Lawyers not ready for reform

Andrew Spiropoulos
Guest viewpoint

May 29, 2007 10:13 pm

— Like many in my profession, I dreamed of being a lawyer from a young age, inspired by both the Atticus Finches of fiction and the Abraham Lincolns of real life. I have never lost my love for the law and the pride I have in the noblest practitioners of it.
Yet despite my love for the law and for genuine lawyers I am bitterly disappointed by the recent actions of some in my
profession.
When the Oklahoma Council of Public Affairs asked me four years ago to help study and develop recommendations for the reform of our state’s civil justice system, I naively believed that most of the leaders of the profession here in Oklahoma sincerely would participate in the effort to make our system better. Granted, I never expected that the plaintiffs’ bar would consider the issue with an open mind, especially the bottom-feeders who would be most hurt by reforms discouraging meritless and profiteering litigation.
I did, however, expect those whose personal financial interests were not directly hurt by sensible reform to sincerely grapple with remedying the accumulated flaws of our system.
My expectations were, of course, utterly unrealistic. The profession here in Oklahoma has shown little or no interest in reforming itself.
Upon reflection, I really should have known better. One of the lessons always I have tried to teach law students is that one danger of legal education is that as one learns to think like a lawyer, one sometimes forgets how to think like a human being and a citizen.
Some lawyers, for example, have the unfortunate tendency to equate justice with their ability to win a lawsuit or force a beneficial settlement — in other words, a good rule is one that helps me win.
Good citizens know better than to equate justice with what benefits them. Indeed, serving the common good means sometimes you will be worse off.
The best lawyers, of course, always have been able to fight this tendency to let their adversarial interest overcome their judgment about what the common good requires. In particular, lawyers serving the public are expected to — and often do — put aside their personal interests in winning a case and instead seek justice, win or lose.
Unfortunately, even the state’s attorney general has forgotten he is supposed to care more about justice than winning cases — even if winning means that government coffers will be enriched.
In April Attorney General Drew Edmondson urged Gov. Brad Henry to veto this year’s lawsuit reform legislation. Henry did in fact veto the bill, and said Edmondson’s counsel was a key factor in his decision.
In calling for the veto, Edmondson advanced several criticisms — criticisms that revealed more of himself than he could possibly know.
He first criticized the elimination of joint and several liability. This rule provides that a defendant can be held liable for all the damages caused by him and others even if he bore only a small percentage of the fault for the harm. In other words, because I am a deep pocket, I pay 100 percent of the damages, even though I only caused a fraction of the harm.
The AG’s comments revealed his true priorities. He stated, “I cannot for the life of me figure out why the state would want to limit its own ability to recover damages when the state has been harmed.
When the state is a victim and is pursuing defendants to recoup losses it should not have to face roadblocks of its own making.”
Well, how about this for a reason, Mr. Edmondson: Because you as a public servant are supposed to value justice to individual defendants more than collecting cash for your client.
The AG also criticized the provisions of the tort-reform bill that ensure that defendants appealing judgments against them will not be required to post bonds that will bankrupt their companies and limit what lawyers call “prejudgment interest” — interest on a judgment for the time before a judge or jury actually found you were liable.
If you think this prejudgment interest violates the principle of innocent before proven guilty, you are right. The real goal of the draconian requirements alleviated by the bill is to force defendants to give up their right to defend themselves and to settle, regardless of whether they are truly liable.
Again, Edmondson’s comments sound more like those of a rapacious private litigator than those of a public lawyer seeking the common good.
His problem with these provisions is if they are enacted “the incentive for early settlements or early litigation is reduced.” We certainly can’t let concern for doing justice to individual defendants get in the way of expeditiously squeezing money out of our marks.
We deserve better than this, but we won’t get it unless we are willing to demand it from our officials and ourselves.
(Andrew Spiropoulos is a professor of law and director of the Center for the Study of State Constitutional Law at Oklahoma City University. He also is an adjunct scholar at the Oklahoma Council of Public Affairs.)