Justinian Lane

Looks like Oregon needs to follow Colorado’s example

Just the other week, I posted about how smart it was for civil justice advocates to fight damage caps ballot measures with salary cap ballot measures:

In Colorado, an initiative to limit lawyers’ fees was answered with a barrage of proposals that would limit executive compensation, cap real estate sales commissions and raise the maximum amount of damages payable as a result of shoddy construction, among other things. All the initiatives were eventually withdrawn.

This was a smart tactic.  We need to learn a lesson from this and use it in the future.

Source: My Take on the "Tort Wars" | Tortdeform

Now it looks like they need to do the same thing in Oregon:

The Oregonian covers the activism, much coming from familiar advocates of smaller government, lower taxes, and less organized labor, Bill Sizemore and Russ Walker. The Statesman-Journal also has a story, suggesting as many as 14 initiatives making it to the ballot. Two of the qualified measures (as detailed at the excellent Secretary of State's online database):

The first, Initiative 51, limits a lawyer's contingency fees to 25 percent for the first $25,000 and 10 percent above $25,000. The second, Initiative 53, requires the court to sanction attorneys who file frivolous pleadings in civil actions. 

Source: | PointOfLaw Forum: Land of the Ballot Builders

I find it shockingly hypocritical that "reformers" fight for mandatory arbitration clauses on the grounds that the government shouldn't interfere with the freedom to contract, but have no issue with limiting the freedom to contract with attorneys.  Any "reformers" out there want to take a side on this one?

Justinian Lane: Author Bio | Other Posts
Posted at 11:35 AM, Jul 07, 2008 in Civil Justice | Contingency Fees | Mandatory Arbitration
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I'm on the record opposing interference with freedom of contract, even when it comes to attorney contingent fees.

Posted by: Ted | July 7, 2008 10:13 PM

Good to see you're consistent, Ted.

Posted by: Justinian Lane | July 7, 2008 10:52 PM

The problem is there is no give and take or negotiation in attorney fees except in the very largest cases - it may as well be a monopoly as far as the average claimant is concerned. Every plaintiff lawyer I've encountered in Florda charges 33% if suit not filed and 40% if suit is filed. Some never even attempt to negotiate on behalf of their clients - they simply wait until the statute of limitations draws near and then file suit to ensure their their 40% cut

As I have said manyu times the trial bar is big business. Big business is amoral - it's focus is on maximizing profits, not doing good or doing harm. The trial bar is exactly the same except many of them pretend to be performing a public service. That prestense crosses the line between amoral and immoral

Posted by: Paul W Dennis | July 7, 2008 10:53 PM

I find it shockingly hypocritical that "deformers" want to ban mandatory arbitration clauses on the grounds that consumers have no meaningful choice, but have no issue with the fact that 99.9% of plaintiffs can't get into court without binding themselves to giving away 1/3 of their damages.

Posted by: Lawyer | July 7, 2008 11:23 PM

That's not true at all, lawyer. Some attorneys advertise they take cases for 25%, and I know of one who undercuts them all at 19%. Other attorneys will work on a hybrid-arrangement, and most attorneys are happy to work on a billable-hour arrangement. I personally worked on a case where the client declined a contingent-fee agreement and payed us an hourly rate. He was fortunate enough to be able to afford to do so. If you walk into an attorney's office with a case of clear liability and good damages, he or she will work with you on the percentage... and if not, some other attorney will. I've personally seen one attorney do a 10% agreement. He wasn't happy about having to go that low, but 10% of something is still better than 100% of nothing.

Posted by: Justinian Lane | July 7, 2008 11:57 PM

There are also many consumer products that don't require that disputes be arbitrated. The point, if I understood you correctly, was not that ALL consumer disputes with vendors must be arbitrated, but enough such that consumers don't have a meaningful choice. So goes the legal profession for representing plaintiffs.

Just as Verizon, AT&T and T-Mobile far outweigh Virgin Mobile, so do the 33% plaintiffs lawyers outnumber the others on the fringe charging less. Not to mention the fact that for just about every trial lawyer charging 25%, there is one that charges 40% if the case goes to trial. (Heaven forbid a trial lawyer actually has to go to trial.)

Posted by: Lawyer | July 8, 2008 11:13 AM

Does Virgin Mobile not have a mandatory arbitration agreement? Thanks for that info. After my Sprint "we charge you illegal taxes and it's your problem" debacle, I went to AT&T. If they have a Blackberry plan, maybe I'll move to Virgin once this contract expires.

And I agree with you about trial lawyers going to trial; shame on those without the backbone to do so.

Posted by: Justinian Lane | July 8, 2008 11:22 AM

I've tried many cases including some that should have settled. Many people will complain about their attorneys recommending a settlement, but I will tell you about one case in particular where the client turned down $50k for a verdict of past medical bills of $3,000 and her being 75% comp neg, so a quarter of $3k instead of $50k?

Some folks need to listen to their lawyers. Just like you would listen to an electrician with wiring, a plumber for pipes, a pilot to fly a plane, yadda, yadda, yadda. Otherwise do it yourself and see how much you'd screw it up.

Posted by: Steve | July 8, 2008 4:11 PM

Oh, absolutely Steve. Whenever we had problem clients like that, we always made them sign an agreement that they were proceeding to trial agains out strong advice. $50k with 75% neg and $3k in bills? Sounds like a generous insurer!

Posted by: Justinian Lane | July 8, 2008 4:19 PM