Saturday, September 8, 2007

Re: Are Plaintiff's Attorneys Becoming Targets?

There was a post on the blog today entitled, Are Plaintiff's Attorneys Becoming Targets? discussing whether the Federal Government and various special interest groups are now targetting the Plaintiff's bar. Plaintiff's publications such as "Trial: The American Associate of Justice Journal" have been discussing this issue for a long time, and there has been academic scholarship on the issue for decades.

In short, it is well established that yes, Special Interest groups and, in turn, the Federal and State governments are prone to attacking trial lawyers. It is a reciprocal relationship, since the goal of the Trial bar is for the most part, unfortunately, to go after deep pockets. The Trial layers vilify "Corporate America," and Corporate America vilifies the trial lawyers. It is so engrained in the anglo-american culture that it can be considered a quasi-governmental function akin to journalism. Trial lawyer's do not simply target insurance companies, and point out the most shameful conduct in that industry, they do it to every industry.

Tort Law, (the field of law that encompasses personal injury, medical malpractice, and the other retail t.v. commercial type issues, as well as more complex fiduciary and commercial matters), is the field of law that involves governmentally imposed morals, and thus Tort lawyers are, at least they are supposed to be, the gate keepers for public responsibility.

We probably are seeking an era where special interest groups are particularly influential and exploiting the Plaitiff's bar's failings (while hiding their own). The lesson from the situation, however, deals more with the big picture. If the less-ethical side of Corporate America (bear in mind I am a big fan of corporate america, I just feel that you need to keep an eye on its leaders, since not all of them are ethical) is winning this battle, it means that we need stronger gatekeepers.

What keeps the Plaintiff's bar down is a lack of public respect and unfortunately low salaries. Money is concentrated at the top, just like in corporate america, and Plaintiff's lawyers are disproportionately composed of sole practitioners and small firms. Salaries for the Plaintiff's bar, (median and mode moreso than average) are a mere fraction of the salaries for their large-firm and defense counterparts. There's two explanations: first, that the 1/3 contingency fees are less lucrative than hourly billing; and second (the one I find more credible), that the money does not trickle down (and I don't mean this to knock my current firm, it is an industry wide epidemic). The average Plaintiff's attorney, however, even if they are making less, has a chance -- if they are successful -- to do better than they would as a partner at a large firm.

What we need are better Plaintiff's attorneys, both as an ethical and practical matter. Top law school grads go to large firms, and Plaintiff's work -- as an entry-level job -- is considered profoundly less respectable than public interest but with near comparable pay. Until that changes, the Plaintiff's bar will be on the defensive.

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