September 2001

Two Cents' Worth

by Mark A. Panitch, Editor

Every time I hear another lawyer joke, I cringe. It’s not that the jokes are so cruel — a lot of humor is based on cruelty. And it’s not that the jokes aren’t funny — a lot of them really are very clever. No, what bothers me is the underlying message in the jokes that lawyers are members of a parasite class, sucking blood money out of our society and gumming up the system. And what really bothers me is that so many people seem to believe it. And what really, really bothers me is that so many lawyers seem to be encouraging that belief.

Consider. Only a few weeks ago, during a Rose Garden ceremony at the White House, President Bush was lobbying for his version of a patients’ bill of rights by slamming lawyers. Not just any lawyers, of course, but trial lawyers. He said that "junk lawsuits" filed by trial lawyers would force health-care prices out of reach for the average person. As we all know, "trial lawyers" is code for plaintiffs’ lawyers. "Junk lawsuits" means contingent-fee cases.

Of course, President Bush is entitled to his opinion. That it is unsupported by any credible evidence is irrelevant. What is important, though, is that his statement reflects the continuing strength of a movement — going back 200-plus years to the American Revolution — to limit access to our courts. For as long as there has been a United States, there have been those who looked upon the Revolution and felt pangs of buyers’ remorse. No longer subject to British rule, they look back to England with affection close to longing. For them, American courts and American justice are just too democratic.

A version of this battle is played out every year in every county when the public criminal-defense budget is debated. Gideon v. Wainwright (372 U.S. 335, 1963) resolved whether accused are entitled to counsel. The cost and quality of that counsel when the public pays for it remains an open question. But the criminal courts are really pretty small potatoes.

It is in the civil courts, where the financial stakes can be astronomical, that the battle is hardest fought. In England this has always been the realm of the elite, kept that way by the high cost of admission. The so-called "English rule" is simple: If you play you pay. The losing side is obligated to pay the costs, including attorneys’ fees, of the winning side. Likewise, English jurisprudence frowns on contingent fees. Once again wealth rules; if you can’t afford to lose you shouldn’t be in the game. Despite their rule about the losers paying the winners’ costs, it is "unprofessional" for English lawyers to get paid by their clients only if they win. The point is that the law courts in England are mainly there to settle property disputes — and most people have no property.

In America, and particularly in Washington, we take a much more expansive view of justice. The courts are here to settle disputes among people, and everyone is supposed to be welcome. Under the American rule as followed in Washington, "a court has no power to award attorney fees in the absence…" of certain specific factors. Young v. Teti, 16 P.3d 1275, 78 (Wn. App. 2001) citing to Dayton v. Farmers Ins. Group, 124 Wn.2d 277 (1994). Even when the case isn’t very good and it is dismissed, our courts do not award attorneys’ fees. In 1983, the WSBA itself took the position that "the English system of providing attorneys’ fees to the winning side of every lawsuit would have a chilling effect on the public’s use and access to the judicial system as a means of settling legitimate disputes." See, State ex rel Quick-Ruben v. Verharen, 136 Wn.2d 888, Sanders dissent at 136 Wn.2d 906 (1998).

In fact, "access to the courts" has become a kind of shibboleth. Our Supreme Court has championed access to the courts in a variety of ways. The most public was the creation of the Access to Justice Board. Many current and former justices have played an active role in the access to justice community. Recently, Chief Justice Gerry Alexander told UW law school graduates that access to our civil justice system should be a right.

During the past year, WSBA President Jan Eric Peterson created the "Proud to Be a Lawyer" campaign and the "local hero" program in which attorneys around the state were honored for their contributions to their communities as well as to the Bar. These honorees practice in many areas of law, and they come from small towns and big cities.

So what’s the problem? Well, it seems that we are all proud to be lawyers as long as it’s just among ourselves. But when it comes to the rest of the world, we seem to run for cover. That’s the only way I can explain the resounding lack of response to President Bush’s crack about "junk lawsuits" and the constant business-community refrain about those nasty trial lawyers.

If we were all really proud to be lawyers, we would all be writing letters to the editors of our local newspapers and giving speeches at our local service clubs about how our civil justice system really works.

Business and insurance lawyers, especially, would explain that the contingent-fee system is the only way that average people can get access to our courts. They would remind their clients and friends that Rule 11 and our WSBA ethics rules both prevent "junk lawsuits" and provide serious sanctions for attorneys who do bring truly frivolous cases. And they would acknowledge that an attorney working on a contingent-fee basis has more apparent incentive to settle a case than one billing by the hour. They would denounce the next ignorant loudmouth who complains about the "million-dollar verdict" for spilling a cup of coffee. Hopefully they would even ask how much he would charge to have scalding hot coffee spilled on his genitals, and what three different genital-area skin grafts are worth. And finally, they would tell their friends and clients that our accessible civil justice system is one of the greatest accomplishments of our American experiment in democratic self-government.

When the defense trial lawyers stand up to defend their trial-lawyer colleagues — and with them our open, accessible civil justice system — then I’ll really be proud to be a lawyer.

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