Plaintiffs’ Attorneys Aim to Alter Public Perception About Them and Their Work

September 27, 2005
Steven T. Taylor

James McHugh decided to become an attorney because he wanted to become a prosecutor. “I wanted to put the bad guys away,” says the trial lawyer with The Beasley Firm in Philadelphia. But he couldn’t land a job at the US Attorney’s Office and was told that the next best thing was to become a plaintiffs’ attorney for a reputable law firm, which he did.

One of the first cases that he “prosecuted,” as he calls it, profoundly affected him. In the mid-1990s, he represented the family of an 11-month-old boy who had contracted spinal meningitis. Doctors at a Philadelphia area hospital had failed to detect obvious symptoms for several days.

“All he needed were antibiotics, and he would have been as normal as anybody else,” McHugh says. “The doctors blew it. He’s now ten years old. He can’t go to the bathroom by himself. He can hardly communicate with his parents. I can’t even think about it without getting upset.”

When he recalls the story, McHugh does, indeed, get genuinely upset; he struggles to keep his emotions in check. Through his and his partners’ efforts, he was able to get a settlement that will take care of the boy financially for the rest of his life....

A consultant with an East Coast consulting firm, who works for both defense and plaintiffs law firms and has heard McHugh tell this story, says he thinks that it helps turn a commonly held stereotype of trial attorneys upside-down.

“The next time someone tells me that trial lawyers are nothing but a bunch of ambulance-chasing hacks motivated only by money, I’m going to tell them that they’re badly mistaken,” says the consultant, who asked to remain anonymous. “What motivates 99 percent of them is what motivates Jim McHugh: a desire to help people in need.” ...

It seems the same degree of passion that motivates them to fight for their clients also fuels their efforts in the battle to ward off what they see as a misguided and unjust tort reform campaign.

“Tort reform is a misnomer,” says Paul Geller, a trial lawyer who handles many class-action lawsuits in the South Florida office of Lerach Coughlin. “It’s not about reforming our system; it’s not about fixing our system. It’s about insulating large and powerful corporations and insurance companies from having to sufficiently pay when they hurt people.”

Wrong Side of the v.

Geller wasn’t always a plaintiffs’ attorney and in fact early in his career defended many of those “large and powerful corporations and insurance companies.” Like many students who graduate from law school, especially those like Geller who ranked in the top percentage of his graduating class, he was courted by the large, corporate law firms. Like a lot of grads carrying a load of school loan debt, he was seduced by the lucrative salaries that the megafirms offered.

“I was the quintessential corporate big-firm lawyer [at a large New York firm], defending large blue-chip companies in all sorts of complex litigation,” Geller says, adding that he was under no illusion that often those companies were guilty of what they were accused of. “When companies are sued for contract violations or securities fraud or consumer fraud, more times than not they did it.”

After working against and getting to know several plaintiffs’ attorneys, Geller became envious of their motivations: “to fight for what is right and not conform to the corporate mold.” He realized that in representing XYZ Corp. v. Consumer-Victim that he “usually was on the wrong side of the v.” Consequently, in 1996 he quit the New York firm and opened up the Florida office of a Philadelphia plaintiffs’ firm. (Later he started his own firm, which recently merged with another plaintiffs’ partnership.) In the nine-plus intervening years, Geller acknowledges that corporate defense attorneys are winning the PR spin, that trial lawyers are generally regarded by many Americans as pariahs.

“When I tell someone that I’m a class-action lawyer, nine times out of ten they will view that as a negative thing,” he says. “One time out of ten they will say, ‘That’s great. You stand up for the little guy.’ That’s troubling. But I sleep well at night and feel good that I don’t have to make excuses for what I do.”

That negative perception is something many trial lawyers simply must learn to deal with. In Chicago, the Corboy family has been taking on the pharmaceutical and medical industries, among others, for decades in defending plaintiffs who claimed that they’ve been victimized. From their firm Corboy & Demetrio, both Philip Corboy Sr. and his son Philip Corboy Jr. have made quite a name for themselves as premier litigators.

Resolute Foes

Sometimes that name can be an inconvenience, an annoyance. On a few occasions, Phil Jr.’s wife Margaret has taken her kids to doctors’ appointments in their well-to-do community of Winnetka, IL, and has been given less than stellar treatment from the medical people who feel that Corboy has somehow harmed their profession.

Corboy is not phased by this sort of attitude either. “It comes with the turf,” he says. What does bother him is the duplicity he sees in other people. “Some of my Republican friends will try to give me a hard time,” he says. “I tell them, ’You guys are all for tort reform, despite that you don’t know the facts. But this is America and I won’t tell you not to have an opinion.’” “‘I want to remind you, however, that every time you get into a legal problem or one of your relatives gets into a car accident or has a problem as a bad result of hospitalization, dammit, who’s the first person you call? You call me. You can’t be two-faced about it and say some poor family on the west side of Chicago should have tort reform stuffed into their face but not those of us in Winnetka. We’re more legitimate than they are.’”

Caring About Who Wins

In Washington, Michael Lieder, a trial lawyer with Sprenger & Lang (which also has offices in Minneapolis) says that the stereotype that people have about plaintiffs’ attorneys is “a misperception” brought on by “people with a political agenda who want to get certain legislation passed.”

Lieder spent some six years early in his career at a corporate defense firm but left after realizing his ambivalence in the courtroom. “Other than the intellectual satisfaction from winning, I didn’t really care who won or lost,” he explains. “What did it matter whether the money was in one big corporation’s pocket or another? Now I care who wins or loses, partly because our money as a firm is at risk but mostly because, even if I were an outsider looking at both sides of the types of cases we take, I’d want our clients to prevail in the lawsuit.”

Furthermore, Lieder, who has won many big cases that carry broad legal ramifications, says he doesn’t think that most people realize just how risky his firm’s contingency business is. After all, if he and his partners don’t win a class-action suit, they don’t get paid a dime.

“If we were to lose two of our big class-actions in a row, my guess is that our firm would go belly up,” he says. “So it’s always risky. If we were in it for the money, there are much easier ways of doing it. Most of us would make more money as defense attorneys. We could easily be earning $500,000 a year or more at big firms.”

He says that what motivates him and his partners is that they care about their clients and the issues that they are litigating. Todd Smith, president of the American Trial Lawyers Association, thinks that this is a common motivation among plaintiffs’ attorneys.

“The vast majority of trial lawyers care most about what got them interested in the profession in the first place: the rule of law, the Constitution, the right of trial by jury,” says Smith, who is also a partner at Chicago’s Power Rogers & Smith. “We all need to make a living, but I think that we are driven by other things, like a deep sense of the correctness and the history of the law.”

No “Judicial Hellhole”

In January of this year, Smith and ATLA discovered that President Bush was coming to Illinois’s Madison County to launch his campaign to limit medical malpractice damages awards. The county, just across the Mississippi River from St. Louis, was cited by the American Tort Reform Association last year because of its reputation for big awards, and the President wanted to use the area as a stage to seek a federal cap of $250,000 for pain and suffering malpractice damages.

Although the President and his cause received a lot of media attention, and while Congress may succeed in this and other tort reform measures, Smith and ATLA may have won a small battle in January by being very vocal in their opposition. The trial lawyers group joined forces with consumers and victims groups to refute the “hellhole” reputation of the county and to renounce the reform efforts. They knew they needed “to get the truth out,” Smith says.

“In Madison County, from 1996 through 2003 when records were available, there were 11 cases that went to verdict in medical negligence,” he says. “Only four were for plaintiffs. And only one of those four verdicts was a case in which the cap would have had any effect. So it’s baloney that this is a place in which juries are running wild finding against the medical profession.”

ATLA and the other groups held press conferences, bought advertisements, organized rallies, and, most importantly, met with the editorial boards of several newspapers. “We wanted to make sure that Bush didn’t have the stage alone to spout misleading statements about the civil justice system,” Smith says.

Ultimately, there were about 100 objective news stories in major national and regional newspapers, some 50 broadcast stories, and close to three dozen editorials across the country. Smith is satisfied with the news reports because they usually included ATLA’s arguments. And, he was delighted with several of the editorials, including ones in the Boston Globe and Los Angeles Times, which tended to oppose the reform measure.

The Globe’s op-ed piece started this way: “The problem with medical malpractice is not that a jury occasionally awards $1 million in pain and suffering damages to a victim but that so much malpractice occurs in the first place.”

The area’s biggest newspaper, the St. Louis Post-Dispatch, had recently supported tort reform but reversed itself in a subsequent editorial, written after ATLA representatives met with the editorial board members. “They saw the facts that we delivered,” Smith says.

Corboy, who serves on ATLA’s board of governors, praised the association’s efforts during and immediately after the president’s visit. “When we get proactive, sometimes it works out for us,” he says, calling the $250,000 cap measure unreasonable.

“Lawsuits are supposed to be for compensating individuals and their families. They also have the residual effect of punishing corporations that are wayward, that don’t care about the consumers who buy or use their products. The larger the award, the more the corporations hear and get the message.”

Tort reform, he adds, has always been a way of muffling the ability of plaintiffs to get fair and reasonable compensation. Lieder concurs and says that in the long run many companies that lose lawsuits actually benefit because of the institutional changes that the litigation can create.

“Now, it may be painful at times for the defendants, and they may not like it,” he says in what may be an understatement of the year, “but those changes might put into place various procedures that make, for example [in the case of employment-related litigation], promotion and pay decisions fairer. Ultimately, that makes the company a better company.”

Of course, it’s not likely that most members of corporate America and their lawyers would agree with that assessment; they don’t see costly litigation as a form of self-enrichment. They say that these lawsuits cost the U.S. consumer by driving up prices and result only in lining the pockets of plaintiffs’ attorneys with millions of dollars.

Not surprisingly, Paul Geller has something to say about who’s driving up costs. “The typical case should last six months. But the average case takes two to three years,” he says. “The reason is because the defense attorneys often don’t turn over key documents. We fight over every shred of paper. Then after three years, if we’re successful, we seek a settlement. Then we collect our fee, and they spin it like the plaintiffs’ lawyers are making all this money. Well, it’s the defense attorneys who got paid by the hour for three years and helped caused the case to linger so long.”

Given the current political climate, it’s quite likely that more tort reform measures will become law, which could threaten trial lawyers’ livelihood, or at least force them to make changes. Corboy says that he and his partners have recently been taking on two to three commercial civil cases a year, and if tort reform does cut into their business, they’d consider representing more companies in such matters.

“Those same people,” Corboy says, “who hated us when we only represented plaintiffs for personal injury lawsuits come to us now and say, ‘My corporation has a dispute with ABC Corporation. They’re stealing our trademark. And we need your help.’ So if tort reform became a reality, we’d take on more of these cases.”

But like other plaintiffs’ attorneys, Corboy will continue to oppose tort reform as it’s currently being discussed: “We do what we can to help persuade the senators and members of Congress that the Republican majority that’s trying to push this is wrong and clueless in their attempts.”

Reprinted with permission, Of Counsel, Vol. 24 No. 6, June 2005.

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