Our jury system has long served to level the playing field for average
Americans with an infinitesimal fraction of the resources of multinational
corporations. Yet, every year, the insurance and manufacturer lobbyists
stampede state capitols like hogs in search of the slop bucket, squealing
that greedy, out-of-control trial lawyers (meaning
' trial lawyers) are killing the American Dream, putting American companies
out of business and throwing hard-working Americans out on the street.
The business lobby solution is always the same: regulate the damages a
jury can award and cap contingency fee contracts. But in the corporate
world, as in George Orwell's
Animal Farm, "Some are more equal than others." In one breath pro-business
talking heads propose taking away a jury's right to award an appropriate
amount of damages for corporate misconduct and taking away the right of
victims to contract with their attorneys over fees, and in the next breath
those same talking heads mouth capitalist virtues of an unrestrained free
market in which entrepreneurs compete to provide the best service for
the most affordable fee.
Obviously, the business lobby skews logic and indeed the principles on
which this country was founded. At first blush, what should be good enough
for a corporation, which has no soul, should be good enough for an individual
American. (In fact, as a matter of law, corporations have less legal rights
than individual Americans -- at least such is the case now). Try to imagine
the uproar if the Congress tried to pass legislation limiting a corporation's
right to seek damages in business litigation, or the fees it could pay
to seek the best counsel available for such legislation. Obviously, the
business lobby wants a "more equal" (read "lopsided")
playing field with the victims of corporate misconduct.
These obvious flaws in logic and principle never sat well with me. So,
too, the notion that
lawyers represented a market inefficiency.
Since 1988, I've sat in hundreds of depositions. I've always wondered
how corporate America benefits from having sometimes up to 25 defense
lawyers sitting around a conference table, waiting their turn to ask canned
questions from a dog-eared and shopworn outline of standardized questions.
When not asking questions, a few are listening, but in my experience the
majority are either reading USA Today or tapping away on their laptop
computers. The going rate for asbestos defense lawyers is around $250
an hour. The typical deposition lasts at least eight hours -- my own Dad's
recent deposition in California consumed about 40 hours of his life. There
were about 15 defense lawyers at my Dad's deposition.
Let's do the math. Fifteen lawyers billing out 40 hours each at about
$250 per hour, not including travel, preparation and post-deposition review,
amounts to $150,000. And for that corporate America gets to learn whether
Dave Worthington was exposed to asbestos? (He was. Tons of it.)
So it was with a mixture of delight and disgust that I learned from an
insurance adjuster the truth about who's really goring the asbestos
cash cow. According to the Connecticut Valley Claims Service, a prominent
insurance claims management provider with decades of experience representing
asbestos companies, every dollar consumed by asbestos litigation is divided
"Cost accountants have estimated that of every dollar spent in asbestos
37 percent of this is spent on defense costs (indemnity and litigation costs), 27 percent goes to plaintiffs' counsel,
and the remaining 36 percent goes to the actual plaintiff." See
The War-Torn Landscape: The Asbestos Impact athttp://www.cvcsc.com/Articles/asbestosimpact.htm
Let's look again. Of every dollar spent, only $.36 goes to the victim
-- the party who needs the money the most and too often doesn't live
long enough to put their compensation to work. A whopping $.37 goes to
the lawyers, adjusters, medical experts, lobbyists, actuaries and other
apologists whose job is to serve and protect the Beast. And, contrary
to the knee jerk talk radio pundits and flim-flam artists who appear nightly
on Fox News, the trial lawyers, who assume all the risk in fighting the
Beast on behalf of injured victims, take the smallest cut.
But you never hear any "tort reform" crusaders talk about capping
the exorbitant fees charged by the asbestos defense lawyers.
Roger G. Worthington