By Jack Cumming
In a blur, suddenly, a car whipped into my path. I hit the brakes. It was close. Adrenaline continued to rush to my head as the danger passed. With post-traumatic clarity, I saw that it was a Porsche. It was coming out of the Porsche dealer.
The Porsche accelerated, bluish smoke pouring from its dual exhausts. The driver took off like a bat out of hell. As he disappeared, I caught the license plate, California COURT6. Aha, I thought, a trial lawyer.
Fair or Unfair?
Perhaps that’s unfair. Maybe it was a Judge. I don’t think so, though. Judges are expected to be deliberative and to be considerate of others. Trial lawyers often bring their egos to their job. Imagine a lawyer who advertises a phone number of 1-800-8Million (1-800-800-0000) accompanied by a client testimonial, “My lawyer got me $8 Million.” Compensation for an accident or mistake shouldn’t be like winning the lottery.
The plaintiffs’ bar, also known as the trial bar, often works on a commission basis, referred to by attorneys as a “contingent fee.” If the lawyer contracts with a plaintiff who believes themselves to be wronged, the contract often … though not always … can provide that, if the case is successful and the plaintiff wins a settlement, then the lawyer receives a commission of, say, one-third of what the plaintiff is due. The plaintiff doesn’t have to pay the attorney in advance, and the attorney is paid nothing unless the plaintiff wins the case.
That hefty success commission can be a powerful incentive to attorneys to bring lawsuits. Typically, as well, if the case is dismissed or if the attorney fails to prevail, the attorney is out-of-pocket nothing more than trial-related expenses and time spent. It is rare for attorneys to be penalized for bringing specious lawsuits and, with very rare exceptions, defendants, including corporate defendants like senior living enterprises, have to pay all the costs of their defense. Defendants are under pressure to cave to specious litigation.
An Unjust Imbalance
The imbalance of consequences incentivizes businesses to settle a case, contrary to what justice might require. If they don’t settle, they face the cost of defense. Moreover, there’s the potential unfair damage to the enterprise’s reputation.
And, too often, there is the chance that a miscarriage of justice may result in an unfounded adverse verdict. Thus, it can become little more than legal process, rather than the pursuit of justice.
Remedies?
What might be done? Ideally, there would be no litigation because providers might offer such a well-oiled dispute resolution mechanism that no one would pursue litigation. In truth, that almost is the case. Litigation is rare in senior living.
A second approach to avoiding litigation would be for industry trade associations to promote proactive, robust regulation so that thorny disputes would be readily resolved by sound regulation. Unfortunately, it’s only human to resist regulation. No one likes to be told what to do, and senior living providers are no exceptions. Most senior living trade associations start from a reactive approach to proposed legislation.
Reforming Incentives
That, then, brings us to the lucrative practice of plaintiffs’ attorneys. Legislation to require plaintiffs’ attorneys to pay the costs of the defense if they fail to prevail, as is the case in some foreign jurisdictions, but rarely in the U.S., could go a long way toward minimizing ill-founded litigation.
The trial bar, however, is influential and will oppose any such elevation of their responsibility. I would love to see legislation to promote such attorney responsibility coupled with a prohibition on pre-dispute mandated arbitration. That might be a practical trade-off in a world in which many put self-interest before the common good.
Can We Fix It?
Rethinking the litigation challenge would take collaborative effort to bring people together to set aside one-sided pursuit of self-interest toward an embrace of commonalities. We live in a divisive era. Could senior living, with its commitment to an aging demographic facing potential decline into helplessness, show America the way to get past today’s divisive politics? Let’s keep the dream alive.
