Why so much fuss about the trial lawyer?

by Myron Cherry

We all know from our biblical history that Moses is often referred to as "the Law Giver." The rule of law is a firm principle in our heritage. So, it’s not surprising that the United States originally opted for the rule of law versus the rule of man as seen in the American Revolution, the Constitution and the Declaration of Independence. Those that are trained in the rule of law are called lawyers.

When disputes arise under this system, such as different interpretations of a contract or business deal, an accident, or even the break-up of a family or business, the parties involved submit disputes to an independent body that produces a result which is accepted as fair. That’s the system. The people who represent the parties in dispute are called trial lawyers.

John Adams, the third President of the United States, was a trial lawyer before he became President; so was Abraham Lincoln. Why have trial lawyers today, in some circles, gotten a bad reputation? It’s the age old questions of "whose interest is threatened?" and "whose interest is protected?"

I will provide an example. Let’s say that you purchased a defective product such as a toaster, flashlight or a product that is worth a relatively small amount of money in the marketplace. What happens if the manufacturer doesn’t do anything about it? What if your local authorities don’t care either because they are too busy or think it is an insignificant amount of money? Worse yet, what if the manufacturer is a big shot in the community and no one wants to go after him?

Under the current system, a lawyer could represent you and anyone else who purchased this defective product to seek and obtain damages for potentially thousands of people. In this situation, the lawyer is providing a service recovering damages for the class of people who were adversely affected. They are also performing a regulatory function by forcing the manufacturer, in the course of the lawsuit, to fix the defective product. State or federal authorities, depending upon the administration, often do not take an aggressive interest in protecting consumers and so here the trial lawyer fills the void to recover money and assist to make the next generation of products safer.

In this context, as well as in any lawsuit, the lawyer is essentially a messenger who protects the rights of an individual person that can’t afford to bring the case on themselves.

If by chance IBM would sue GM, they would also hire lawyers to represent their interests in court. They are known as trial lawyers.

The real issue in America today regarding trial lawyers is whether we will continue to allow lawyers to represent interests that threaten the establishment. If the manufacturers and the insurance companies of the world had their way, the courts would be shut down and only the wealthy would be able to hire trial lawyers with the result that the insurance company who cheats his policy holder (when is the last time your health care company paid for your doctor visit fully and promptly) and manufacturers still have no incentive to improve defective products because the government isn’t interested or is too busy to ferret out every wrong. Often times trial lawyers don’t even get paid unless they recover something, which means they take a big risk; a process which also insures that only the good cases are really brought.

So the next time you hear or read about someone slamming the trial lawyers, ask yourself what kind of society you would live in if the courts were closed to disputes? Usually the countries where courts are closed to disputes are countries without democracies where none of us would want to live.

If you have a particular subject that you would like me to cover in this column, send me an e-mail. I would be interested in your comments. Until then, be well and good business.