To the Editor:
Regarding Terry Eastland’s review of The Litigation Explosion, by Walter K. Olson [Books in Review, September], does Mr. Eastland really think trial lawyers need instruction in understanding litigation? Does he think they do not understand that when they sue someone the defendant has two lawyers against him? The plaintiff’s lawyer is obliged to milk the case to the maximum; but the defense lawyer has precisely the same aspiration. The defendant (or his insurance carrier), caught between these two piranhas, faces the dilemma of whether to pay extortion to settle or face the equally extortionate costs of defense and depend upon the response of a potentially capricious jury to the plaintiff’s mail-order “expert” witnesses. The defense lawyer is the plaintiff’s best friend because the higher the cost of the defense, the greater the pressure to settle. Guilt or innocence becomes irrelevant, because it is just as costly to defend in either case. Even an innocent man eventually finds that it’s cheaper to settle.
Regardless of outcome, the defendant always pays. It’s only a matter of how much, and which lawyer gets the larger piece of the pie. . . .
In a settlement the defendant (or his carrier) pays the defense lawyer’s fee and costs, and the plaintiff’s lawyer’s fee (one-third or more of the residual settlement after his costs are first deducted). Of the total paid by or on behalf of the defendant, the injured party may receive as little as 10 percent, and this often comes many years after the fact. I know this from my 37 years as a medical specialist during which I was the victim of four meritless suits that dragged on for an average of five years each.
When trial lawyers cry that contingency fees protect the rights of the poor to sue, in reality they are concerned about preserving their rights to ride roughshod over many innocent defendants who have absolutely no rights in this process, except to pay the bills.
Trial lawyers also know that there is a better way—binding arbitration. The victim can present his claim to a panel of legitimate experts. Compensation is paid, if indicated. Lawyers are unnecessary. Such a system would more equitably compensate the deserving without rewarding the frauds, speed up the process, and vastly reduce costs to which lawyers inordinately contribute.
Trial lawyers really do understand all of the above. They just do not want the rest of us to understand it. Why should trial lawyers want to give up this terrific scam voluntarily?
Joel I. Hamburger, M. D.
Southfield, Michigan
