Dallas Personal Injury Attorney Blog

Both the United States Constitution and the Texas Constitution provide that every citizen has the right to free access to the courts and to a jury trial. Having a Constitutional right to use the courts to seek justice is great, of course - but having a right to seek justice in the courts and actually being able to afford doing so are two dramatically different things. Litigation is expensive - very expensive. A product liability suit against a big car manufacturer or a complex medical malpractice suit may cost over $100,000.00 in expenses alone - filing fees, expert witness fees, court reporter charges, preparation of exhibits, investigators - even before the cost of the attorney's services are figured in. An attorney with the skills to actually take on the legal army that a car manufacturer would put in the field or the knowledge to develop a complex medical negligence case would easily command $500 an hour for his time. Fees and expenses in even a typical contract dispute often exceed $20,000.00.

Consider, then, the plight of a working class family whose children burn to death in a car with a defective gas tank, or whose child has been crippled by a doctor's mistake. There is not even the slightest possibility that they could afford either the expenses or the attorneys necessary to investigate and prosecute their case, and no chance at all that they would prevail without sophisticated legal help.

Contingent Fees
Contingent fee arrangements make it possible for such plaintiffs to take on a rich defendant. A typical contingent fee contract does two things: first, it provides that the lawyer does not get paid unless he is successful. Second, it provides that the lawyer who takes the case will pay the expenses of the case, and that the client will not have to pay the expenses until the case is over - and only if there is a recovery for the client. That means that people who otherwise could not afford to assert a claim in court can do so. It also means that lawyers who take cases on a contingent fee basis are gambling their time and their money on the outcome of their client's case.

Because of the contingent fee system, average citizens can take on big businesses who could otherwise bury them in expense and legal fees, making a legal victory impossible. Big business and insurance carriers hate contingent fees for that very reason. Eliminate the contingent fee contract and no average person could ever afford to sue.

Frivolous Lawsuits?
For those of you concerned that there might be too many frivolous lawsuits (and there are definitely some silly ones filed) consider this: in a contingent fee system, if a plaintiff's lawyer takes a case to trial and loses, then he loses everything - sometimes years of his time and hundreds of thousands of dollars in expenses invested in the case. Any big case is a really big gamble by the plaintiff's attorney, and if their clients lose, the attorney loses, too.

For those of us that handle some cases on a contingent fee basis, this is a very real deterrent to taking any case that we don't really believe in. Think about it:
When was the last time you gambled $100,000 of your time and money on what twelve complete strangers might think was fair? How sure would you have to be that you were right before making the gamble? When the injuries are severe, and the case is going to be expensive, no attorney that I know files suit without a lot of thought.

This is a system that works: that's why when you read about some ludicrous claim like a claim against a fast food company for "making people fat", you only read about the one case, its always filed in another state, and you never hear about it again. Real lawyers risking real money don't take cases like that. Someone might file such a case to get some quick and easy publicity when gullible reporters (or the usual anti-lawsuit big business crowd) jumps all over the story, but anybody who knows anything about our justice system knows that cases like that are always thrown out by the trial judge pretty quickly. When they are, you won't read about it - because a frivolous case being dismissed isn't news, and because the pro-business and anti-consumer crowd would hate for you to think that the system doesn't need to be "reformed" to make it even more difficult for the average person to sue big business.

John Polewski is a board certified attorney with offices in DeSoto and Midlothian.

In a medical malpractice case, as in many other types of cases against professionals, the plaintiff is required to prove his case with expert testimony from another professional to the effect that the defendant failed to provide proper care to the plaintiff.

Such testimony is often required to even start a case: under a special law enacted for the benefit of doctors (thanks to a powerful lobbying effort) if the plaintiff cannot furnish such testimony within 120 days of filing suit, the suit will be dismissed and the plaintiff and his attorney have to pay the doctor's attorney's fees and costs. Of course, a doctor need not respond with an expert report of his own defending his conduct, and if he sues you he doesn't have to provide any kind of report. This is what passes for "equal justice" these days in a state where lobbyists and their money can buy legislation.

Be that as it may, as a result of this statute, attorneys who handle claims for consumers spend a lot of our time begging professionals to come forward and testify in public against other professionals. I have no problem finding a doctor willing to review the medical records and tell me if my client has a good case: that's easy. Getting them to say it in public is a different story.

We have had dozens of patients come into our office and tell us that one of their doctors has told them that they should "go see a lawyer" because of what another doctor did, or that one of their doctors told them that "this is the worst case of malpractice I have ever seen". Yet when we contact those doctors, they clam up in a hurry.

What's going on here? Some of the more wild-eyed of my colleagues who handle these cases, and some members of the public, call this a "conspiracy of silence" - and say that all doctors everywhere are sweeping each other's errors under the rug. The same accusation is made of police officers, accountants, lawyers, and other groups. The idea is that these groups will stand together in the face of any outside threat, even if it means supporting a bad apple in their group.

There is some truth to that, of course. Police officers and doctors, among other groups, feel themselves misunderstood and overly criticized by the public in general, and as a result tend to have a knee jerk reaction against such criticism aimed at members of their professions. But as someone who has both represented and sued members of these groups, I think that there is also something much less sinister going on, and it is this: Nobody wants to testify against someone they are going to have to deal with in the future.

For doctors, this is a big issue: if you are a neurosurgeon in Dallas, even as big as the medical community is, you know all of the other neurosurgeons. They may not be your friends and you may not think much of them, but you see them in operating rooms and doctor's lounges in hospitals every day. You will see them at medical meetings and seminars. They sit on the boards of hospitals at which you may want to practice someday.

Now imagine that you are such a doctor and a lawyer you don't know calls you and asks you to review a file for negligence. Would you testify against the other doctor, knowing that you will see him often and that he will complain bitterly about you to other members of the local profession? Almost certainly not. There are limits anyone wants to go to for a stranger.

On the other hand, if you are asked by a defense attorney to testify for another local doctor, the situation is reversed: now you are not risking censure by your colleagues, but instead get praised, and instead of making enemies, you are creating goodwill and doing favors for people who will owe you favors in the future.

The result is that most local doctors, lawyers, accountants, builders, etc. will not testify against another local colleague, but will readily testify for the defense of their colleagues. This may not be "fair" or in the public's best interest, but it isn't necessarily a "conspiracy", either. These professionals are human, just like the rest of us. That's why they make the mistakes that get them sued, and its why they won't testify against the professional just down the hall.

Of course, it is also true that many, many doctors will never testify in a malpractice case against another doctor - even one they don't know who lives in another state. Some of these doctors simply don't want to get involved in any case, which is understandable. Many, however, are happy to testify for another doctor, but never for a patient injured by malpractice. Put another way, there is in fact a "conspiracy of silence" which results in doctors refusing to publicly point out the mistakes of other doctors. Anyone who handles medical negligence cases has to deal with that fact - and they had better also understand the other reasons doctors won't testify against other doctors.