DING. DING. DING. We have a winner. Decided to duck into D&D for a change. FF is right on the money on this one. When I clerked for a state district judge here in Harris County, my primary responsibility was summary judgment motions. If there wasn't a material fact issue, the judge would kick it as a matter of law. We forget that there are checks and balances in place to prevent what so many percieve as an inundation of 'frivolous lawsuits' or 'runaway juries'. Of course there are frivolous lawsuits. There is just not nearly the amount that some people think. Trials cost money. They are a relatively expensive undertaking. If there is not a valid cause of action or a material fact question, it gets dismissed before it even gets to a jury. Assuming it does get to trial and goes to a jury, most juries are smart enough to award damages in line with the liability. Assuming they don't, the judge can reduce the amount of the award. Assuming he doesn't, the judgment can be appealed and reduced by the appellate court. Unfortunately, the personal injury lawyers who use schtick and promises of big paydays don't do the reputations of attorneys any favors. As a matter of fact, most of these *tough, smart* lawyers never even make it into a courtroom. They farm out the cases and try like heck to settle. They, like most lawyers, know that unless you have a rock-solid p.i. case, it's much more economically sound to seek a settlement.
thanks for the back up I've appeared before most of the district judges on the civil side (non family law), and tried cases before a number of them. Most people don't realize how HARD it is to get a case from filing to jury verdict, and med mal cases are the biggest ball busters of them all. You mentioned the "tough, smart lawyer." You described him perfectly. About 10 years ago, I got a call from a former associate who had been sent a case to try by that guy. He signed the case up and immediately farmed it out to my former associate's firm. They were set for trial in a court I'd won two jury trials in during the past two years, so they wanted to get me to try it for 1/3 of the fee. I worked it about 30 days, and settled it for 120 grand. I remember the client told me he wanted 130 grand total, and he was willing to "roll the dice." I told him "then take ten grand, go to Las Vegas, bet it on 'the field,' and roll the dice, because we don't roll the dice at the courthouse, and betting it all is stupid." It's like the Wall Street guys say, "bears make money and bulls make money, but hogs get eaten alive." Folks, there are "litigators" and there are "lawyers who actually try cases." There are not 10% of the "litigators" who have ever tried a case as a first chair. Anyone can second chair or third chair a trial, but when you are THE GUY for your team, the buck stops with you, and the pressure is on you from the moment you get to the courthouse until you go home, and when you go home, you keep working the case. I've tried more cases than I care to remember, and had great success at them. I'm still having great success at them, although I haven't had a trial in over 2 years. Trials are ball busters, pure and simple. It's like writing, acting and directing an improvisational play that goes on for days. If you spend a week in trial, you lose contact with the real world. If you spend a month in trial, you practically need a counselor to re-enter society. The irony is that this is what I wanted to be good at, and sure enough I have been. But I no longer like it the way I once did. It's like being young and in a war and not thinking about what you're really doing. Then when you're a successful, high ranking officer, you look back and think "OMG, I did that! I remember a particular case that still troubles me. I was medmal defense, and I just beat the dogisht out of the plaintiff's attorney. Those were the days when poorly put together cases could still get to trial. Anyway, I had him and his client beat down so bad they settled it for a ridiculously low number. How low? Less than 10% of what the case was reserved at by the insurance company. The "reserve" is the number the insurance company uses for regulatory and capital evaluation purposes. They are typically lower than what it ends up costing to settle, as they all low-ball the number. Stealing money from a middle aged widow whose husband died on the operating table because of the negligence of my client, a doctor. Oh, and he was negligent. No one knew that better than me, but it wasn't my job to explain to this lawyer how to make his case. It's been over 20 years, and I still feel bad about that one.
Andy, I hope you will appreciate why I don't want to do that. I really don't want to get into email advisories for a variety of reasons, not the least of which is a concern about the possibility of creating an attorney-client relationship. I don't even accept new business clients that come recommended, and I'm reluctant to give advice except in a public forum, where it's not acting as anyone's attorney. Maybe your question wouldn't fall in that area, but I'm not keen on pen pals. I realize that is probably unusual, but I don't like having my email address known. I think there is a duty of attorneys to try to help others understand the law and how it works, and for that reason I have gone out of my way to try to be responsive on these boards. But I don't want to advise people because it complicates my life and exposes me in ways I don't want. If you can post a hypothetical, I will attempt to respond as well as possible. The time I have now to post on this board is partly a function of my deciding NOT to practice law as much or as hard. That's why I was reluctant to even get into the Prop 12 discussion in detail, but ultimately did. I've been burying these demons, only to dig them back up.
Andymoon - thanks for the explaination Friendly Fan - tough story about the old widow. It is stories like that . .that worry me about this reform Rocket River it is not about justice . .fairness or even responsibility it is about who has the better representation [lawyer, law makers, etc]
she did get her husband's pension, and she got a chunk of cash, but a good lawyer with capital to invest in the case would have gotten 20 times what we paid. as for the battle, and who wins, I have a saying that is original (most of mine aren't) You take the law, and I'll take the money, and we'll see which one wins. I actually told that to a guy once when I had his client's $200,000 tied up and wanted a piece of it for my client, who was owed half of it. He told me I was wrong on the law, but I knew I was right on the power issue. It was split it with my guy or have it remain locked away until resolution of the case. remember, the law is an ass, so beat it like a rented mule
I work with computers for a living, and as such, understand how frustrating it is to have people ask for free help. My question has nothing to do with law and is not a professional question, just a personal one. If you would rather not give out your email address, that is no problem. A
BTW. friendly fan do you live in Houston? Just curious as to what courts you are dealing with. Your problems with the widow are the reason why I could never work on the defense side. I really think that on the plaintiff's side you are more free to take cases you believe in. If you are on defense and say Walmart is a main client ( a friend who used to do plaintiff worker's comp is now in that position) how can you turn down a worthless case if they want you to litigate it? How can you fail to zero out the unrepresented little smuck if you can?
If the criticism is correct, then it shouldn't be labled as arrogance. I do appreciate your commitment to the alliterative theme though.
you might think that, but it's not really true there are plenty of scum bag plaintiffs who are greedy, if not faking it, and they lie to their attorneys to get them take the case. Imagine you are a plaintiff's attorney who invests a ton of money in some guy's case, then the defense presents photos or video their investigator took showing Mr. Plaintiff washing his car, or painting his house, or buying crack cocaine, when he's not supposed to be doing any such things. That happens. once you are in a case, you can't just bail out when you feel like it, especially these days. if you want to withdraw because the case is weak or your client lied to you, there is a risk of malpractice if you make that issue known. it's tricky. many lawyers end up having to file a motion to withdraw if the plaintiff can't or won't get a new attorney. If you practice law, you cannot always end up on the "right" side. You cannot know that going in. Most clients tend to see their position more favorably than it is, deny the things they have done wrong, and ignore the possibility that they will be seen a liar and/or a schemer.
the law is an ass is an old saying beating something harshly has long been known as being beaten like a rented mule I just put the two together, tying old English and old Texan
If you practice law, you cannot always end up on the "right" side Of course if you try by not specializing in defending walmart in worker's comp cases or not being in the Baker and Botts labor law section, where you work load could consist of defending sexual harrassment cases you will improve your batting average immensely.
i think you misunderstood his point...sometimes walmart is the good guy...there are frivilous claims all over the place...and many of them get going because the attorney is left in the dark by a client who has visited with so many other attorneys that he/she knows just what to say to get the attorney to take the case...even if it's stretching the truth. there's no such thing as good guy law and bad guy law...very rarely in a case is any one party blame-free, in my experience. and backing up something else FF said...trials are super-rare. i have friends who are board certified experts in trial law who haven't been through a full trial (opening to verdict) in over 5 years. i personally believe that the only cases that go to trial are ones where one side or the other drastically overestimates the strength of its own position...otherwise, you wouldn't subject yourself to the risk. the only point i read above i really disagree with is the assertion that judges are really using summary judgment motions to dispose of claims...what i see is a ton of judges who are so afraid to make a ruling...who would rather have a jury make a decision on a case. having said that...a ton of the work i do is in the realm of commercial collections for banks, and we NEVER go to trial on those...those are entirely disposed of on summary judgment motions. "did you sign the note? did you get the money? ok...you're liable." that's pretty cookie-cutter and perfect for summary judgment practice.
there are frivolous claims all over the place...and many of them get going because the attorney is left in the dark by a client who has visited with so many other attorneys that he/she knows just what to say to get the attorney to take the case...even if it's stretching the truth. I guess you see this from the perspective of a business lawyer. In many areas where you are representing the little guy, they simply aren't that sophisticated. I'm not saying it never happens, but it is a distinct minority. Max, I'm not referring to you. I can see how it it comforting for the big firm sexual harassment defense lawyers or polluter defense lawyers etc. to feel that many of the plaintiffs are liars.
but i've represented more than a few little guys who've lied to me...that's what i'm saying. i'm saying it happens quite frequently...the truth gets stretched...people begin to feel a sense of entitlement when they have a perceived claim, and they justify lying because they see an injustice. i think that's a societal problem that just raises its head quite obviously within the context of the legal system. they go to the first lawyer...and they tell their story...and he says, "you know...if fact X had not have happened, i think you'd have a great case...but since it did, i'm not so sure." so they go to the second lawyer and "forget" to mention that fact X happened...i've had this happen to me on more than one occasion...the little guy is just as likely to be deceptive as the big guy. many times, "the big guy" is nothing more than a group of those "little guys." the MOST honest client i have is a representative of a bank we represent...he is among the fairest and most honest guys i've ever met in any walk of life.
And your basis for this assertion is what? I can't believe how many people lie under oath. If you think its mostly plaintiffs, or mostly defendants, or mostly big business or the little guy, you are either uninformed or incapable of being objective. Max's points are spot on.
One of my good friends from Ft. Worth has been very instrumental in the development of Prop 12. He is the head of a large hospital group. I sent a note asking for his position to post here but haven't gotten it yet but his wife writes: Well, I can give you a recap of it. The docs that we know all are paying sky rocketing insurance fees on thier practices. Outside of the cities, it is getting difficult to find obstetric care now. In the city, it is becoming increasingly difficult to find competent neuro surgeons etc. Do to the cost of insurance even if they are great docs who have never commited malpractice. Many are leaving the state. Bar can't understand why MADD would hold the position that they do, who will care for people after they've been in a horrific accident? Are they expecting to sue a drunk driver for a bunch of money? Maybe we should prosecute bad doctors and cut out the insurance and lawsuits for punitive monetary damages. In Fort Worth and Dallas, We have high level trauma centers that are having a difficult time now staffing with competent docs. No one wants to pay an insurance company 100,000 plus dollars for the privledge of working late long hard hours. Many of them are leaving Texas. That's my recap of the feelings in the medical community.
i disagree...big guys get caught lying all the time...usually their lies are more verifiable because the big guys are required to maintain records that individuals are not. when they shred, they get in trouble.
