South Carolina Personal Injury Law Blog

Proof That Our Tort System Works

Anti-consumer groups like the Pacific Research Institute and Alabama Voters Against Lawsuit Abuse, which are funded by big companies, are seeing their weak arguments for tipping the scales of justice in favor of rich CEOs and against citizens get even weaker.

The ruling of a Washington, D.C., judge in favor of the dry cleaners in the now-famous "pants case" is proof positive that the American civil justice system works well as is. In addition, the plaintiff, D.C. Administrative Law Judge Roy Pearson, was ordered by the judge of the case to pay the defendants' court costs in the outrageous case.

Our civil justice system is designed to protect the rights of all parties, defendants included, and the judge's ruling in this case demonstrates how well the system works to weed-out frivolous lawsuits.

Anti-consumer groups like PRI and AVALA who are the labor behind the CEO-led takeover of the courts don't like that the judge's ruling in this case proves the civil justice system works for consumers who are in the right, no matter if they are bringing or defending a lawsuit. Will these same groups put as much energy and money in broadcasting the result as they did when the case was filed?

The overpaid CEOs of the billion-dollar corporations behind PRI, AVALA and other anti-consumer groups hate to see justice served, especially when it works against them. Is there a need for reform? Absolutely, it's called corp(orate) reform, not tort reform.

Source:  "Pants Case Shows System Working" by Bob Price, President of the Alabama Association for Justice, published in the Montgomery Advertiser.

Doctor Requires Patients to Promise Not to Sue

Before gynecologist Ruth J. Schulze will see her patients, she requires them to sign a contract promising never to sue her for malpractice. The veteran physician in Ridgewood, N.J., requires the contract as a condition of treatment. Dr. Schulze sees it as the only way to control the rising malpractice premiums that she believes have put some of her brethren out of business.

As you might expect, patient advocates and legal experts are troubled by the idea of asking patients to sacrifice their legal rights — and they worry the practice could spread. By signing the contract, patients forfeit their right to a jury trial and agree to limits on pain and suffering awards and punitive damages. The contract blames patient lawsuits for ‘ever-escalating’ malpractice insurance rates.

Source:  "Contract Care: Patients Promise Not to Sue for Malpractice, Before the Exam" by Mary Jo Layton,  published in The Herald.

Ethics Complaint Filed Against Judge Over His $65M Suit Against Dry Cleaners

Washington, D.C., administrative law judge Roy Pearson Jr. isn't making many new friends with his $65 million lawsuit against a local dry cleaner for losing a pair of his pants. The American Association for Justice (formerly the Association of Trial Lawyers of America) filed an ethics complaint against Pearson last week with the D.C. Bar.

This isn't the first time Pearson has filed tons of documents and demanded payment in a court case. In 2005, the Virginia Court of Appeals denied Pearson's appeal seeking at least $10,000 in spousal support in his divorce from Rhonda VanLowe, legal counsel for Rolls-Royce North America. Pearson wanted VanLowe to help support him because he was receiving unemployment benefits in 2003 before he was appointed as an administrative law judge in 2005.

Source:  "Ethics Complaint Filed Against Judge Over His $65M Suit Against Dry Cleaners" by Brendan Smith, published at Law.com.

Research Verifies Bias Against Plaintiffs in Medical Malpractice Cases

There is no empirical evidence to support the much-publicized notion that the tort system amounts to a lottery for injured plaintiffs, as President Bush and others have long maintained.  If anything, the system appears to be biased against victims of medical malpractice.

Research has confirmed that juries in medical malpractice cases tend to sympathize with the doctors being sued rather than the patients who are suing them, says Philip G. Peters Jr., a law professor at the University of Missouri at Columbia, after analyzing three decades of research on the subject.  His research is published in the May edition of the Michigan Law Review.

Prof. Peters found that doctors win about half of the cases that independent experts who review them believe should result in a plaintiff's victory.  Only about 27 percent of medical malpractice cases are ever heard before a jury, the lowest percentage in any category of tort litigation.

The reasons believed to account for this bias in favor of physician defendants include:

• the doctors' superior economic resources and social standing;
• jurors' willingness to give a doctor the benefit of the doubt in cases in which the evidence is confusing or complicated; and
• cultural prohibitions against seeming to profit from injury.

This research confirms that there is no "epidemic" of frivolous malpractice cases and "runaway" jury verdicts that many elected officials claim are forcing doctors out of practice and leaving patients without needed medical care.  Political rhetoric and fear mongering do not make something true, no matter how much the politicians may want them to.

Source:  "That Malpractice 'Epidemic'?" by Sandra G. Boodman, published in the Washington Post.

More on Bogus National Chamber of Commerce “Study” / Propaganda Attack Against Civil Justice System

As I previously discussed on this blog, the U.S. Chamber of Commerce released an updated “study” last week claiming to rank the best and worst state legal systems in America. But as with past editions, this “study” is a survey of corporate lawyers earning millions of dollars defending their CEOs from being held accountable for wrongdoing and negligence. Similarly, any felon would say that the justice system doesn't work. While the Chamber touts this “study,” the facts tell a different story. 

The Chamber's "Study" Is Bogus:

• The Chamber’s “Study” Is Actually a Survey of Corporate Lawyers Working for Multi-Million Dollar Corporations. Instead of attempting to measure the effectiveness of the civil justice systems in each state, the Chamber instead commissioned a poll of senior lawyers and corporate counsels.  These are the very same lawyers who work every day protecting and defending large corporations when they are sued by consumers or employees who have been injured or abused by the corporation.
• The Chamber’s Own Pollster Admitted that There is No Way to Measure the Fairness of a State’s Legal System. Humphrey Taylor of Harris Interactive, the polling firm that conducted the survey for the Chamber, admitted that there is no way to measure fairness of the legal system in each state. According to the Copley News Service, “Humphrey Taylor of Harris Interactive said the survey is based on the individual responses of the [corporate] lawyers because there is no hard data that can be used to measure the perceived fairness of a state's legal system.”  Nevertheless, the Chamber has mischaracterized the “study” as “rank[ing] the best to worst legal systems in America.”
• After Ranking West Virginia as Having One of the “Worst” Liability Systems, the Chamber’s CEO and Pollster Were Forced to Admit that Only of a Fraction of Those Surveyed Actually Knew Anything About the State’s Court System. When questioned about the methodology of previous versions of the “study” that ranked West Virginia as 49th in the list of state legal systems, the Chamber’s CEO, Thomas Donohue, and the pollster that conducted the survey, Humphrey Taylor of Harris Interactive, were forced to admit that only a fraction of the corporate lawyers surveyed actually knew anything about West Virginia’s courts. According to the Charleston Gazette, “Taylor and Donahue [sic] acknowledged not all of the 1,437 lawyers surveyed knew anything about West Virginia's courts. Taylor said ‘around 107’ said they had direct knowledge of the state. ‘You could argue that's a small sample, but what they keep saying is ‘49th, 49th, 49th,’ he said.”
• Florida Newspaper Criticized Chamber for Mischaracterizing the “Study” in a Television Ad. According to the Tallahassee Democrat , the Chamber’s Institute for Legal Reform sponsored a television ad in Florida that mischaracterized the results of their “study” of state legal systems. The Chamber’s ad included the line, “[a] recent Harris poll ranked the best to worst legal systems in America.” However, the Democrat reported that this claim was “wrong,” noting that the “ad did not mention the Harris poll was conducted among corporate lawyers who have to defend their clients against civil suits.”

Lawsuits Are Not A Major Concern For Business:

• A Recent Survey Published by the National Association of Manufacturers Found that American Manufacturing Companies Ranked the “Fear of Litigation” at the Bottom of Their Concerns. The National Association of Manufacturers recently released a survey of manufacturers in the United States showing that the “fear of litigation” ranked at the bottom of their list of concerns:

“Please rate the following factors in terms of their negative impact on your company's operations (with 1 representing the greatest negative impact and 10 the least).”

2.9   Cost of non-wage compensation
3.5   Cost of materials used in production
4.0   Inability to raise prices
4.1   Energy prices
5.0   Foreign competition
6.1   Taxes
6.3   Cost of wages
6.4   Shortage of qualified workers
7.4   Regulations/corporate governance rules (Sarbanes-Oxley)
7.8   Fear of litigation

• Survey by Business Week Magazine Found that the Threat of Lawsuits is Not a Major Concern of Small Business Owners. According to a survey published in Business Week magazine, owners of small and medium-sized businesses are generally not concerned about the threat of lawsuits: “One of the survey's more surprising results revealed that tort reform -- particularly limiting class-action lawsuits -- is not a major priority.” The survey found that the biggest threats to their businesses are: (1) Rising inflation, 44 percent; (2) The trade deficit and a weak dollar, 40 percent; (3) Energy shortages, 40 percent; (4) Excessive household and/or corporate debt, 29 percent; (5) The growing federal deficit, 28 percent; (6) Poorly prepared labor force/Shortage of skilled labor, 27 percent.

The Number of State and Federal Tort Trials Is Declining:

• Bush Administration Statistics Show that the Number of Federal Tort Trials is Down Nearly 80 Percent Since 1985. The most recent data from the Bush administration’s Justice Department reported that the number of tort (personal injury) cases resolved in U.S. District Courts fell by 79 percent between 1985 and 2003. In 1985, 3,600 tort trials were decided by a judge or jury in U.S. District Courts. By 2003, that number had dropped to less than 800. 
• The Number of State Tort Trials is Decreasing. According to the most recent statistics from the Bush administration’s Justice Department, the number of tort trials at the state level has decreased. These statistics were compiled as part of the Bureau’s survey of state civil justice systems in the nation’s largest 75 counties. Among these counties, the number of tort trials decreased 31.8% between 1992 and 2001.
• “Overwhelming Majority” of Federal Judges Don’t See “Frivolous Lawsuits” as Major Problem. According to a survey by the Federal Judicial Center – the research and education agency of the federal court system – the overwhelming majority of Federal judges do not view “frivolous lawsuits” as a problem. Seventy percent of the respondents called groundless litigation either a ‘small problem’ or a ‘very small problem,’ and 15% said it was no problem at all. Only 1% called it a ‘very large problem,’ 2% called it a ‘large problem’ and the rest rated it as a ‘moderate problem’ in their courts. In addition, 91% of the judges surveyed opposed provisions in the Lawsuit Abuse Reduction Act, which won House approval in the last Congress.”

Source:  American Association for Justice.  As the world's largest trial bar, AAJ (formerly known as the Association of Trial Lawyers of America) promotes justice and fairness for injured persons, defends the constitutional right to trial by jury, and strengthens the civil justice system through education and disclosure of information critical to public health and safety. With 52,000 members worldwide, AAJ provides lawyers with the information and professional assistance they need to serve clients successfully and protect the democratic values of the civil justice system.  Visit http://www.justice.org

Bogus National Chamber of Commerce “Study” Is Propaganda Attack Against Civil Justice System, Which Continues the Chamber's Effort to Eliminate Corporate Accountability for Wrongdoing and Negligence

From the American Association for Justice:

A bogus study released today by the national Chamber of Commerce claiming to rank so-called “anti-business” state legal systems is yet another baseless attack on the nation’s civil justice system in its campaign to eliminate corporate accountability for wrongdoing and negligence.

“This latest propaganda is a made-up survey primarily of corporate lawyers earning millions of dollars defending their CEOs from being held accountable,” said Jon Haber, chief executive officer of the American Association for Justice.  “The Chamber will stop at nothing to destroy the civil justice system in America, which protects the rights of consumers, employees, and shareholders against corporate wrongdoing and negligence.”

As the largest lobby in the country and a front group for corporations seeking to evade accountability for wrongdoing and negligence, the national Chamber of Commerce has led the effort to eliminate access to justice for Americans.

The American Association for Justice today released “The Ten Worst States to Get Sick or Injured In” providing sobering examples of how the national Chamber’s efforts and those of big corporations seeking to evade accountability for wrongdoing and negligence puts corporate greed over public good.

“The Ten Worst States to Get Sick or Injured In’’ shows what America is in store for if the national Chamber and powerful corporations get their way. “Efforts by front groups like the national Chamber to pass laws that allow corporate CEOs to evade accountability for wrongdoing and negligence have eliminated many Americans’ access to justice,” Haber said.   

The 10 Worst States To Get Sick Or Injured In:

1.  Don't Get Hurt in Alabama.
It doesn’t matter how seriously an individual is injured, Alabama law limits restitution for every injury or death caused by the government to what’s available under workers comp. If a local governmental entity is held responsible, no matter how great the loss, restitution is limited to $100,000 per person for injury or death, or $300,000 if more than one person is injured or killed in the same incident – no matter how many people were affected. So the more people hurt, the less restitution they receive. Alabama Code §§ 41-9-70, 11-93-2, 11-47-190.

2.  Alaska’s Big Freeze.
In Alaska, restitution for “noneconomic” losses is limited to the greater of $1 million or the injured person’s life expectancy in years multiplied by $25,000. That may not sound bad until one remembers that people can live 50 years or more after they are injured, and these injuries can include something as serious as the permanent loss of urinary and bowel function. Fifty years of tending to the necessary medical needs – let alone the initial treatment – would not come close to being covered by this limited amount. Alaska Statutes § 09.17.010; State v. Johnson, 2 P.3d 56 (Alaska 2000).

3.  Colorado’s Rocky Mountain Low.
Restitution for victims injured by a Colorado state employee is limited to $150,000. If two or more people are injured at one time, restitution is limited to $600,000, no matter how many people must divide the amount. In such cases, regardless of need, no one person can recover more than $150,000. For many victims of serious injury, this would never even cover the basic hospital costs. Colorado Revised Statutes § 24-10-114.

Colorado's legislators have also imposed arbitrary limits on the amount of restitution that can be awarded to medical patients, injured through no fault of their own. No matter the facts of the case, how badly the patient is injured, or how much the medical care and rehabilitation has cost in the past or will cost in the future, compensation is strictly limited to $1 million. Colorado Revised Statutes § 13-64-302(1)(b).

4.  Florida’s Gator Bite.
Florida has consented to allow its citizens to hold the state and its employees accountable – up to a point. Restitution in such cases is limited to $100,000 for one person and a total of $200,000 per incident, no matter how many people are injured or the severity of the harm. Personal losses exceeding $100,000 "may be reported to the Legislature," which may or may not do anything at all. Injured individuals can always hope the state agency involved bought liability insurance. If not, there is no recourse. Florida Statutes § 768.28(5).

In 1988 state legislators took away judges’ and juries’ right to determine cases of babies with brain injuries injured during birth. If expecting parents want to ensure a potential birthing center can be held responsible for its mistakes, they are forced to search out a “non-participating provider” in Florida’s bureaucratic “FBRNIC” Plan. But more often than not, expecting parents have no idea they could be signing away their child’s future in the often-confusing documents piled upon them during a prenatal visit. Florida Statutes §§ 766.301 - .316

5.  Illinois Hospitals Run on the Cheap.
If you get injured as a result of negligence by a state employee or agent – like a physician working at a state-operated hospital – restitution will be limited to $100,000 no matter how serious the injury or how expensive the recovery. Illinois Statutes Chapter 705 § 505/8(d).

6.  Don’t Get Sick in Indiana.
Legislators imposed an arbitrary limit of $1.25 million for injured patients’ restitution, no matter how bad the injury or how much it will cost to provide future care. Although future care for a badly injured person – like a baby with brain damage – can last for decades and cost millions of dollars, Indiana healthcare providers (in reality, their insurance companies) are liable for only the first $250,000. That’s a sweet deal for the insurance companies, which pass the rest of the bill on to the state taxpayers.  Ind. Code Ann. § 34-18-14-3.

A tragic example of this limit’s impact can be found in the experience of Frank Cornelius, a lobbyist who helped convince Indiana lawmakers to adopt it. After helping pass the limits, Cornelius was the victim of four separate acts of negligence in the course of routine surgery and post-operative care. He wrote a poignant article in 1994 stating that, at age 49, he was confined to a wheelchair, was in constant pain, his marriage ended, and he had amassed medical bills of more than $5 million. Due to the limits, his restitution was limited to $500,000.

7.  Oklahoma’s Not OK for Injured Patients.
Oklahoma legislators have imposed a complicated system on injured patients, which resembles a game of poker more than it does access to justice. For example, a guilty party can make an “offer of judgment” before trial – if they offer to settle the case, forego trial, and, if the injured patient will accept their offer, allow a judgment for that amount to be entered against them. If the patient declines the offer of judgment and proceeds to trial, and does not secure a judgment for at least 1½ times the amount offered before trial, any noneconomic compensation is limited to $300,000. Oklahoma Statutes, Title 23, § 1- 1708.1F-1.

8.  Texas: Dead on Arrival.
Legislators decided to let the families of dead patients fend for themselves. Even if a family has lost its breadwinner, if they sue for restitution, they are limited to an amount of $500,000 (to be adjusted to track the consumer price index). The limit applies to each patient killed, no matter how many medical centers, doctors, or other healthcare personnel were responsible for his/her death. Texas Civil Practice and Remedies Code § 74.303.

9.  Virginia May Be for Lovers, but It's Not for Injured Children.
Virginia has a separate system for cases where babies are brain damaged during birth. Such injuries can result from oxygen deprivation or mechanical injury. Babies who suffer them can be permanently disabled, and may need assistance with daily living activities, up to and including round-the-clock care for life. In some cases they need care long after their parents have died. The bureaucratic “VBRNIC” Program is charged with providing lifetime care for injured babies, related expenses and compensation for a child’s lost earnings. Once a baby is injured, the state’s Workers’ Compensation Commission decides whether the baby will be covered, and the claim is never seen by a court unless the Commission’s decision is appealed. Once the Commission decides to cover a baby, the child and his/her family are prevented from ever holding the healthcare provider responsible for the baby’s condition, or for any harm coming to the mother.

Not only does this treatment go against the basic respect for human life, but it also forces an undue burden onto state taxpayers. The program’s expense is borne not by those who caused the injury, or even by their insurance companies. It is borne by every Virginian who purchases any kind of liability insurance – even homeowner and automobile insurance. What’s worse is that the program costs more to operate than the tort system it replaced, juries and all. Virginia Code §§ 38.2-5000 to -5021.

10.  West Virginia, Almost Heaven?
In West Virginia, as long as a healthcare provider has malpractice insurance with at least a $1 million limit, no victim of his/her negligence can recover restitution of more than $500,000 for a "noneconomic" loss. However, "noneconomic" is defined to include a number of conditions that can have major economic consequences. Such losses include permanent, substantial physical deformity, loss of use of a limb, loss of a bodily organ system, or a permanent physical or mental injury that leaves the victim unable to care for himself/herself independently and perform "life sustaining" activities. West Virginia Code § 55-7B-8.

As the world's largest trial bar, AAJ (formerly known as the Association of Trial Lawyers of America) promotes justice and fairness for injured persons, defends the constitutional right to trial by jury, and strengthens the civil justice system through education and disclosure of information critical to public health and safety. With 52,000 members worldwide, AAJ provides lawyers with the information and professional assistance they need to serve clients successfully and protect the democratic values of the civil justice system.  Visit http://www.justice.org

Compensation Increases for Insurance Executives Give Customers the "Middle Finger"

You have most likely heard the business community's cries of the need for "tort reform."  There are a few variations on the tune they sing, but basically they argue that the cost of insurance is driving them out of business. 

One of the biggest causes for high insurance premiums is not the "litigation crisis" (or one of their other terms du jour), but rather the exorbitant salaries paid to the insurance company executives.  Consider the following:

• The AP reports that Allstate Chief Executive Edward Liddy received compensation valued at $17.4 million in 2006 as it racked up record profits during his last year running the company.  Allstate's profits were an unprecedented $5 billion in 2006.
• Last month, State Farm's Chairman and Chief Executive Officer Ed Rust Jr. received an 82 percent raise after the company posted a record profit last year.  Mr. Rust's income in 2006 was $11.66 million in 2006.  State Farm also had a record profit of $5.32 billion last year.

How much lower would their customers' premiums have been if these insurance companies were not paying such excessive salaries to their executives and/or were not keeping such unprecedented profits for themselves?  Are these truly "good neighbors" using "good hands" or is it yet another example of a greedy corporation giving its customers the middle finger?

Sources:  "Allstate CEO Liddy gets 2006 compensation valued at $17.4 million" by Dave Carpenter, published in The Examiner and "State Farm CEO Gets 82% Pay Raise" published in the Insurance Journal.  Thanks to Steven M. Frederick for his posts at his Kentucky Injury Law Blog on this subject.

The Truth About the "Need" for Workers' Comp. "Reform"

The following is a Letter to the Editor by Jeremy A. Dantin, Esq. published earlier this week which provides an excellent analysis of the purported "need" for workers' compensation "reform" in South Carolina:

The cries for reform of the workers' compensation system have become shrill over the past several weeks. In a letter published in this newspaper on April 5, Mr. Jeff Perry wrote: "Businesses are concerned about the negative impact the workers' compensation process has on their ability to operate successfully. ... Our workers' compensation system is taking us out of the running in recruiting and retaining new business."

On Feb. 4, however, the Herald-Journal featured a column by Secretary of Commerce Joe Taylor, who wrote: "Our state reaped the benefits of a record-setting year for capital investment and job creation in 2006. ... We are performing well above the national average when it comes to job growth. South Carolina  is growing jobs at a rate of 2.4 percent annually, outpacing the national average of 1.4 percent. In fact, there are nearly 151,000 more people working today in South Carolina  than there were four years ago." This is not exactly a portrait of crisis for business in this state.

All you hear about is insurance companies raising rates nearly 47 percent over the past three years. Does anyone stop to think that maybe the insurance companies are the problem? It is really quite simple -- the more rates go up, the more money insurance companies make.

Simply legislating down an insurance company's liability does not make injured people healthy or make those who are unable to work suddenly employable. Someone will always be left holding the bag. The insurance industry, which collects premiums in exchange for holding this bag, doesn't actually want to hold it -- it would rather make more money, hand us the bag and blame lawyers and the workers' compensation system for the whole thing.

Source:  "Workers' Comp" by Jeremy A. Dantin, Esq., published in the Spartanburg Herald-Journal.

Contingency Fees in Personal Injury Cases

The vast majority of personal injury cases in South Carolina and elsewhere are handled on a contingency fee basis.  The following article by attorney Scott E. Smith is an excellent discussion of the use of contingency fees in personal injury cases:

Abraham Lincoln once said, "A lawyer's time and advice is his stock in trade." In essence, asking an attorney for his advice is no different than asking an accountant to set up a business plan or do your taxes, a doctor to examine you, render a diagnosis and prescribe treatment or hiring an electrician to fix the wiring of your home. Nonetheless, many people are under the impression that calling a lawyer and asking a question is free. Although most lawyers will gladly answer preliminary questions regarding a legal matter, when it is determined a lawyer is needed, a fee contract is required.

Most lawyers charge by the hour, as do most professions. Depending upon the lawyer's qualifications, experience and expertise, the hourly rate will vary. However, there are situations attorneys will work for a client on a contingent basis or on a reduced hourly rate and negotiated lower percentage. A contingency fee allows a lawyer to charge a client a percentage of money recovered in behalf of the client in a given case. A contingent fee contract has been referred to as the "poor man's key to the courthouse" because many individuals who are in need or require the assistance of an attorney cannot afford an hourly rate.

Moreover, many legal matters not only require an attorney's time and advice but also monety to advance expenses for police and accident reports, photographs, medical records, court filings and subpoenas, depositions and payment for expert witness fees, common to personal injury and medical malpractice cases. The advancement of these expenses can be substantial and in medical negligence matters can often reach $30,000 to $50,000.00. A client who cannot afford the hourly rate of an attorney most likely will not be able to afford the expenses needed to adequately prepare the case. In personal injury cases the cost are usually much less and can be anywhere from a few hundred dollars to thousands of dollars.

If an attorney agrees to take your personal injury, product defect, medical negligence, class action, drug defect, premise liability, or other related incident that causes serious personal injury or death a contingency fee contract may be the only way of retaining a lawyer. Added to this scenario is the realization that many injured people are unable to work and suffer financial stress as a result of their physical injuries. Those injured individuals or their families are unable to pay expenses to retain experts and pursue their case. For those reasons contingency fee lawyers must advance the case expenses from their own accounts often times expecting those expense to be reimbursed at the time a settlement or judgment is procured in behalf of the client.

A contingency fee contract based upon a percentage of the amount recovered must not be entered into by the attorney or client without careful consideration because if the case is not successful and a settlement or judgment is not procured in behalf of the client, the attorney will have nothing to collect as a fee. This risk is borne by the attorney and adds to the basis of the percentage charged. The more difficult the case, the less likely the case will be successful and therefore, the higher the percentage charged. Nonetheless, each case must be examined on its own merits to determine the appropriate fee charged.

Most personal injury and medical negligence contingency fee attorneys charge from 25-40%. When entering into a contingency fee contract, the attorney and the client must determine the likelihood of success of the case, the amount of recovery if the case succeeds, the prior practices and attitude of the insurance representative or other side with respect to settlement or need for trial, the likelihood of collecting a judgment, the availability of alternative dispute resolution, the amount of time a lawyer is likely to spend on the case, the difficulty of the issues involved in the case, and the expenses of the litigation, whether they be shared or advanced by either the attorney or client. If an attorney is successful on a contingency fee contract the risk of taking the case on a percentage is realized. However, if an attorney is not successful the attorney not only fails to recover a fee but will have cost considerable time that could have been realized if the client had paid by the hour.

A common myth propagated by big business, big media and insurance companies is that contingency fees encourage lawyers to file frivolous lawsuits. However, the opposite is true. A competent and qualified lawyer is not about to take a case on a contingent basis unless the case has merit. Filing a frivolous lawsuit undoubtedly results in wasted time and effort by the attorney with the chance sanctions or attorney fees awarded against the filing attorney if the suit is deemed frivolous.

At our firm, the majority of our personal injury or medical negligence practice is based upon the execution of a contingency fee contract with clients who are unable or would prefer not to enter into an hourly contract. Unfortunately without contingency contracts, the majority of those in the middle or lower socio-economic sector of our community could not afford a lawyer. Of course, this is exactly what insurance companies and big business would like to see happen.

Source:  "Hiring a Personal Injury or Medical Negligence Attorney on Contingency" by Scott E. Smith, published at his Columbus Personal Injury Lawyer blog.  Thanks also to Christopher F. Early of the Massachusetts Personal Injury Blog for his post about this article.

AOL Publishes Propaganda About Our Legal System

Please read the following letter and information from Jon Haber, the CEO of the American Association for Justice regarding America Online's decision to puslish propaganda regarding our legal and civil justic system:

I am writing about something which is currently on the America Online (AOL) website titled "Most Outrageous Lawsuits." It appeared in the money and finance section of AOL and is also prominently displayed on the AOL home page.

We have seen this propaganda before.  The "crazy lawsuits" they describe come directly from groups like Citizens Against Lawsuit Abuse (CALA) and the American Tort Reform Association (ATRA), groups whose sole mission is to dismantle the civil justice system and eliminate accountability for corporate negligence.  In the past, when such front groups have provided examples of "cases," they haven't even been real.

AOL is preying on an unsuspecting public that assumes what is posted on its site is news, all to make the case that they, and other negligent corporations, should not be held accountable for wrongdoing in our courts.

There is good reason for AOL to invest its resources in the misinformation campaign to eliminate the right of Americans to seek justice.  In the past few years, it is the civil justice system that has been the last resort for shareholders and investors to hold AOL accountable for their negligence. The following are just a few examples of the trouble AOL has gotten in:

• Just this week AOL agreed to pay $246 million to compensate the University of California for losses to their pension and endowment funds after the company's stock prices plunged in 2001-2002. The University alleged that AOL inflated it stock price prior to its merger with Time-Warner by misrepresenting its sales, revenues and subscriber numbers.
• On February 26, 2007, Time Warner reached agreements to pay $405 million to settle lawsuits related to past accounting problems at AOL.
• On February 7, 2007, AOL reached a $105 million settlement with the California State Teachers' Retirement System that claimed that AOL executives and bankers had artificially boosted the value of its stocks prior to buying Time Warner.
• In December, 2006, AOL settled a securities fraud case for $50 million with the state of Alaska.
• In September, 2006, AOL members joined together in a class action suing AOL for violating their privacy by posting their search queries online. AOL made public the search queries of over 600,000 members.
• In January, 2006, AOL settled a class action for $25 million after the company was accused of wrongfully billing its customers.
• In 2005, Time Warner settled a $2.4 billion securities fraud lawsuit stemming from their misstatement of advertising revenue on the eve of its merger with AOL.
• In 2004, AOL settled two class actions that claimed it had continued to bill plaintiffs after their subscriptions were cancelled.

The American Association for Justice has made several attempts to get this propaganda pulled from the website but AOL has refused.  We will continue to press but I encourage you to take the following steps:

• If you are a member of AOL tell them to stop running this feature on their website by posting a comment;
• Call the Chairman and CEO of AOL, Randy Falco, at (703) 265-1000 and ask him to take down the information;
• Circulate this information to others who will take action; and
• Send to any legal and political blogs you know of.
• If you have any questions or need information, please do not hesitate to contact the AAJ Communications Department at 202-965-3500 x369.

Thank you.

Jon Haber
CEO
American Association for Justice