- The Washington Times - Sunday, July 30, 2000

Some of the nation's 1.2 million active lawyers view their profession as the 21st century equivalent of dueling. It's a battle for justice they measure in the number of dollars carted away from the courthouse, settlement table or contract talks.
One Minnesota lawyer even flaunts the image of a freebooting pirate.
Other lawyers, driven by a fervor for politics or profit, wield lawsuits as instruments of social change to govern aspects of life or commerce that elected lawmakers didn't see fit to regulate.
The result, to the eyes of many observers, is a nation that has lost its long reliance on personal responsibility and where courts have become the key to tapping corporate or insurance coffers to pay for injuries even to those who harm themselves.
In the latest record-breaking example, a Miami jury on Friday ordered the five major tobacco companies to pay $145 billion in punitive damages to an estimated 300,000 to 700,000 sick Florida smokers in a class-action lawsuit that took two years to try. If the verdict stands on appeal far from a sure thing the smokers' law firm stands to reap a third of the award, about $48 billion.
It's no wonder that respect for the legal profession is on the wane.
"Lawyers have not always been liked, but in the past they were respected. The loss of respect is recent," says Major B. Harding, chief justice of the Florida Supreme Court.
But from operating room to classroom, big-league locker room to corporate board room even to swindlers' boiler rooms only the most reckless dare attempt anything important without a lawyer at their elbow.
Lawyers playing offense make headlines with creative tactics to beat a criminal rap through a loophole. Or they sue for rich contingency fees, like the $32.4 million prize awarded in May by a federal judge in Philadelphia to the lawyers who settled a fraud case against IKON Office Solutions Inc. for $111 million.
On the other side in every case, a mirror-image team of roughly equal imagination fights to stay even.
With ranks swelling by nearly 55,000 new lawyers a year three times the number admitted 30 years ago the American bar has become almost a fourth branch of government and the United States has become a nation of, by and often for lawyers.
That means big bonuses for 12 or 14 hours of grinding work a day at top-line firms preparing the flood of new stock offerings. But competition squeezes lawyers at lower levels to find new ventures or face tough times.
"There are only so many fleas that can feed on a dog," Ohio Common Pleas Judge Fred Cartolano observed April 12, after jailing a lawyer for stealing $91,000 from a client.
"It's true that because there are so many lawyers in our society, many of them must look around for something to do," says Alan E. Untereiner, a highly regarded appellate lawyer and partner at the District of Columbia firm of Mayer, Brown and Platt.
Indeed, Japan gets along with just 15,000 "bengoshi" serving a national population almost half that of the United States, according to the Japan Policy Research Institute.
Japan has 8,412 non-lawyers for every lawyer; here, the ratio is 227 to 1. Many tasks reserved in America for lawyers are performed by laymen in Japan as they are in Britain and Germany.
But many other nations, particularly in Latin America and the Middle East, have far more lawyers per capita than the United States. Worldwide, lawyers number about 7.3 million, one law review estimates.

A brisk business

Law's old-line establishment, the American Bar Association, perks along comfortably with a steady membership that represents less than one-third of U.S. lawyers.
ABA membership grew just slightly in recent years to a total of 404,698 despite what Executive Director Robert A. Stein calls "powerful sociological forces," stresses that he leaves unexplained. That number includes 45,600 law students.
While earnings at top law firms have shot out of sight, with $155,000 offered to non-partners in the first year out of school, the glut of new lawyers prompts unemployment and forces some to work as temps.
Specialization goes largely unregulated. In most states, a lawyer may claim special knowledge in anything from child custody to bankruptcy. Other prominent specialties are criminal defense and prosecution as well as civil trial law, which covers personal injury and product liability.
Although often framed as humor, public distaste for lawyers has enough substance that Westlaw Directory which bills itself as the premier tool for legal research lists 695 firms and individual lawyers who specialize in suing other lawyers for malpractice.
Only a small fraction of the nation's bar is made up of litigators who joust in court. But that makes little impact on a public looking to place blame for a headlined verdict awarding billions for an auto accident or for a big settlement to someone who poured coffee on himself.
Business has become so brisk nearly 16 million lawsuits crank up each year that the courtroom often is an afterthought. Judges openly push both sides to settle.
Trials are rare. Only about 2 percent of lawsuits ever get that far; the bulk gets thrown out of court at early stages. Most of the rest settle out of court, a process activists call extortion.
"Theft masquerading as law. It's as if district attorneys were paid per indictment or troopers by the speeding ticket," Robert A. Levy says.
Mr. Levy is a lawyer himself. He uses his base at a D.C. think tank, the Cato Institute, to wage a public-awareness battle against posses of courtroom bounty hunters who stand in for government by trying to win concessions that lawmakers can't enact.

Pressure to settle

Like crusaders from the Middle Ages, a few lawyers assume the role of warriors, declaring an intention to drive "wicked" opponents to bankruptcy and beyond.
Recent targets include gun makers, pro-life activists at Operation Rescue, asbestos companies and law student Matthew Hale, who was sued on grounds that his racist views inspired two slayings last July by Benjamin Smith, a follower of Mr. Hale's World Church of the Creator.
"Lawyering is nonviolent dispute resolution," says Barry Fleishman, a plaintiff's lawyer who specializes in product liability in the electric power industry at the D.C. firm of Dickstein, Shapiro, Morin & Oshinsky.
"It's a substitute for the duel," Jim Riddle of San Francisco says.
Both lawyers attended the Dallas meeting of the American Bar Association unit that mingles plaintiffs' lawyers, who file lawsuits, with corporate or insurance lawyers, who defend them.
"It's eerie that we get along so well," says Richard Turbin of Honolulu, who heads the 25,565-member unit.
"There goes my pension," jokes Leo Jordan, former vice president and counsel for State Farm Insurance, implying he'd be in hot water for fraternizing with the trial lawyers who call his company "Snake Farm."
Suzanne Saunders, an insurance defense lawyer from Jackson, Miss., would have none of such humor.
"When I started out in the 1970s it was millions for defense and not a cent for tribute. Now it's millions for settlement," she says, describing her effort to fend off a $150,000 claim by a woman who lost the wrong part of an eyebrow in a wax job.
"I'll defend that one to the death," Mrs. Saunders vows.

Profit and loss

Almost as many lawyers populate the nation as there are inmates of U.S. jails and prisons. So many lawyers, so little work, making some financial ruin inevitable.
The surfeit of lawyers exists despite almost 15.4 million state lawsuits filed each year and a record federal docket last year of 261,000 civil cases, 1.4 million bankruptcies and 60,000 criminal cases.
The most recent federal tax records show zero profits reported by 83,772 of the nation's law firms or 21 percent of the 392,345 firms filing returns in 1997.
Not to weep, though, because the other 79 percent shared a tidy $3.73 billion in profits out of $131 billion in revenue after paying expenses such as rising salaries and bonuses.
For many lawyers, particularly non-partners at top firms, work hours are so demanding that a Los Angeles federal judge recently ruled a lawyer disabled because she couldn't work 16 to 20 hours a day. The specialist in health law claimed her blood pressure rises during trial preparation.
U.S. District Judge Gary Feess decided such schedules are unavoidable in today's law firms and declared Susan Zuckerman, 48, to be disabled. He awarded her $6,250 a month until she turns 66, plus $402,500 in back pay and attorney's fees.
On the Internet, highly paid young associates who yearn to be promoted to partner flock to chat on two competing Web sites both titled "Greedy Associates" at www.greedyassociates.com and http://clubs.yahoo.com/clubs/greedyassociates.
In fairness, a local counterpoint generousassociates.com is designed to raise money for the D.C. Legal Aid Society.

A tradition of distaste

Though hundreds of thousands of lawyers deal with criminal and civil cases that go to trial, the term "trial lawyers" was co-opted in 1972 by the plaintiff's bar in civil cases. The 56,000-member Association of Trial Lawyers of America (ATLA) is now a political powerhouse through contributions in state and federal elections.
ATLA says membership is open to any lawyer "committed to the concept of a fair trial, the adversary system and a just result for the injured and accused" except the ones who specialize in defending personal injury claims, who are the enemy.
D.C. lobbyist Brian Lopina, paid to improve ATLA's image, was embarrassed recently to hear a tape of himself calling the group "one of our more infamous clients." That was his description to a congressional staffer of an organization credited with helping Bill Clinton become president and supportive of efforts by members such as anti-tobacco lawyer Robert Montgomery to raise money for Vice President Al Gore's presidential bid.
Notre Dame associate law professor Patrick J. Schiltz penned a "Dear Law Student" letter last year in the Vanderbilt Law Review that began: "The bad news is that the profession that you are about to enter is one of the most unhappy and unhealthy on the face of the earth and, in the view of many, one of the most unethical." His prescription to handle that went on for thousands of words.
It always was thus, according to Encyclopaedia Britannica. "Sustained over two millenniums, lawyers have also been among the most hated and distrusted elements in society," the encyclopedia says.
Even the American Bar Association agreed after its most recent survey of public attitudes found that just 14 percent of Americans have "strong confidence" in lawyers. The ABA noted the ranking is even lower than that of Congress at 18 percent though higher than the 8 percent who voiced strong confidence in the media.
A spate of novels by lawyers seems to wallow in self-revulsion, most notably best sellers by John Grisham and Scott Turow.
Mr. Grisham describes a lawyer's usual routine as "stall, delay, postpone and file frivolous pleadings."
Mr. Turow, who practices between best sellers, drops lines like "Your beloved client is what people have in mind when they use the word 'lawyer' as a pejorative."

The image problem

The word lawyer was used that way, as a pejorative, in recent political campaigns in Alabama and Louisiana.
Bobby Bright won the mayor's office in Montgomery, Ala., despite an opponent's ad inquiring, "Didn't you know? He's a trial lawyer. He sues people for a living."
But Louisiana voters rejected nine of the 10 candidates for state legislature whose opponents used "trial lawyer" as a criticism.
Part of the image problem comes from the fact that big victories and bad apples are newsworthy. This creates a connection that may not accurately reflect a large profession in which the majority of practitioners never see their name in a courtroom or a headline.
"Oddball cases make the news and the news shapes public perceptions," says Mr. Fleishman, the local plaintiff's lawyer.
And what may be made of the Pennsylvania Court of Appeals order that Maria P. Bomersbach of Media, Pa., pay $46,000 in attorney's fees to lawyer Holly L. Setzler for her work in collecting a $500 legal bill in a condo dispute?
Law firms buy ego ads in the trade press to proclaim huge verdicts, including some won long ago.
Lawyers' bad reputation, says Chief Justice Harding of the Florida Supreme Court, stems from "dubious tactics" and the view that lawyers "are untrustworthy, manipulative and determined to win at all costs."

Tainted by a few?

"It's the fault of nobody but lawyers, frankly. It's up to lawyers to change, and it's up to lawyers to change the image," says Tower Snow, chairman of the San Francisco-based Brobeck, Phleger & Harrison, a top-rung firm of 700 lawyers.
"Many members of the business community condemn the plaintiffs' bar as the devil incarnate. They're not, but they're not the great savior either," says Mr. Snow, a corporate defense lawyer.
"I don't think lawyer image derives from an abundance of lawyer jokes, but I agree with the [Florida] chief justice that the profession of the whole suffers from the conduct of the few," he says.
Jack Olender, the District's king of malpractice lawyers and current president of the D.C. Bar Association, has his own take.
"For those people who hate trial lawyers, the more successful the trial lawyer is, the easier it is to hate them," Mr. Olender says.
Mr. Olender calls lawyer jokes a form of hate speech. He decided for his term in office to hand out a monthly "hero in law" award to buff the image.
Likewise, the divorce lawyers who make up the American Academy of Matrimonial Lawyers seek public-relations points by offering a "guide to preventing divorce" on the group's Web site.
Many top lawyers represent groups seeking public-interest outcomes that others argue are unconstitutional or exploit judicial activism.
They include folks like Clint Bolick of the Institute for Justice, who is fighting an uphill battle for acceptance of school-choice vouchers, or the colorful Wendell H. Gauthier, whose projects include suing gun makers to repay his native New Orleans for the cost of running police and ambulance service in gunshot cases.
Others mount broad class actions on behalf of thousands of clients they've never met, going after shaky door latches, frequent-flyer mileage rules and cigarettes. One case charges that Internet sites that place identifying "cookies" on visiting computers commit theft of hard-drive space.

Rise of 'zero tolerance'

Many ordinary citizens also have learned to live with defensive tactics against legal risks such as the hated but widespread "zero tolerance" policies at schools.
The best-known cases involve students punished for possessing Certs breath mints, Scope mouthwash or Alka-Seltzer antacid. A 15-year-old in Florida was suspended for bringing a nail clipper to class.
And Benjamin Ratner, 13, was suspended for 16 weeks from his Loudoun County school for weapon possession in October after he took a knife from a female student who threatened to kill herself.
"Kids are not going to respect teachers and administrators who cannot appreciate the difference between a plastic knife and a switchblade," says Diane Fener of Virginia Beach, a family lawyer who represents children.
Ordinary Americans also must waive legal rights before having minor surgery, parking their car or paying for a horseback ride for their children. They agree in advance they will submit to arbitration or mediation rather than sue in court if, for example, a credit transaction goes sour.

Selling their services

One factor changed the U.S. legal profession more than any other: allowing lawyers to advertise.
A 1977 Supreme Court decision in an Arizona case, the first of a series of high court rulings upholding legitimate advertising by lawyers, said lawyers have a First Amendment right to publish truthful information about themselves and the legal rights of clients.
Then came television ads, with lawyers in front of police cars with blue lights flashing, explaining how they could help after an accident.
Lawyer ads appear to have convinced Americans that every accident is a rainbow pointing to a pot of gold. The Los Angeles Yellow Pages boasts 75 pages of lawyer ads, making it one of the most competitive cities anywhere for personal injury law.
"Larry Parker got me $2.1 million," brags an ad endorsement from one Cedric Wilson, whose judgment dates to a highway accident in 1984. The full-page ad includes photos of four other Parker clients and settlements ranging from $17,500 to $125,000.
"That's a very small number of lawyers who are doing that," says Judith Kilpatrick, a professor at the University of Arkansas Law School. "Most of the lawyers in our country are ordinary lawyers who tend to be general practitioners who will take almost anything that comes in the door."

LOAD COMMENTS ()

 

Click to Read More

Click to Hide