Saturday, November 17, 2007

Second round of emailing to law professors

Dear Professor ______,

I am writing in follow up to the email I previously sent you re: John Edwards and plaintiffs' lawyers.

I have contacted The Wall Street Journal to inquire whether it would be interested in publishing an anti-plaintiffs' lawyers letter that is signed by law school tort law professors. The Wall Street Journal has not yet responded to me about this idea. Pending hearing from the Journal, I have done a draft of an anti-plaintiffs' lawyers letter that I would like to solicit tort law professors to sign.

The text of my draft letter to The Wall Street Journal is appended below.

If you would have an interest in participating in this project and signing a letter, along with other tort law professors, for publication in The Wall Street Journal, please read the draft letter to the Journal appended below and advise me of any suggestions or comments you have for the letter.

I have tried to make the draft letter to The Wall Street Journal as a summary form statement of the case against plaintiffs' lawyers that I set out at greater length in my prior email to you (or, if not, I set it out again by appending it below after the draft letter to The Wall Street Journal below).

In considering the case against plaintiffs' lawyers, I think Walter Olson's recent book The Rule of Lawyers to be a superb book length statement of that case, and also his website is an excellent resource.

Please let me hear from you if you are interested in participating and signing, along with other tort law professors, a letter to The Wall Street Journal for publication.

Thank you.

Sincerely yours,

Robert Shattuck

[text of draft letter to The Wall Street Journal]

Dear Sir:

For more than a quarter century, there has been growing controversy about the role of plaintiffs' lawyers in the United States. The John Edwards candidacy in the 2004 presidential election affords an unprecedented opportunity to raise the public's consciousness about this controversy. The undersigned are law professors in the United States who teach tort law and who wish to express, in a public manner, shared views they have on the subject, for whatever benefit that will provide the lay public.

We believe that problems exist regarding plaintiffs' lawyers, and that the starting place is to "follow the money."

It appears to us that the compensation that plaintiffs' lawyers receive is not subject to reasonable external constraints of either being determined in a regular competitive labor marketplace or else being accountable to voters and taxpayers. Instead, the compensation of plaintiffs' lawyers is derived as a result of decisions of judges and juries who are not spending their own money in awarding the compensation, and this, it seems to us, has resulted in significant unmindfulness about what is reasonable and appropriate compensation for plaintiffs' lawyers.

A telling example of this has been the national tobacco settlements entered into in the late 1990's. Under these settlements, there are over $100 billion in payments being made among the affected parties, consisting of the tobacco companies, their customers, and state governments. For their work in the settlements, the plaintiffs' lawyers are being paid over $10 billion, at a per hour rate of compensation that can be only guessed at, but $10,000 an hour is probably not too high, and some estimates have been as high as $90,000 per hour. The tobacco settlements effectively implement a national tobacco policy, including essentially built in cigarette taxes on customers on a going forward basis to be the main source of the payments. Compare the tobacco settlements to the work of Congress and state legislatures that adopt huge governmental budgets and enact laws and governmental programs that impose economic costs and taxes amounting to tens and hundreds of billions of dollars. Congressmen and state legislators, subject to voter/taxpayer oversight, are paid relatively modest salaries, and they not are paid huge amounts, such as a percentage of the dollars affected by their budgetary and other legislative actions. When the work that Congressmen and state legislators do, and the compensation they receive for their work, are compared to the tobacco settlement work the plaintiffs' lawyers did and their compensation from the settlements, one gets a good beginning sense that something is amiss with the compensation of plaintiffs' lawyers.

Much of the work that plaintiffs' lawyers do is similar to work of government policy makers, regulators, investigators, prosecutors and program administrators. These government employees are paid reasonable compensation that is determined under the regular operation of a competitive labor marketplace. In the case of plaintiffs' lawyers, we think it can be discerned in thousands, if not tens of thousands, of legal cases and settlements annually, that plaintiffs' lawyers are receiving very excessive compensation for the work they do. We think this is extremely excessive compensation because of an absence of a regularly operating labor marketplace and because of no accountability to taxpayers/voters, and because judges and juries, who are not spending their own money, exercise no reasonable mindfulness about the compensation that their actions award to plaintiffs' lawyers.

In a situation where compensation is excessive because it is being obtained free from any reasonable and meaningful external constraints and supervision, many deleterious consequences can and frequently flow as a result of human nature. Where there is lacking accountability for compensation, and there are not external constraints, blinding greed can take over in the minds of the recipients, and their overriding goal can become solely the huge compensation, and how to increase the huge compensation, and important societal interests will be disregarded.

It seems to us that this has happened in a number of ways in the domain of the plaintiffs' lawyers.

The plaintiffs' lawyers have sought and obtained a tremendous expansion of their domain, in order to achieve correspondingly great increase in their compensation, with little or no regard of whether society's interest is well or ill served by the expansion. As exemplified by the national tobacco settlements, the plaintiffs' lawyers have sought expansion of their domain by usurping the functions of the legislative branch and by bringing within their purview entire fields of economic, social and tax policy. This allows the plaintiffs' lawyers to apply their legal fee percentage to monetary amounts that are in the tens of billions and hundreds of billions of dollar range. Such usurpation of the functions of the legislative branch, in essence, violates democratic principles under our federal and state constitutions that provide that laws and economic, social and tax policy are supposed to be decided upon and enacted by a democratically elected legislative branch of government. The plaintiffs' lawyers seem to us willing to throw these principles by the wayside in pursuit of the goal of expanding their domain and increasing their unaccountable and unreasonable compensation.

Being unaccountable and with their eyes focused to an excessive degree on the huge legal fees they will receive, the plaintiffs' lawyers do not seem to care what the economic, social and policy decisions are that get implemented in matters they bring within their purview. Their overriding goal is to get policy decisions implemented that give rise to transfers and payments to which the plaintiffs' lawyers can attach their percentage legal fees. Many of these policy decisions would garner little or no support among other members of the society.

Being unaccountable to either a commercial marketplace or to voter/taxpayers who desire their government to be cost effective, the plaintiffs' lawyers are uninterested in cost effectiveness or the application of reasonable cost/benefit principles to the work they carry out if that application would be an impediment to a legal recovery and lessen the amount of compensation they can receive. This has resulted in thousands of ridiculous and outrageous verdicts and legal settlements virtually no one thinks has any defensibility in our legal system.

Because of the huge fees they can earn, plaintiffs' lawyers have a very strong bias in favor of finding and pinning liability on "deep pocket" parties regardless of degree of culpability. This has resulted in significant derogation of principles of justice and fairness that are appropriately sensitive to whether a person's conduct in intentionally wrongful, negligent, or without fault.

In the realm of punitive damages, with the compensation of the plaintiffs' lawyers being based on the amount of punitive damages that get imposed, plaintiffs' lawyers have a financial incentive to seek higher rather than lower punitive damages (unlike criminal prosecutors and government regulators) and this would appear to be an inappropriate incentive that results in injustice being done (when judged against the standards our society applies to prosecutors and regulators who are walled off from such a financial incentive).

With the potential of hundreds of millions of dollars of legal fees being gained for themselves, the plaintiffs' lawyers have no problem in maximizing the use of "junk science" to prevail. The silicon breast implant case is one of the better examples of this.

Most rational human beings place value on uniformity, consistency and fixed standards and guidelines of behavior, but the plaintiffs' lawyers are not interested in those things. They want to be able to affix liability regardless. If a regulatory agency, after lengthy and meticulous consideration, has prescribed that a regulated party follow a specified set of guidelines of behavior, and a defendant has followed them, plaintiffs' lawyers want to have a free reign to get judges and juries to find some additional standard of behavior to subject the defendant to after the fact. Plaintiffs' lawyers want to be able to affix liability on the basis of contradictory behaviors, i.e., liability if the defendant does X (where defendant has done X) and in another case liability for not doing X (where defendant has not done X).

In short, with so much in legal fees to be gained, plaintiffs' lawyers, like other human beings, can be and, we think, have been blinded by greed in going after their monumental legal fees, all to the detriment of societal interests of democracy, cost effectiveness, fairness, justice and rationality. We think this is happening, that the public should be told that it is happening, and that the public should demand that the situation be fixed relative to the very significant harms and risks that plaintiffs' lawyers present and are causing in the United States.

While we strongly believe that the situation regarding plaintiffs' lawyers calls for much in the way of fixing, we are not unmindful that there is a major impediment to the public's obtaining fixes as it deserves. The plaintiffs' lawyers mount a defense of themselves, the expansion of the domain that they have obtained, and their usurping of functions of the legislative branch of government on the grounds that the legislative branch is corrupted and broken and failing to properly perform its legislative functions, and that the plaintiffs' lawyers are needed to step in and provide a fix for the broken legislative branch.

We are sympathetic to the view that the legislative branch is broken and in need of a fix. It may be that our society cannot fix the plaintiffs' lawyers' problem without also providing some fix to the broken legislative branch. We think the citizens should be informed about both sets of problems and that the existence of the plaintiffs' lawyers' problem may be caused in part by the problem of a broken legislative branch. We would encourage the nation's citizens and lawmakers to augment their efforts to fix the plaintiffs' lawyers' problem and the broken legislative branch problem.


__________________, Professor of Law, _________ University
__________________, Professor of Law, _________ University
__________________, Professor of Law, _________ University
__________________, Professor of Law, _________ University

[end of draft letter to The Wall Street Journal]

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