Bar Rooms

Biting Commentary

Opening the Door to Fort Knox

By Richard B. Barger, ABC, APR

Originally Posted

The Dubai Supreme Court has ruled that a husband in Dubai can beat his wife, but not too hard. He can beat her for disciplinary reasons, but not so hard that it breaks bones or that she is deformed.

In the United States, it'd be harder to get such a ruling. Not necessarily because our Supremes are any more enlightened, but because the case would have had fierce media attention and one or more incredibly high-dollar, branded attorneys arguing on behalf of the wife.

What's In a Name?

You know, attorneys who are beyond just a name on a pleading. Media stars. Attorneys whose names have become a brand, like DeSoto, Studebaker, Nash, Hudson, or Edsel.

Gerry Spence, F. Lee Bailey, Robert L. Shapiro, Johnnie Cochran Jr., Floyd Abrams, David Boies, Robert Bennett, Barry Scheck, Leslie Abramson, Chip Babcock, the ubiquitous, ranting Alan M. Dershowitz, or the late Melvin Belli or Charles Alan Wright or William Kunstler.

Cases with the likelihood of lots of media attention attract high-profile lawyers -- the kind that handle the high-visibility (translation: high-dollar) court action.

A handful of these high-profile, high-visibility, highly-publicized practitioners have figured out exactly how to use the media to their advantage.

A privilege attaches to statements in pleadings in court. Smart lawyers can load the pleading with outrageous information, and -- well, they wouldn't actually lie, would they? -- they will be protected by absolute privilege. Say any damn thing they want to.

If You've Got It, Flaunt It

Does this privilege extend to the news? Does it extend to their paraphrasing the words of the pleadings in an on-camera interview? The media certainly have no such guidelines. If the attorney said it in public, that's good enough, isn't it? That it was said is fact; the more shocking the better placement on tonight's newscast.

Obviously, pretrial publicity can prejudice the public and the potential juror pool and can affect the perception of fairness at a trial. But both prosecutors and defense attorneys try their damndest to use all the communications techniques in their arsenals to their advantage.

And a mostly cooperative media clears the way for them.

But publicity aside, that's kid stuff.

The attorneys you want to invest in, the ones you want to follow just to pick up the scraps that fall from their pockets, are the plaintiff's attorneys, particularly the large-scale ambulance chasers who play the contingency-fee and class-action lotteries.

Las Vegas In a Courtroom

According to their Web site, "Milberg Weiss Bershad Hynes & Lerach LLP is the nation's largest class action law firm representing defrauded investors, consumers, companies and public entities in major litigations pending in federal and state courts throughout the United States."

They have a kazillion class action suits under way right now, and they're clamoring for more. Perhaps you've heard of some of the dozens of folks they're after: Enron, of course. And Aetna, Apple, Bristol-Myers, Corning, Global Crossing, Intel, Kmart, Lucent, Rent-A-Center, Tyco, Wal-Mart, Williams Companies, as well as our industry's own Williams Communications.

To Mel Weiss, Wall Street IPOs must be of the devil. Market manipulation! Fraud! Corruption! Last year, Weiss filed more than 180 class-action lawsuits against Wall Street investment firms, the Milberg Weiss Web site proudly announces.

Credit Suisse First Boston. Goldman, Sachs. Merrill Lynch. Morgan Stanley Dean Witter. Robertson Stephens. Lehman Brothers Holdings. Salomon Smith Barney. And the Internet technology companies they took public. So says the December issue of Bloomberg Markets quoted on the Milberg Weiss site.

That's Your Day in the Barrel

During a bad month in 1999, Milberg Weiss was ordered to pay $45 million in compensatory damages, after a Chicago federal jury found them guilty of "abuse of process" for what the jury felt was a malicious lawsuit.

According to the Bloomberg article, which, to its credit, Milberg Weiss openly quotes on its site, the law firm didn't bat an eye, choosing "to settle for $50 million before the jury could rule on punitive damages."

Just a drop in the bucket when you're earning many hundreds of millions.

Consumers Get the Hind Tit

Of course, there is a good societal reason to allow classes to be protected. But have you ever noticed the outcomes? Attorneys will come up with a global settlement that results in the attorneys "getting theirs" and the consumers getting string-tied crap. You buy the car and we'll give you a rebate. Here's the pile; you find your own pony.

Some firms find seeking out classes on whose behalf they might file an unseemly exercise in manufacturing litigation before it is requested. Others with a more proactive PR staff would say the big-time plaintiff's attorneys are providing a real service, allowing cash-poor injured parties to have some shot at compensation for some sort of injury. Otherwise, they say, some egregious actions would never be pursued. So perhaps the common good comes into play.

Are the class-action attorneys really trying to help people and deter evildoers, or have they just found the combination to Fort Knox? chronicles the high cost of the system. Their Web site says, " explores an American legal system that too often turns litigation into a weapon against guilty and innocent alike, erodes individual responsibility, rewards sharp practice, enriches its participants at the public's expense, and resists even modest efforts at reform and accountability."

Class-action lawsuits are just a variation of other, less-glamorous cases that also rely on contingency fees. The premise is that few of these cases can be won; therefore, all the hard work that goes into prosecuting bad cases must be rewarded by a big payday when the outcome is favorable. Without contingency fees, people without a lot of money wouldn't be represented. Something like that.

The lawyers would argue it is a contract issue: Freedom of contract. If the plaintiff doesn't like my terms, let him go somewhere else. Let them eat cake, I guess.

I'll Do a Better Job if You Pay Me More

My question is, why should lawyers be allowed to gamble on their work? Why is their work any more billable if they win than if they lose? Weren't they working as hard as they could have been? Does the vague possibility of a big payday somehow motivate them to do a better job? Why weren't they doing their best job in the first place?

How many ethical communicators do you know who say, "I'll do my best work, but won't charge you as much if we don't succeed. However, if we do succeed, my work somehow becomes more valuable, so you'll owe me more money."?

Can you get away with that?

My contingency proposal: When they win, pay those greedy bastards only for the hours expended. However, include a weighting factor that takes into account their success record and the profession's success record in similar types of actions. If they're better than average, they get more money. If they're merely betting on the come and not particularly successful, previous results will penalize them. But relate their compensation to the hours of work performed, not to the litigation lottery wheel spun in a closed jury room.

Actually, some judges are trying to equalize the system. They can make summary judgments. Courts sometimes decide that billings were exorbitant; judges may look at the likelihood of success and include some multiplier -- or a "divider" -- to affect the fee.

I'm pretty good at my profession. I almost would be willing to allow a judge to determine how much more or less than "standard" I should earn on a given high-risk project.

Except that a judge was once a lawyer, and he may have read these commentaries!

Next week will be the fourth and final segment of what started as a two-part rant about the legal profession. I promise.

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