In criminal cases, we have a constitutional right to a lawyer – free of charge – if we can not afford one. We call this a “court appointed lawyer”. However, in a private civil case, there is no such right. You have to hire a lawyer to represent you. That lawyer will typically charge you by the hour against a sum of money called a retainer. Once that retainer is gone, they will ask you for another retainer. If you can not pay the additional retainer, then the lawyer will typically withdraw from the case (no one can afford to work for free for very long, if at all). If you are the defendant in a civil case and you have insurance which would cover the claim, then the insurance company will pay for your lawyer (even though that lawyer’s client is really the insurance company and not you). So, what do you do when you have been injured and you can not afford to pay a lawyer by the hour to represent you?
When I was still in my last year law school, I had already taken the bar exam in February and was waiting on my score and diploma. Most of my class work was done. I was headed back into the U.S. Army and was working as a prosecutor in the Fulton County District Attorney’s Office in Atlanta. I got to try my first jury trial by myself under the Third Year Practice Act, which is a law in Georgia that lets some law students work as lawyers, but only in a governmental setting and with supervision. I asked the senior prosecutor if he knew where I might could find some paying work and he told me he had a former student who was looking for someone to clerk in their office. I applied and interviewed and soon found myself working in a real law office with real cases, not the fictional ones we argued in law school. These were real people: divorces, real estate closings, and some personal injury cases. I had always wanted to do personal injury cases, but you have to have some trial experience first, so I had planned to try cases in the Army to begin with, because I had some rank already, I understood the structure of the Army, and due to my prior service I would make a bit more money than I would have in a civilian prosecutors office (the other best place to get trial experience). Eventually, after a few years, I planned to become a civilian trial lawyer.
One day we got a call from a guy who said he had slipped and fallen outside a convenience store and had hurt his back. This fellow had been given the run around by the insurance company and needed some relief from his pain. The lawyer who took the call did not think much of the potential claim, but told me that I could bring the guy in and talk to him, if I wanted to, and see if I could make something of it. The man and his wife came in and he was in pain (“fire” running down his leg, which I supposed was sciatica) and explained to me that he was walking into the convenience store and stepped on a piece of clear cellophane wrapper (that he did not see because he was making sure no one came out the door and ran into him as he reached for the door handle). He said his foot slipped out underneath him and he went backwards and landed on his butt on the concrete sidewalk. His wife was right behind him and said she saw the whole thing. I asked the guy what he had slipped on and he said when he was laying there he picked up the wrapper and it was a Banana Flip wrapper. I asked him why it made him slip and he said it had like a cream coating on it and was partially dried but had like whipped crème on it. Because I was a student and therefore a connoisseur of gas station food, I just so happened to know exactly what a Banana Flip was. For those of you who do not know, it is basically a very greasy banana pancake filled with banana cream and folded over in half. It probably would take about four years of heavy cardio in order to work off those calories in a gym.
I talked it over with the lawyer, who agreed to let me sign them up as clients and do a demand letter. In the coming weeks, the man got much better and I wrote a letter to the unreasonable insurance adjuster, demanding a specific amount of money, included the medical bills and records, and threatened to file a lawsuit (which I would had to have a real lawyer sign) in the event said cash money was not forthcoming. A property owner in Georgia has a statutory duty to inspect their premises and to act in order prevent harm from dangerous conditions. When the couple came in to get their check, the man was very happy. I was proud of my work. My first real injury case. You can see, if the man had not had me (or the real lawyer) willing to do battle, he would not have gotten a dime. Without a law degree and a bar license on their side, this man and his wife were like two titmouses trying to negotiate with a pack of timber wolves. I am sure the insurer also told the store they had to clean up their sidewalk outside and that they could not let trash lay around, because that was hazardous to their customers. I was hooked for life right then. I knew that eventually, when I had gotten good enough in trial, that I would do personal injury cases. I would sign those demand letters and lawsuits and I would bring justice within reach of the injured and downtrodden.
Faced with injury, unpaid medical bills, lost wages, and an insurance adjuster who could not have possibly cared any less about their plight, this man and his wife were faced with a denied claim. They did not know the law. They did not know whether they had a viable claim or not. They felt abused and powerless. They had done nothing wrong. He was just a hardworking guy going into the store to make a purchase. They were proud and upset enough at the injustice to try to get a lawyer. They could have gone out and hired a lawyer by the hour. Thirty years ago that might have cost them $150 or more an hour to get a good one, to get a knowledgeable and skilled trial lawyer who held “the key to the courthouse” in their hand. But a lawsuit and jury trial are massive undertakings and the lawyer’s time would have quickly exceeded even their net worth. It wasn’t a big case and they were not wealthy by any stretch, but to them this was the most important thing going on in their lives at the time. The man needed to get well enough to work again and they were out of money for doctors. Without a lawyer on their side, an insurance company would never pay the claim and had, in fact, already denied it. This man and his wife were not a threat to a big insurance company who could afford to hire a team of lawyers to cut them and their little claim up into pieces. Some people try, but there is no way that a normal person can learn the many court rules and the substantive and procedural laws well enough, in a short period of time, to successfully fight a court case being defended by real lawyers. Insurance companies only fear juries and the only way to really get to one is with a lawyer on your side, and preferably a good one at that.
BUT when that couple came into the office, I held the other key to the courthouse – the contingency fee contract. You have seen it on TV as “No win/no fee” or “we don’t get paid unless you get paid”. Basically, a contingency fee contract is when a lawyer agrees to take the case, work it up, pay the out of pocket expenses, etc., and then IF the case results in a monetary recovery, then the lawyer gets a percentage, typically from 33 and a third percent up to 50%, depending on what type of case it is and the likelihood of a monetary recovery. These contracts are required to be in writing and the terms are spelled out. If the lawyer loses the case or no money is had, they lose the value of all of the time they have put into it, and typically all of the expenses they have paid out, which can be enormous – regardless of what type of case it is. The key to this type of contract for the client is to actually get a lawyer who will go to court and try the case, if need be. I can tell you right now that many lawyers who represent people on contingency fee contracts have never seen the inside of a courtroom unless it was when they were filming a commercial for tv. Insurance companies know exactly who will and will not take a case to trial and that effects what they are willing to pay in cases. I can recall numerous contingency fee cases that I have taken over the years that were not the type of cases that usually result in a lawsuit, but I took the cases because I knew that without me the people would have gotten nothing. Those may have not been the best business decisions I have ever made, because every case I take is extremely time consuming, but I usually took those cases because something about it upset me. I do not like to see other people abused or treated badly just because they are unable to bring a lawsuit for themselves.
In the early days of my practice, insurance companies hired law firms to defend their cases and they paid them on an hourly basis, although at a reduced rate. That helped to settle cases because insurance companies got tired of spending the money defending them through trial, where they might lose even more money. Some years ago, insurance companies figured out they could save money by having lawyers to work exclusively for them and now there are numerous law firms that are wholly owned by insurance companies, because it is cheaper to have these lawyers as employees than it is to pay outside counsel by the hour. Insurance companies also realized that Plaintiff’s lawyers were settling most of their cases and that they were paying too much or making it to easy, so they decided to largely stop the practice of easily settling cases. They decided to make Plaintiff’s lawyers try more cases. Because a smaller value case can take just as much time as a big case with catastrophic damages, many Plaintiff’s lawyers refused to take small cases and if they took them at all, they settled them cheaply rather than go to trial. In the end, insurance companies were able to save money (make more money as profits) by reducing defense costs and by reducing what they paid out to settle cases. Sadly, many “trial lawyers” were anything but, and were cowed by the fact that their cheese was moved. I have always said that if a lawyer is unwilling to try the case, then they should not take it. Things can certainly happen during the investigation or pre-trial phase, or even after suit is filed, that reveal weaknesses in a case that a lawyer can’t overcome, but that is not what I writing about here. Again, liability insurance companies fear a jury at trial and little else.
It does not end here though. To make things worse, along came “tort reform”. Supported by an absolute pack of lies and phony statistics, a national political movement that was well funded by insurance and big business political donors. TV ads were bombarded upon the American Public warning us that out doctors were leaving, and the sky was falling, and evil plaintiff’s personal injury lawyers were getting rich off a broken and unfair tort system, blah blah blah. This campaign was one of fear based upon neuroscientific research that was specifically designed to make the American public be afraid and believe that something had to immediately be done about “runaway juries” and that “tort reform” was the best and only answer. Just like Hitler’s propaganda ministry convince the German people that Jews, books, and privately owned guns were causing the downfall of the fatherland, our own government bought into the lies (or were bought themselves) and helped convince people, even judges, that injury cases were evil and that there would be hell to pay if they did not try to stop it in its tracks. As a result, some really horrible laws were passed in many states, including here in Georgia, that took away people’s constitutional rights. Tort reformed Judges were installed on courthouse benches by politicians whom they owed allegiance to. It was one of the saddest things I have ever witnessed. It was dire days. We simply did not have the money or the power to defeat this tort reform nonsense. It swept over the land like a tsunami.
BUT, fear not, I have good news! Despite all of the industry changes and the difficulties encountered, there is a group of plaintiff’s personal injury trial lawyers who will still take a case to trial. New trial methods have been developed to defeat tort reform in the jury room. I have been proud to be a part of that for many years now. I am proud that we did not give up the fight. I am glad that people smarter than me figured it out. Thousands of us over the whole country have decided that enough is enough. More cases are going to trial now. The results have been great. Young lawyers getting out of law school are wanting to represent injured plaintiffs and families whose loved ones have been lost due to the violation of safety rules. Older lawyers who had become discouraged by tort reform are trying cases again with a rekindled vengeance. We are taking the old case law to all trial judges, all across the country, and reminding them of the purposes of tort (injury) law, as well as the right to a fair and impartial jury trial in a civil case. Justice will be served. We will not be denied.
For now, there are still two keys to the courthouse. We are the only country on earth that still allows civil jury trials – A trial in our community, before ordinary citizens, so that they can decide what conduct should and should not be tolerated. Without civil jury trials, I think (know) that our communities would be much more dangerous places. A jury trial is a priceless check and balance, an individual right that we have as citizens. A right people have fought and died for, so that we can maintain it for our children. If you believe like I do, our state and federal Constitutions are divinely inspired documents. Many times over my lifetime, I have sworn to uphold and defend both, even at the cost of my own death. The right we have to a civil jury trial is indeed a matter of life and death. It’s just that dirt simple.
I hope you will join me in the defense of our Constitutions. Honor that jury summons – it is a high privilege to serve. Educate yourself on the falseness of “tort reform”. Help keep our communities safe. Hug a trial lawyer (just not the ones who defend insurance companies though, because I hear they do not like to hug).
BOTTOM LINE: We must always have two keys to the courthouse, because if we lose one of them – then only the very rich and powerful can afford to seek justice.
NEXT UP: HOW TO SERIOUSLY MESS UP YOUR CLAIM FOR PERSONAL INJURY
Until then, may we love one another and treat each other as we would wish to be treated ourselves.