Kia Franklin

What about the little guy?

Big corporate industries are lobbying relentlessly against the interests of ordinary people, even while accepting our tax money as bailouts. That's why I think Eric Turkewitz asks a good question in his recent blog, Who Lobbies for the Victims?

Eric writes:

In 10 days I head to Albany with other personal injury attorneys to lobby the legislature to keep the civil justice system open and available to New Yorkers. Why me? Well, if not me, who then?

You see the insurance companies have armies of lobbyists in state capitols around the nation. So do the massive health care giants, drug companies, and let's face it, Fortune 500 companies all over the place. "Think tanks" and Chambers of Commerce that dream up ways to close the courthouse doors to consumers don't exist without money.

But those who've been victimized by the negligence don't have those voices of influence at their beck and call. Victims become part of this group unwillingly, in unplanned ways. They have no organization. They don't have access to the levers of power. (Read full blogpost here)

For archived posts of Eric's on TortDeform, go here. Go here to visit his blog, New York Personal Injury Law Blog.

Kia Franklin: Author Bio | Other Posts
Posted at 2:02 PM, Apr 20, 2009 in Business Culture | Civil Justice | Right to Access the Courts | The Political Economy of the Tort "Reform" movement
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No one lobbies for the little guy, not even the trial bar. The trial bar does indeed lobby, but its sole purpose is to protect its own sources of income. The little guy MAY benefit as a collateral result of the trial bar's activity, but the chief motivation of trial bar lobbying is to keep that 40% contingent fee intact. I read Turkewitz's blog frequently and while he is not as much of a bottom feeder as many of his brethren, I have yet to see him favor any action that would reduce his take while putting more money in the hands of his clients

And ... everytime an undeserving client collects money from a deep pocket or is offered a "cost of defense" settlement to a meritless claim (and it happens a lot) society as a whole loses

Posted by: Avenger | April 21, 2009 12:16 AM


It is very difficult to debate (productively) about other people's motivations. I personally know many, many plaintiffs side lawyers who are absolutely doing it for the right reasons, and their relatively small paychecks would confirm this. They are doing it to have a fulfilling career, be intellectually challenged, and to protect and represent the interests of people who have little bargaining power compared to huge corporations. I know many lawyers working on the corporate side as well who are motivated by the challenge, intellectual interest, or to make a positive impact on how corporations govern themselves. So it's unfair to make blanket statements about why people do what they do.

That said, I think it's more important to look at the fruits of that motivation and hard work: corporate-side lobbyists get paid to (for whatever personal reasons) push legal policies that, if viewed objectively, often create significant obstacles for ordinary people seeking justice. Those lobbying for civil justice (who ofte aren't getting paid to do it) are lobbying for policies that, when viewed objectively, do make it easier for ordinary people to seek justice through the court system. Just because that reduces the bottom line for corporate America, that doesn't make it bottom feeding--it's called restoring balance to our court system.

Posted by: Kia | April 21, 2009 10:51 AM

but the chief motivation of trial bar lobbying is to keep that 40% contingent fee intact

NY is not 40%, but 33% for general liability. For medical malpractice it starts at 30% and slides down to $10 as the recovery increases, making it one of the lowest in the nation.

As a result of the low med mal fees, many PI attorneys have simply stopped doing it, and many of those injured by malpractice have been unable to find counsel. The result is an increased level of immunity for those that have committed negligent acts and a shifting of the burden of loss to the victim.

Posted by: Eric T. | April 21, 2009 8:27 PM

and slides down to $10

That should read 10%. You can read more of the fee issue in NY here, and at the associated links:
Medical Malpractice Economics

Posted by: Eric T. | April 21, 2009 8:41 PM

Eric: The filing of a weak claim is legal malpractice. Can you tell us what fraction of your claims produces any payment?

Posted by: Anonymous | April 23, 2009 11:07 PM