When a cup of scalding hot coffee fell into the lap of Stella Liebeck it sent her into shock as the liquid severely burned 16 percent of her body, including her thighs and vagina, which ultimately required skin grafts. The seventy-nine year old ended up in the hospital for eight days, and required follow up treatment for two years. Liebeck asked the company that served the coffee to pay for her medical bills. Despite the fact that their coffee was served a good thirty degrees hotter than at similar restaurants, and that over 700 other customers had complained of burns from their lava-like beverage, the company refused to admit wrongdoing and only offered a measly $800 dollars to Liebeck. She had been willing to settle for $20,000, but $800 was an insult. This was no mom-and-pop operation, but the multi-billion dollar McDonald’s corporation. Liebeck decided to sue, and she was awarded $2.86 million in damages by a jury.
It all seems like a straight-forward, open and shut case: after receiving hundreds of complaints, a company continues to serve a dangerous product that severely injures an older woman, and she is awarded compensation. Yet, if you were to watch the news stories they would have you believing that Liebeck was some sort of con artist trying to swindle McDonald’s for everything they are worth. The media picked up the story of her case and, overnight, the whole world seemed to develop strong opinions about her “frivolous litigation.” She was portrayed as a clumsy, greedy woman, whose legal actions were exemplary of an encroaching “compensation culture.” A group even had the gall to create a “Stella Award”, named after Liebeck, which is given to “wild, outrageous, or ridiculous” lawsuits. The conventional wisdom came to be that only sleightful and selfish people sue and that plaintiffs are exaggerating and manipulative at best, or outright lying at worst. Victims like Liebeck came to be seen as themselves perpetrators of some moral crime.
Liebeck’s life was dramatically changed by the unsafe practices of a huge corporation, and the world cruelly turned her personal pain and scarred thighs into a joke, a wolf-cry from a manipulative gold-digger. If her case is exemplary of anything, it is not of a “compensation culture,” but of the need for talented and committed lawyers who can work with injured parties to take on entrenched and powerful interests. We decided to talk with some of these lawyers to get the real scoop on why people sue.
What is the impact of plaintiff side litigation? Who are the clients? What are the benefits of working as a plaintiff’s attorney? Can plaintiff-side work be profitable? Let’s hear from some people who actually do the work.
Plaintiff-Side Law is About Justice
In the words of Tyson Wiles of Santa Cruz, CA based firm Wiles & Wiles, plaintiff-side lawyers are “going against the well-oiled machine that is trying to rob cheat and steal from injured parties.” This well-oiled machine includes many different players, from big corporations and insurance companies to crooked employers and scammers. There is a pantheon of villains to go after, and a wide array of different kinds of cases that an injured party can bring.
Plaintiff-side law is a broad term that covers cases such as mass torts, class actions, personal injury, workers’ compensation, and individual commercial litigation. Taking on the NFL and the NCAA in a class action suit to create more safety regulations for football players and working with immigrant food-processing workers to take on their boss for stealing wages are both examples of plaintiff-side law. The details of plaintiff-side cases are always different, but at the center is always a fight for a more equitable world that is not pitted against everyday people.
When someone sues an employer for back wages they are owed or sues a company for a faulty, dangerous product, they are not just seeking individual compensation for a wrong, they are also altering an entire company or industry. Wiles explained to us that, often times, plaintiff lawyers will “continue to file cases and try cases because the insurance companies are doing a cost benefit analysis” and they won’t fight certain cases because “it’s not worth their time and energy.” Attorneys at his firm often “end up doing it on a principles matter simply to ensure we get a fair shake, and that’s one of the only ways we have to hold the insurance companies feet to the fire so to speak.” When companies know that they will be held accountable for their negligence, they make their products safer for the future. When bosses realize that they will have to pay back their underpaid employees, they will not steal wages in the future.
It’s not just about shifting the cost-benefit analysis of companies. James Swartz of Boston-based firm Swartz & Swartz has found that legal “resolutions can impact safety legislation and regulations, safer design and manufacturing practices, and better internal corporate practices focused on consumer safety.” Plaintiff’s cases can, quite literally, change the world.
Wiles sees his work as “making sure that insurance companies don’t rule the world more than they already do.” “The insurance lobby is the biggest lobby in the world… they are constantly degrading individuals rights. They are trying to steamroll and take advantage of people,” Wiles warns. Indeed, insurance industries do have a record of rejecting a high number of claims because they expect little resistance. In 2009, the state of California had to investigate the six largest medical insurance companies in the state after finding claim rejection rates at high as 39.6%. These industries have significant power, and plaintiff-side attorneys are specialists in working with everyday people to check that power. This personal, helping relationship with the client can itself be a great incentive for plaintiff-side lawyers.
Plaintiff-Side Law is About People
Swartz told us that one of the most satisfying components of being a plaintiff lawyer is working “directly with individuals – dads, moms, children, extended family – who often have suffered enormous, sometimes tragic losses. The interactions involve not only legal advice and guidance, but also listening with empathy, understanding your clients’ difficult situation, and the ways you can assist them within the legal framework provided.” plaintiff-side work brings a human face to abstract laws and legal procedures. As Swartz says, “there is a human-level connection that is not achieved in corporate law, or on the defense side with insurance companies.”
This human connection is one of the major perks of working plaintiff-side law. Many new lawyers end up relegated to back offices, pushing papers as glorified paralegals. With plaintiff-side cases there is significant interaction with clients, and being a kind, helpful advocate is an essential part of the work. Clients are often times going against the odds in fighting big corporations. Plaintiff’s attorneys offer hope.
Swartz explains the work as a “‘David vs Goliath’ scenario,” where plaintiffs “typically do not have the knowledge or resources to pursue a viable claim against a corporation to achieve a measure of justice”. The law can be a confusing, scary realm for many people, and wrongdoers can get away clean simply because people are too intimidated by courts and claims to take action. Plaintiff attorneys work to de-mystify the legal system and show clients a path towards some modicum of justice.
Mark Stewart, of Salt Lake City based firm Driggs, Bills & Day, talked to us about how the “majority of the times the clients have really been injured and it’s changed their life sometimes dramatically. They need someone to help them figure out what to do with their medical bills.” People are often injured too severely to return to work. Their deepest and most important relationships, with spouses and children, are disrupted and sometimes altered forever. In these circumstances, trying to scrape together money for legal fees may be impossible. For this reason, plaintiff-side lawyers have to be ready to take on a significant up-front financial burden when they take a case. But this doesn’t mean that the work cannot also be profitable.
The Business of Plaintiff-Side Law
Swartz explained to us that, “while the contingent fee system affords individuals to pursue litigation that would otherwise be too costly, there is a burden shifted to the plaintiff’s’ attorney who is taking on great risk to achieve a just result for his or her client.” These sunk costs can be a scary risk, even for established attorneys. In many cases, attorneys lose money when they don’t win a case. Stewart told us about cases where he paid ten to twenty thousand dollars out of pocket to retain expert witnesses. But, he tells us, “after you have been doing it for a while, you know which cases to take and not to take, and at our firm we never really end up having cases that we’re not making money on”. A recent study of plaintiff-side lawyers found that a small fraction of cases account for a disproportionate percentage of paid attorney fees. Finding that blockbuster case can help to support a practice through many less successful cases.
Despite the difficult aspects of landing the right cases, Stewart was clear that “In the end the reward is greater. You are not doing billable hours, so you work at your own pace”. Working at your own pace is just one of the beneficial business aspects of plaintiff-side work. plaintiff-side lawyers don’t have to wait to become part of a big firm to practice; there are plenty of personal injury and workers compensation cases out there to be picked up by attorneys in private practice. Finding the right case and litigating it successfully can bring justice for a client, but also the seed money for a new law firm or the down payment on a new home.
Mark Schneider of New York based Schneider & Palcsik sums up plaintiff-side attorney work quite well: “it’s exciting work, and it’s fun work, and you can make some money. But most of all you get a chance to try to make the legal system work for people looking for justice”.
It is no surprise that plaintiff-side law and plaintiffs like Stella Liebeck have been grossly misrepresented in the mainstream. They often mount the toughest challenges to entrenched and powerful interests. Their cases against injustices, errors and negligence can inspire legislation, set industry standards, and provide an example to other everyday people that, even against billion dollar corporations, there is some restitution to be found in the courts. Plaintiff-side law is not about chasing ambulances. It’s about using the law as it was meant to be used: to equalize all parts of society in the interest of justice.