, there are many many incompetent doctors, and the AMA does everything to suppress public knowledge of these cases, so it is a very good thing to take on basically EVERY doctor in EVERY malpractice case. The bad ones lose their licenses, the good ones defeat the frivolous cases.
Yeah but the road to getting a clean slate is stressful, and, bluntly, shit sticks. People will remember that a doctor was sued for malpractice before they will remember he was cleared.
Well Dave, where there’s smoke, there’s usually fire. But the public rarely hears about anything but the most egregious malpractice cases, it’s only the insurers who care. And if you win, you’re still in business.
I recall a conversation with my uncle, a general practitioner, who got sued over a fairly small accident. He admitted he made a mistake, and lamented that he was going to pay big for it. Then he shocked me by saying he’d been lucky thoughout his career, thinking back over all the times when he SHOULD have been sued for malpractice, but never was. I kinda got the impression that all doctors make mistakes from time to time, and malpractice cases are inevitable.