Legislators and elected officials have often maligned plaintiffs
lawyers. Psychothera-pists might characterize this vilification as an attempt by these
politicians to overcome their own feelings of inadequacy and low self-esteem, which could
be engendered by comparing their own accomplishments to the achievements obtained by some
trial lawyers. Dont blame them; after all, its not their fault that our system
mandates the expenditure of vast sums of money to succeed in the political process, which
might make it difficult for them to take any action against the powerful agricultural,
pharmaceutical, firearm or HMO lobbies.
Yet, consumer groups, the elderly, and even innocent children on
playgrounds still need a modicum of protection. This can be as simple as safety locks on
guns. What is fascinating to observe is the bonding of government attorneys
general and plaintiffs lawyers, combining their war chests in a new type of legal
activism and social engineering.
Pundits and critics frequently attempt to disparage plaintiffs
lawyers by implying that they are only in it for the money. However, those
naysayers fail to consider that contingency fee agreements are inherently risky business.
They require that the lawyers actually invest their time and money (for costs) in clients
cases. This justifies a greater recovery, since the lawyers assume the risk of losing
everything, including their shirts.
When the fees are too great, some may argue that they are
unconscionable, pursuant to Rule of Professional Conduct 4-200. Yet, in one remarkable
case, Brobeck, Phleger & Harrison v. The Telex Corp. (9th Cir. 1979) 602 F. 2d 866, a
million-dollar minimum fee was sustained due to the status of both the corporate client
and the firm. One of the rules 11 criteria is the relative sophistication of the
client and the attorney. The sophisticated client even had the assistance of experienced
in-house counsel when it entered into the fee agreement.
Gosh, some sophisticated clients have even been known to manipulate
the rules (especially in legal malpractice) to their advantage. The plaintiffs
counsel in the tobacco litigation boldly risked everything and entered into detailed fee
agreements with states attorneys general. Maybe these were very sophisticated
clients, possibly using the rules and public opinion to their advantage. OK, the fees
would have been humongous, but let us not forget that there was a reason the defendants
were called Big Tobacco.
Historically, each side of litigation consisted of one lawyer and one
client. It was individual in nature. Does anyone think that the founding fathers, in
crafting our system, could in their wildest dreams have anticipated consolidated
litigation with thousands of clients, coupled with entrepreneurial litigators who may be
able to force corporations to their knees, if they lack the necessary resources to
litigate claims? This could not have been part of the original game plan.
E-mail comments are welcome, but please dont show this to
either Charlton Heston, Tony Soprano or any of their esteemed colleagues.
Diane Karpman can be reached
at 310/887-3900 or firstname.lastname@example.org.