Bill Limiting Attorney Fees

[Hometown]

I liked what Dal Handley said in the El Reno Tribune when he called this the "Corporate Immunity" bill.

Why do Republicans consistently care more about Big Business than they do about Average People?

Hint = $

[guido911]

That's right CF, it's the evil insurance company that deprives people of money that's rightfully theirs. It could not possibly be that the insurance company has insured a person facing liability and that person might actually believe he/she did nothing wrong. Reading your post one would expect that if you get into a car wreck and in your opinion you did not cause it, the other side should just open up their pocketbook and start handing out cash.

Now, in the interest of full disclosure, my practice is nearly all defense-although at one time I did almost all plaintiff work. My support of this measure, however, has nothing to do with that fact. Indeed, there is a likelihood that if enacted it will be declared unconstitutional special legislation if it is not a constitutional amendment. I believe that under no circumstance should an attorney have as much at stake in a case as the injured party. 50% attorney fee contracts are abhorrent if not down right embarrasing to this profession in my opinion. Now I will concede that 33% might be low and the percentage could be a bit higher up to the first million.

What say you about my tort reform suggestions?

[Gold]

Dan Sullivan is so full of it, his eyes are green.  That said, his business would stand to take a bit of a hit if you believe his logic that insurance companies are so afraid of Oklahoma courts.  I'm not sure I buy into it.

I think I remember a case where he asked for punitive damages, then around the same time sponsored a bill asking to get rid of them.  I might be a little off on those facts, but I remember a specific med mal case where that was an issue.

Regardless, this bill is clearly an over-reach in an attempt to get something less stringent passed and/or boost the GOP's chances in the 2010 state elections.  This is classic national level GOP strategy over the last 15 years.  They try to set it up to where even if they lose, they win.

[cannon_fodder]

Guido,

I'm not faulting the insurance companies for not being cash machines and I'm not pointing a finger at defense attorneys.  They have every right to defend their position and certainly are justified just as frequently as any Plaintiff may be.  I never indicated that they shouldn't be allowed to or were not justified in defending.  I was playing devils advocate to the extreme position that it was all the Plaintiff's fault but pointing out that the others parties have a roll as well.

But certainly the insurance companies and defense counsels have as much or more to do with poor little Joey not getting just compensation as his Plaintiffs attorney does.  But the anecdote assigned all the blame to Plaintiff's counsel, who we are then supposed to rally in favor of legally capping his pay.  When the other parties involved were in as good, if not a better position to compensate the kid for whatever travesty befell him.  So why are we pointing all the fingers at the one person trying to get money for the injured kid?  I'm merely pointing out the flaw in the anecdote.

And 50% fees, from what I have seen, are reserved for slip and fall cases that go to trial.  Situations where the likelihood of success is slim.  Given the low odds of success most people won't take them even at that rate.  But that doesn't mean that some of them don't have merit and deserve a shot at representation.

BUT, even if a firm wanted to charge a 50% for every settlement they did.  Why bother making it illegal?  Are you arguing that citizens are so stupid they can't call another firm (not all of them have William Shatner)?  Or are you arguing that there are not enough attorney's in town such that there is somewhere else to go?

How about laws that used cars can not be sold above Blue Book.  Doctors can't be paid above the medicaid rate.  Plumbers rates are all over the bored, cell phone contracts are crazy... I'm sure there is a host of other markets we should protect the public from by limiting someones pay.  

The main point is as follows:

Under this bill Plaintiffs will have more difficulty finding someone to take a tough case and in general will receive lower settlements.  The main beneficiary of this proposed law would be insurance companies who reduce the threat of have a verdict levied against them by a jury and will limit the determination of new issues of law.  This isn't a bill to help citizens, it's a bill to help insurance companies.

And per your tort reform,

quote:it should scrap that idiotic joint and several liability statute and mandate that all professional liability cases be reviewed by an expert and a report verifying that the case is meritorious. Also, at a minimum, the legislature needs to do something about the state's punitive damages statute.

Adding required experts is unfortunately a farce.  Each side can hire someone to say whatever they want - whoever spends the most generally gets the best trial expert.  Lets run out and hire Framjee to say whatever we want him to say - well, OK, not him.  After a decade he has been adjudicated a defense whore (Tulsa CJ-07-3102, 'expert witness' pays way better then practicing doctor), but there are plenty of others out there happy to take a check to be an expert.  Most of the time the 'exert' hasn't even evaluated the patient - they aren't to get an expert opinion but just for jury impact.

Look at the domestic situation.  Experts galore for ugly custody matters, an independent reviewer for DHS, and a judge as an arbitrator.  They can still drag out worthless claims for years and cost tens of thousands of dollars for both sides (neutral experts remain amazingly neutral "no finding of misconduct" does not dismiss a frivolous claim).  In the realm of med mal if the Plaintiff hired the expert it would always have merit, if the Defense hired them - it would always fail.

In reality, and I'm not implying this is your intent, but in reality such a requirement would discourage an large number of meritorious claims from being heard.  Most plaintiffs can not front thousands for an expert review and most plaintiff's attorneys either don't have or won't risk that kind of capital for them even if they think the case has great merit.    

If there was some way of actually administratively reviewing the claim that was unbiased, it would be a great thing.  But unless you are arguing that our Workers Comp. system in Oklahoma is a smooth operator (among worst in the nation for business and not much better for workers) I'd have to say it wouldn't work out.  In most such instances the experts go both ways and the neutral expert refuses to make a firm decision.

If there is no merit to a claim I support judges who have the nerve to throw it out and at least entertain a request for fees.  Rules already exist to take care of the problem, we need judges we are willing to use the tools they have been given.  Not more administrative hurdles that really won't aid the purpose.

Again, no, the system is not perfect.  But maintaining an adversarial system requires parties to be on or near an even footing before the court.  We don't require the defense to prove that they have a meritorious defense before issuing a general denial and for that matter we don't punish them if they stall without a defense.   The parties enter before the court on an even footing, if it is later shown that one party misused the system, dismissal and/or fees are an appropriate remedy.

And yes, other things need to be changed too.  I am not married to the Plaintiff's practice, my interest is in keeping the system open to plaintiffs.  As cliche as it sounds, if people can't be heard in court then laws, contracts, and rights simply don't matter.  The more restrictions on plaintiff attorney fees, the more administrative hurdles and added costs - the less likely it is someone gets heard.  

So my fear is throwing out merited claims with the bad simply for expedience sake.

/ramble

[Gold]

The 50% contingency fees (in the event of trial) are increasingly common.  I know one well respected plaintiff firm in town only uses them.  You see them in a lot of cases where there is a smaller amount of money (less than $400K) and a possible huge expert witness bill at trial.  It buys the risk in the event the small firm drops $50K+ in cost or if costs/attorney fees aren't recoverable.

Sullivan's bill really misses the boat in my opinion.  There is just as much abuse my the defense bar, especially right before trial.  Certain companies would rather spend $10,000 a day on a trial than offer a dime to a plaintiff; they'll literally throw the kitchen sink if the client will pay for it.  If there was a way to get rid of all the ridiculous crap that defense firms bill for, I think insurance companies would be better off.

[guido911]

I hear you CF. I think we can agree to disagree.

[Rex]

Why all the animosity towards Jeff Martin?

[Conan71]

quote:Originally posted by Rex

Why all the animosity towards Jeff Martin?

Why not?  We always pile on trial lawyers plastered on the cover of the phone book.

[Gold]

I went to meet Jeff Martin and there was no giant robot there, like on his ad!  And I didn't meet William Shatner, either!!!! [)]

[Rex]

That's a good one Conan.

Doesn't less lawsuits mean less defense work? Which means less money for defense lawyers?

[Hoss]

quote:Originally posted by Gold

I went to meet Jeff Martin and there was no giant robot there, like on his ad!  And I didn't meet William Shatner, either!!!! [)]

'I'm Denny Crane!'

[cannon_fodder]

quote:Originally posted by Rex

Why all the animosity towards Jeff Martin?

I don't think anyone should any animosity towards any particular attorney (until after you brought this up, then his advertising came under fire).  Unless you were being sarcastic, my sarcastic-o-meter has been known to be weak on Mondays.  

I said:

quote:there are hundreds of attorneys in the yellow pages - call one and tell him Jeff Martin gave you 40% and you want 33% (if you think that's a wise move)

Just a random well-known plaintiff's attorney.  I have no idea what his rate structure is nor have I heard particularly good or bad things about him as far as how good he is to work with or how well he does for his clients.  Just sayin' if you didn't like what he had to offer you could certainly shop around.

and yes Rex, less suits means less defense work.  This isn't being pushed very hard by the defense bar, it is the insurance companies that want it.  The defense firms are of course paid by insurance companies, so they have to at least put on lip service.

[Rex]

I know those ads are funny.  If you google some OKC lawyers on youtube.com  you will get some really really wild ads.

Regarding the defense bar paying lip service to this, Guido seems to believe in it.

I am asking for an honsest answer, none of us know each other, so no ego needs to be involved...is it really just jealousy? Guys like my boss and Martin (who are very close BTW) seem to do very well financially and seem to have fun and be genuinely liked by their clients.  Is the other side just plain sour and jealous?

[guido911]

quote:Originally posted by Rex

I know those ads are funny.  If you google some OKC lawyers on youtube.com  you will get some really really wild ads.

Regarding the defense bar paying lip service to this, Guido seems to believe in it.

I am asking for an honsest answer, none of us know each other, so no ego needs to be involved...is it really just jealousy? Guys like my boss and Martin (who are very close BTW) seem to do very well financially and seem to have fun and be genuinely liked by their clients.  Is the other side just plain sour and jealous?

Come on Rex, I explained why I support the cap. It has nothing to do with jealousy. Incidentally, I am doing just fine financially and could care less about plaintiff lawyer earnings.

[Gold]

I know a lot of attorneys who very much question the abilities of Martin and his ilk.  They just don't think they are very good members of the Bar.

I've had some different experiences with those types of firms.  I tend to see them more as middlemen for insurance companies.  They often have so much work that stuff falls through the cracks.  You can't actually get the attorney on the phone to talk to you; you'll get a secretary or paralegal on the phone (at times) and I've seen them make deals over procedural stuff.  I have no idea how those types do in the court room, but I have doubts on some of them and have heard some stories.

I also think a lot of bigger firm attorneys are ambivalent towards the Jeff Martins of the world.  They often exist in different worlds; Jeff Martin didn't get a piece of the chicken litigation, for example, and those firms generally aren't going after the car wreck cases with $5,000 in medical bills.  Insurance companies handle a lot of stuff in house that law firms never touch.

I think Martin's ads, especially the most recent one with the robot cartoon, are pretty cheesy and don't do much for the image of the profession.

I'm also not so sure there is a bias against these Plaintiff types so much as there is a bias against their personalities.  I know a couple of Plaintiff guys in town that are generally not well-liked; it's nothing about their legal work, they just have nasty personalities, especially if you get on their wrong side.  But there are just as many like that, if not more, on the defense side.  Some attorneys are jerks -- I'm not sure that's newsworthy.