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How far will lawyers go?

DN Staff

January 9, 1995

4 Min Read
How far will lawyers go?

"No injury should go uncompensated," or so many Americans believe today. Someone must be held to blame; hence, someone should pay. Although it would be nice to expect financial renumeration for injury, however incurred, it is simply fiscally irresponsible and socially impossible to accomplish this goal.

In California, a burglar fell through a school skylight while attempting a 1:00 a.m. illegal entry. Dropping some 20 feet, he sustained some nasty injuries. He later retained an attorney and brought suit against the school and skylight manufacturer on the grounds that the skylight bore no warning that it was of insufficient weight-bearing strength.

The legal system affects product manufacturers, because they, and other deep-pocket defendants such as municipalities, have money and so are targeted. Lawyers rarely sue indigents.

How far will lawyers go to extract money from corporate defendants? In Texas, where judges are elected, often with the plaintiffs' bar's financial support, huge verdicts and sizable settlements are the rule in civil litigation. Duval County enjoys a reputation as a county particularly conducive to high plaintiffs' awards and so is popular with the plaintiffs' bar.

Legal wrangling in Texas. Survivors of a bloody 1991 shootout in a Taco Bell near Dallas sued the restaurant chain. According to the National Law Journal, the plaintiff's counsel was unsatisfied with the case's Dallas County venue, where the judicial climate is more reasonable. Yet, even in the liberal venue laws of Texas, which permits a suit to be brought in any county where a party resides, Dallas seemed the required litigation site. The millions of dollars at stake, however, proved a natural stimulus to the lawyer's ingenuity.

Colleague sued. The assailants who had gunned down the plaintiff were serving 40 to 50 years in the state penitentiary and were insolvent. So the plaintiffs' attorney, John Cracken, retained his own attorney to represent state prison inmate Jerome Green, one of the accomplices. His colleague was the actual shooter. Green sued his colleague--in Duval County.

Although Green had always lived hundreds of miles from Duval County, for some mystical reason he decided that when he's released from prison around the year 2030, that's where he will move, and he signed a statement expressing this intent. This permitted Cracken to sue Green in Duval County. Green's attorney, hired by and paid for by Cracken, did not dispute this shaky basis for jurisdiction in Duval and filed a two-paragraph answer. Hence, the Duval County Court accepted jurisdiction. The same day, Cracken gained venue in Duval County for his clients and sued Taco Bell in Duval, since Texas state law provides that once venue is found for one defendant, anyone else can be added as a defendant.

The moral? Tort litigation is a $100-billion-a-year business which may threaten a corporation's existence. The stakes are enormous. Local favoritism isn't limited to Texas. Understanding the vagaries of litigation and its financial risks should motivate companies to design and manufacture quality products, properly label and warn the consumer, and in the event of litigation, retain competent counsel to protect their legal interests.

Q. How is it that the plaintiff's bar has become so successful in their litigation of cases against corporations?

A. First, the American Trial Lawyers Association (ATLA) is a very well organized group of plaintiff's attorneys with a central repository of corporate documents and strategies to exploit weaknesses of companies that have been the subject of litigation. Secondly, some jurisdictions favor plaintiffs, particularly those where the judiciary is elected with the generous funding of plaintiff-oriented counsel. Out-of-state corporate defendants often appear to be short-shrifted in those legal environments.

Q. What can our company do to fight tactics of what many consider to be unscrupulous or over-zealous plaintiff's attorneys?

A. When you hire legal counsel, instruct them to take a fair, but very firm, position with the plaintiff's counsel and to vigorously resist any unfair, unethical or questionable tactics during any stage of the proceeding. A good source of relief is the Board of Bar Overseers for any particular state, since that organization is designed to reign in, reprimand, or even disbar unethical attorneys. Your counsel should not be reticent to report inappropriate conduct.

Q. Are there any other cures to overcome such situations?

A. You may wish to consider adopting the English System, where the loser pays all of the costs, including legal fees. This can be a very substantial penalty. It certainly provides a practical deterrent to groundless or speculative litigation. At any rate, this measure could prove to be a partial answer to the problem.

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