Closing Argument

A trial lawyer's commentary on his practice, developments in the law, and occasionally, life in general.

Name:

I hope you enjoy my blog. I am a trial attorney with offices at 100 West Monroe, Suite 1900, Chicago, Illinois. A large portion of my practice involves the representation of persons who have been injured due to auto accidents, work accidents or medical malpractice. In addition, I also also represent a select number of clients with business, commercial or employment disputes. If you wish to talk to me about a case, please contact me at my office, 312/346-3715 or email me at markploftus@aol.com

Friday, March 19, 2004

Contact me at markploftus@aol.com

I wanted to be done with the tort reform propoganda, but it is in the news so much now that I have to comment on some of the stuff I see. On March 16, 2004 Treasury Secretary John Snow said "runaway lawsuits" were costing American jobs, and also urged an overhaul of personal injury lawsuits.

One of the news organizations obtained draft notes for the speech, which is apparently the opening salvo in the Bush administration's move to dramatically alter our legal system. Snow called for Congress to take steps to "rein in" personal injury lawyers and actually had the nerve to liken the situation to recent abuses by corporate big shots.

Couple of comments about Snow...

This guy is either incredibly ignorant, tragically ill-informed or both. The guys at Enron and Tyco stole money to fund lavish lifestyles. Their actions bankrupted large companies and put thousands of people out of work. And those same employees saw their retirement plans go up in smoke as company assets were used to pay millions in civil fines.

I am a trial lawyer. A good portion of my practice involves the representation of injured people. After 18 years I continue to think that what I do is good and noble work. Most of my personal injury clients can't afford to pay me on an hourly basis. So I have contingent fee agreement - - I don't receive a professional fee unless there is a settlement or a verdict. I am required to fund these cases from inception through trial. Depending on the complexity of the case, I may have $40,000 to $50,000 of my own money invested in a case at the time of trial, exclusive of the cost of my time. I recently learned that a friend of mine had invested over $250,000 of his own money in a particularly complicated medical malpractice case.

Typically, I only file cases where the defendant(s) has a liability policy in place. That means that the costs of his defense, and any judgment will be borne by the insurance company and not the defendant. The lawyers hired by the insurance companies are paid by the hour. If there is any sort of flaw in my case, the defense lawyers are quick to file multiple motions to have the case dismissed. The case is regularly reviewed by a judge to ensure that it is moving along at a satisfactory rate.

This notion of "frivolous lawsuits" in my experience is a fiction created by the insurance industry. In my experience, juries over the last 20 years have become much more sophisticated. The law requires I prove negligence and injury before my client can recover. And jurors read those instructions and insist I prove each and every element of my case before considering damages.

And contrary to what you may see or read, juries in injury cases aren't moved these days by "soft tissue" cases where the injury lis limited to subjective, generic injuries like neck sprain. In those cases you would be lucky to recover your medical expenses I don't take those cases anymore, and most trial lawyers I know don't take them. We don't take them because the inevitably small verdict makes taking the case a poor business decision.

In more serious injury cases, jurors are instructed to award fair and reasonable damages if the plaintiff has proved negligence. The jurors hear the evidence, go back to the jury room and argue about what should be awarded. The resulting verdict is the collective wisdom of 12 members of the community. In Cook County, Illinois, where most of my cases are located, it will typically take some 24 to 36 months to get a case to trial. So on those cases that go to trial, it will be some 2 to 3 years before I get a fee. And if there is an appeal, it could be 4 years or more.

When I first started my practice, I filed some iffy cases, where the liability was a stretch, or the was no significant injury. I don't do that anymore. I don't want to burden the system with silly cases.

Nowadays, I only want cases where there has been an obvious injury and resulting harm. I work very hard to investigate the case and put it together in such a way that a jury will see the harm and try and remedy it. I still get a thrill when even in a small way I help correct a wrong. And I don't apologize for taking a fee when that occurs. I am proud of what I do for a living. And I would be happy to inform Snow of that fact if and when he gets his head out of his ass.