TorteDeForm

Justinian Lane

Thoughts on the 9/11 Settlement From Professor Charles Silver

A reader submitted this story to me this morning:

If there are good characters and bad characters in this drama, the workers' lawyers are wearing white hats.

True, the lawyers did not agree to represent the workers for free. Their retainer agreements entitle them to contingent fees equal to one-third of the recovery plus expenses, about $200 million. New York law expressly deems fees of this level "fair and reasonable," except in medical malpractice cases, where a lower cap applies.

The workers were smart to hire lawyers at the prevailing rate. To understand why, consider one fact: The city paid a high-priced D.C. law firm more than $200 million to defeat the workers' claims.

All told, the lawyers spent about $30 million of their own money with no guarantee of repayment. Why so much? Because for six years the city and its co-defendants fought the workers tooth and nail. For example, I'm told that in the 12 cases scheduled for trial in May, the defendants filed more than 200 motions to dismiss. Scorched earth tactics make lawsuits expensive. They also force plaintiffs' attorneys to expend enormous amounts of time.

Source: The 9/11 lawyers deserve praise: Don't arbitrarily slash their fees

As Professor Silver points out, the defense lawyers got paid for every hour they worked, and had no out-of-pocket expenses.  Plaintiffs’ lawyers don’t have that advantage.  Nor do plaintiffs’ lawyers have anything to gain by dragging out the litigation.  Food for thought.

Justinian Lane: Author Bio | Other Posts
Posted at 11:27 AM, Mar 23, 2010 in 9/11 & Ground Zero
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Comments

I doubt that the plaintiff attorneys are wearing any white hats in this matter; however, to the extent that they get money out of Bin Laden and the estates of those who commandeered the airplanes and used them as missiles, I say go get 'em.

To the extent that they are going after the deep pockets, rather than the parties 100% responsible for the tragedy, thus shafting the taxpayers of New York City and the State of New York, and the millions of stockholders who own stock in the businesses they seek to loot, they ARE the bad guys and I wish them a pleasant ride down the River Styx when they reach the afterlife

Filing a Motion to Dismiss, means that you think the plaintiff claims have no merit. If you believe that to be true, then you are morally obliged to file such motions and I would be disappointed in defense cunsel that did not file such motions. That fact that it jacks the plaintiff's costs up is of no consequence - I've never seen this website decry the wasteful discovery requests that plaintiffs make to defendants in their fishing expeditions, so I see no need to waste sympathy here

Posted by: Avenger | March 23, 2010 9:47 PM

If an attorney is "morally obliged" to file a motion to dismiss if he or she thinks a case has no merit, is the reverse true? Are attorneys "morally obliged" not to file motions to dismiss if they believe the opposing party's case does have merit?

Of course not. Attorneys are ethically obliged to do whatever is in the best interest of their clients.

If morals had anything to do with it, defense firms wouldn't raise all the boilerplate BS defenses they routinely raise. Nor would they force plaintiffs to spend money to hire expert witnesses when they're going to concede causation.

That said, is it fair to say that you and I can agree that tort "reform" measures like damage caps shouldn't protect Bin Laden and his cohorts? I personally think any "reform" measure should have an intentional tort exclusion.

Posted by: Justinian Lane | March 29, 2010 10:25 AM