January 06, 2004

Trial lawyers accountable?

Teachers, businessmen, physicians, and police officers are made accountable for their actions by the threat of lawsuits, fines or job loss. So my question is simple: why haven't we created a system that holds lawyers accountable for bringing suits that lack merit? Malpractice trials find the defendant liable approximately 30% of the time. That means 70% of the time, the physician wins. As a physician, if I were to perform appendectomies and only 30% of my patients turned out to have a diseased appendix, I would lose my license! Yet if you achieve a similar result in private practice as a trial lawyer, you will probably be free to go on practicing with no penalty whatsoever.

It seems to me that the answer might be to create a system that simply asks the jury to decide whether a civil lawsuit in which the defendant was found innocent of wrongdoing should be deemed "frivolous". If it were found so, there would be penalties (i.e. fines, professional reprimand, etc...) for the attorneys that brought the actions. -- R. Desai, M.D., Dayton, Ohio

At present, most American courts do in principle provide remedies for frivolous litigation, but those remedies are purposely made hard to use and unrewarding except in the most egregious cases. (In 1993, at the behest of organized lawyerdom, Congress pulled the teeth from what had been a relatively successful sanctions device, Rule 11 of the Federal Rules of Civil Procedure). Aside from reinstating a stronger-than-ever Rule 11 in federal courts and its equivalent in state courts, we are intrigued by the idea of confiding to the jury, rather than judge, the call on whether or not a decided case was frivolous or without merit -- if only because it would force some of our friends in the plaintiff's bar to decide whether or not they believe their own rhetoric about trusting juries. -- ed.

Posted by Walter Olson at January 6, 2004 02:45 PM

My proposal is to adopt a "Loser's Lawyer Pays Rule." That is, make the losing party's lawyer liable for the legal fees of the prevailing party. If the lawyer wishes and is able to shift that risk to his client through an indemnity contract, that's ok, too. This rule would (1) force lawyers, who are, after all, in the best position to judge the quality of the case they are prosecuting or defending, to exercise some quality control and keep weak cases out of the courts, (2) ensure that wrongly accused defendants are made whole, and (3) ensure that plaintiffs with meritorious cases are made whole through the recovery of their legal fees. I suspect it would force plaintiff's attorneys to form large firms which would be able to insure against the risk of losing by spreading the risk of loss across a large number of actions. It would probably mean the end of "Go-for-the-gold-ring," high-stakes-on-slender-theories litigation such as tobacco class actions, McDonalds and other "fat-food" litigation, slavery reparations cases, and would result in much closer scrutiny by plaintiff's counsel of garden variety tort cases such as defective product or medical malpractice cases and much less likelihood of actions naming every deep pocket in sight in the hope of forcing a settlement. However, impecunious plaintiffs with strong traditional tort cases againt manufacturers of defective products or negligent medical service providers would have no problems finding counsel.

Posted by: D. Levene at January 8, 2004 11:00 PM

That sounds very good, actually. Your comment on "indemnity contract" closes the only problem I have had with that very proposal for a long time, namely, that a guilty defendant would be unable to acquire counsel (which they would need, even if they plan to settle, to avoid being taken advantage of).

Very good indeed. Of course, the chances of it happening are somewhere on the same order as a human being throwing a snowball from the surface of the earth and hitting the sun (without the snowball melting).

Posted by: Deoxy at January 9, 2004 10:12 AM

In his January 6, 2004 comment, Dr Olsen notes, "Teachers, businessmen, physicians, and police officers are made accountable for their actions by the threat of lawsuits" He then concludes lawyers are not accountable in the same way and proposes a system to punish lawyers who are unsuccessful in pursuing their client's claim. The fact is, lawyers for both plaintiffs and defendants are held accountable for thier actions in the same manner as physicians by the threat of lawsuit. Actually, what Dr Olsen proposes is a standard of perfection. Using his logic, if a plaintiff's lawyer does not win, his case must have been frivolous and he should be penalized. That is certainly not the standard applied in the medical profession for malpractice actions. Would the Dr propose a system for handling medical malpractice cases that would punish a Dr evey time the outcome of a procedure was not as expected? If he would, I am certain the rest of his profession would not support him. What about the case the plaintiff's attorney wins? Should the jury get to decide if the defense attorney should be penalized for a frivolous defense? Frivolous lawsuits exist. So do frivolous defense tactics. The question is how to put an end to both practices.

Posted by: MrCVS at January 9, 2004 10:58 AM

Leaving aside the merits of his argument, I believe "MrCVS" may have gotten confused about the authorship of the passage he quotes. The letter and its proposal comes from R. Desai, Dayton, Ohio. I posted it on the site, and also wrote the editor's response that appears in italics. -- Walter Olson [not "Dr.", and not "Olsen"], editor, Overlawyered.com

Posted by: Walter Olson at January 9, 2004 02:24 PM

Kill all the lawyers...

Posted by: Bill Shakespeare at January 11, 2004 01:39 AM

Nice to see that at least one ignorant idiot has read enough Shakespeare to be able to quote it, even if he didn't read the context of the passage - which, of course, concerns the best way to promote anarchy.

Posted by: DrFrankLives at February 21, 2004 10:22 PM

Only one out of eight incidents of malpractice are discovered in this country. Poor, uneducated and mentally disabled people are particularly affected.

Keep in mind that malpractice does not mean a "bad result". It means actual negligence. Wrong legs cut off. Allergies to medications not detected because records are not read. Instruments left inside patients. Doctors who leave in the middle of operations. Hospitals that force physicians to work incredible hours, tiring them, encouraging error.

The 30% rate quoted above (statistics indicate 80% of malpractice plaintiffs do not prevail), does not mean that 70% of the cases are frivolous. In most if not all of these cases, injuries have occurred, most often, horrific injuries. The fact that there is a low success rate speaks to the difficulty of proving malpractice because of the standards of proof set up. These are encouraged, not by "the trial lawyers" but by AMA, and other lobbying groups. To protect doctors. Even the statute of limitations for bringing malpractice suits are shorter. Doctor's lobby, again.

Don't blame the people you kill and injure because of your negligence. Physicians heal thyselves. Don'protect your negligent collegues. Focus your anger on your insurance carriers, who are making money hand over foot (as most of you all do),l and making you pay for their poor investments.

I know MD's are suffering from unfair insurance rates. But don't be saps. You're being taken for fools by your carriers.

Posted by: D. Aboulafia at March 14, 2004 10:43 AM