How much justice can you afford?
BY FLETCHER M. JOHNSON JR.
Someone once said, "If you want justice, go to a whorehouse. If you
want to get screwed, go to court."
This conjures up all things vile and pernicious to the average South
Carolinian. I would suggest there is more than a smidgen of truth therein.
Contrary to propaganda spread by the insurance industry, South
Carolina's courts are not full to overflowing with products liability,
medical malpractice and automobile tort suits that are going to yield
multi-million-dollar verdicts. The vast majority of cases filed in the
Courts of Common Pleas in South Carolina are commercial disputes.
Should you find yourself maimed as a result of the carelessness of
another or the malfunction of a poorly designed and constructed product,
you are in for a long haul before you get satisfaction.
First, you must get a lawyer. If you think you can represent yourself,
be my guest. The person or company who did you wrong, is represented by
one or more lawyers whose job it is to protect the rights of the defendant
in your case.
NEWSFLASH: these lawyers, 99 percent of the time, do not actually work
for the individual or corporate defendant; they are hired by, work for,
and owe their supreme allegiance to the insurance company of the
defendant.
Defense lawyers are put on this earth to advance the cause of their
employers
insurance companies
and
to get out of a case as cheaply as possibly and to make you pay as dearly
as possible. A half-way competent defense lawyer can make dead meat out of
a rocket scientist. No matter how smart you are, you represent yourself at
your own peril.
Once you have accepted the idea that you must have a lawyer, you've
got to find one. You want a lawyer who is competent, willing to be honest
with you and can afford to take your case.
What? Afford to take your case?
Yes, Virginia, you want a lawyer who can afford to take your case,
because too often a case of wrongdoing goes unpunished because the victim
did not have the money to fight the wrongdoer.
To sue the jerk who ran the red light and messed up your back will
cost anywhere from a few hundred to thousands of dollars. But in addition
to the financial costs of bringing a case to court, there are other
considerations.
Time is something none of us has too much of. It takes the average
personal injury case 18 months to two years to get to court. Complex
products liability cases can take much longer. If you're in a hurry for a
resolution, don't bother filing.
To gauge the cost in emotional capital ask yourself whether you have
the heart, guts and the inner strength to see this thing through. If you
think so, great. If you're not sure, forget it.
When you file a personal injury lawsuit, you pit yourself against an
insurance company with millions or billions of dollars in assets. Your
lawyer, who is likely a solo practitioner or member of a small firm, is up
against the biggest and best law firms insurance companies can buy.
The lawyer you hired, either upon recommendation of a friend, family
member or, God forbid, through some advertising medium, makes a living
helping people like you navigate the hazardous waters of the court system.
You'll notice that you weren't asked to write a check for attorney's
fees when you hired your lawyer. He or she gets paid when your case is
over, if you win.
There's much talk these days about whether contingency fees for
lawyers is appropriate. Most of this nonsense is raised by the good folks
at the Insurance Council of America or a similar organization. These same
folks think it's wrong for a lawyer to get paid only if successful in
helping a client gain something. They would have state legislatures and
Congress believe that everyone must pay out of his or her pocket for a
lawyer.
That is all well and good if we were a nation of the leisurely rich.
In reality, those who need legal counsel the most are the working poor and
the middle class.
Trial lawyers think the contingency fee is a small equilizer,
something to help level the playing field between you and one of America's
fine insurance companies. Your lawyer will take your case and expect not
to get paid for a year or more. That's part of the bargain.
Imagine your tax preparer only getting paid if you receive a refund,
or your heart surgeon getting paid only if your bypass operation insures
you perfect health for at least 20 years. At the midwinter meeting of the
South Carolina Bar once again the hue and cry over lawyer advertising was
raised. There was the same whining about how advertising degrades the
profession, how it is an unseemly portrayal of the legal profession as a
mere "business."
This whole dialogue is strange. Mostly the opposition to advertising
is spearheaded by lawyers who do not represent the rank and file
population. It seems that they would cut off the nose of advertising
lawyers to spite their own face.
It goes something like this: If Lawyer A advertises, an injured person
calls her and then hires her. Lawyer A has to file a lawsuit to gain a
reasonable recovery for her client. Lawyer B gets hired by the insurance
company to defend Lawyer A's lawsuit. Therefore, Lawyer B gets work to do
without having spent a dollar on advertising. Why is he not happy with
Lawyer A's advertising efforts?
Did I say Lawyer B didn't spend a dollar on advertising? Technically,
I guess that's true. He didn't buy TV time, or run a commercial on radio.
But he did take out the president of XYZ insurance company and treat him
to a day of golf and dinner and drinks at the country club.
The term defense lawyers use for this is "jollying him up." A day of
"jollying" every six months could easily bring a defense lawyer more than
100 case files a year from XYZ Insurance Company. None of the powers that
be at the South Carolina Bar called this behavior "unseemly or unbecoming
to the legal profession."
All this goes to say, "How much justice can you afford?" And is
justice what you're really after? If so, are you sure you're in the right
place?
Fletcher M. Johnson Jr. is a Charleston lawyer.
"If you want justice, go to a whorehouse. If you want to get screwed, go to court."
