April 22, 1994

Personal Injury

I don't think that you can make a lawyer honest by an act of the legislature. You've got to work on his conscience. And his lack of conscience is what makes him a lawyer.

Will Rogers, 1927

If you look in the yellow pages of a large telephone directory under attorneys, you will find a lot of half-page ads for lawyers who specialize in personal injury. Some advertise on prime-time television. They can well afford to do so, because personal injury is a very lucrative branch of the law. I am told that a lawyer usually gets 30% of the settlement, which often runs in the millions of dollars. With a weak case, the settlement could be only half a million. The lawyer can live very well on just one of those cases per year, even after expense.

Many personal injury law suits are legitimate. Some are reasonable and many are exorbitant. They are exorbitant because it is easy to convince a jury that any injury is worth much money, especially if the party being sued is a corporation.

Personal injury specialists have available to them so-called experts who they call on to testify on the medical and economic aspects of the case. They may make more money for doing less work than they ordinarily do at their profession. After some practice, they become professional witnesses who know how to be completely frank and dishonest at the same time. They know that if they want to continue cashing in on the business, that they have to keep the attorney happy --and they do. A professor of economics at a local college can make more on the side than he can make teaching, if he testifies in enough cases. The work is something that any accountant can do, but a professor impresses a jury more than an accountant does. A physician who no longer wants to work for a living can also do quite well.

The problem with the people who are defending themselves against these law suits is that it is hard for them to get really expert witnesses. A professor in some branch of medicine is too busy to be bothered spending a day in court, particularly on a case that will probably be lost. To get such an expert witness, it has to be a multi-million dollar case and they have to pay him handsomely. Most physicians consider law suits a pain in the butt. On a case that may end up with a judgment of under a million, the plaintiff is way ahead of the game settling out of court, even though he knows that he is being taken.

Many cases are legitimate. A person who is paralyzed for life, or loses a limb as a result of negligence is entitled to a fair settlement. Unfortunately, many cases are basically fraudulent, particularly those where back and neck injury is involved. It is impossible to prove that someone wasn't really injured, or that he could have recovered if he did what his doctor told him to do. It is very easy to convert a simple back strain into a permanent disability. Once the victim gets the money, he can recover at leisure and enjoy the things that money can buy. In this case, the defendant has to prove his innocence, rather than the other way around, as in criminal cases.

The usual jury in a civil suit consists of 12 people. Nine votes is all that is necessary for a verdict. If four people adamantly insist on a verdict on one side or another, they can have their way, particularly if they don't care how long they have to stay. Any jury member who is in a hurry to get home is over a barrel. The lawyer knows this and tries to stretch the trial out as much as possible, even at the risk of antagonizing some members of the jury. In a criminal case a defense attorney needs one juror to hold out for the verdict he wants, which will hang a jury. In a civil case, he needs four people who will hold out for the judgment that he wants. It's comparatively easy to eliminate potential jurors who feel that many of these cases are rip-offs.

After serving on such a jury, I feel that I have been an accessory to larceny, even though I tried my best for a just verdict. I will never serve on such a jury again.

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