A brief rant today about the tobacco litigation, which really burns my butt. Particularly where the state attorneys general are the ringleaders. The idea that people didn't know that smoking was bad for you is absurd. Everyone knew it was bad for you, even decades ago. Not long ago, I read a vintage fitness book that was made up of a collection of columns from a 1960s fitness magazine. It includes several warnings about how smoking is terrible for your health. People knew. The other thing that bothers me is to see the government using lawsuits to regulate/punish the tobacco industry after the fact. The government has been complicit in every sin the tobacco industry has ever committed. The government makes tobacco legal. It collects taxes on the sales. To scream foul years later, when you've been hand in hand with these guys all along just smells.

That being said. I don't smoke and think smoking is a terrible thing. I hope my kids never do. But these lawsuits are just plain wrong.

Busy today with family stuff. The kids start school next week, so there's lots to do. Short commentary today.

This one's a short book review for the lawyers out there. I just finished a slim volume called Theater Tips for Jury Trials by David Ball. Great stuff. Ball offers the sort of ideas about presentation, word choice, appearance, and the like that you don't get enough of in conventional trial practice books. Ball covers everything from beginning to pitch your client's case during voir dire to how to construct questions on direct and cross to give your witnesses more time to think and the other side's less. A terrific addition to any trial lawyer's library.

I had an interesting conversation yesterday with a prospective client. He is a pretty young man, who just got out of graduate school and has not piled up a big stash of savings yet. He had just poured most of what he had into buying his first house, and promptly received a letter threatening to sue him. I think he has a good case. We talked for a long time about the good points for him and the not-so-good points. We also talked about how much it would cost to defend if the other guy sues him. The costs add up pretty fast if a law suit goes the distance.

The first interesting thing that came up was that he had talked over his situation with a couple of other lawyers. He had never had to deal with any lawyers before, and told me straight out how surprised he was at how pleasant they all were. He had been under the impression that lawyers are all a bunch of evil barracudas (my words), and had expected that merely talking to a lawyer would be a painful experience. I told him we get a lot of bad press.

I've actually seen that or a similar reaction quite a few times over the years. In the abstract, lawyers are easy targets. Lawsuits aren't much fun. Everyone in this country seems to sue someone every time something goes wrong in their lives. It's easy to blame the lawyers as a group. But individually, I've never noticed that lawyers are any worse a bunch of people than any other group. Sure, there are some creeps in there. There are something like 2.5 million lawyers running around this country. Some are going to be rotten. But overall, we're not so bad as we're often made out to be. On an individual basis, lawyers surprise people by being people too.

The second interesting thing from our conversation was a plan we discussed to deal with the legal fees. I felt like this guy was going to get railroaded. He has a good case, but was in danger of having to cave in or make a bad compromise because fighting would be too expensive. We talked about him defending himself, or going "pro se," but it really is hard for someone to handle a lawsuit without a lawyer. This stuff is complicated. So I proposed that he pay a portion of the fee in cash, and barter his professional services for the rest. I have to get my firm to approve this plan, but it seemed like a great idea to me. I certainly couldn't make this deal with every client. But here I think it makes sense.

We'll see how it goes.

Welcome to the Dalai Lawyer's Blog.

My plan is to offer daily commentary on the law and the legal system in the United States. I am a lawyer with over ten years experience with a wide variety of civil litigation (law suits). I mainly focus on business-related law suits. I have been reading and thinking a lot lately about "big picture" issues relating to our legal system and how lawyers function in it. I'm hoping that by writing some daily commentary, I will help clarify my own thinking and maybe offer some worthwhile ideas and observations along the way. Thanks for reading.

Last night, I was reading an article about class action lawsuits. There's all sorts of consternation and general teeth-gnashing going on in certain circles because of the perception that class actions are just vehicles for greedy lawyers to reel in huge fees, while doing pretty darn little to help out the people they're supposed to be representing.

For those of you who haven't had to deal with these things before, a class action is a law suit in which a person, or a small group of people, sue on behalf of everyone who has suffered the same (or roughly the same) wrong at the hands of the defendant. The background idea is that sometimes a person can suffer a small injury that isn't worth suing over. But if the defendant is inflicting that same wrong on lots of people, it can add up to a mighty big wrong overall. But because no one is willing to incur the expense and trouble of suing over their little piece of the big wrong, the defendant keeps getting away with it, and can make lots of money over time. For example, let's say a company sells an inexpensive product that it knows won't work right, and stiffs all the customers who buy it. But it's cheap, so no one is going to sue over it. The company can make big bucks off its shoddy product and no one will call it to account.

Enter the class action. The idea is to accumulate all the little wrongs and add them up to make something worth suing over. The problem is that lawyers can use this as a vehicle to trump up marginal lawsuits, that defendants will have to settle, because if they lose, the amount demanded in damages is so big it could put them out of business.

So, anyway, this article I was reading proposed that lawyers be required to pay the defendant's legal fees if they bring a class action and lose. This did not strike me as a great idea. Plaintiffs' lawyers usually work on a contingency fee arrangement. This means they only get paid if they recover money from the defendant(s). If they bring a class action and lose, then they already lose all their time, and often a fairly large sum of money that they invest in the other costs associated with bringing a lawsuit (I can ramble about those costs another time). If they also faced the prospect of paying the defendant's legal fees, the number of class actions would drop dramatically. That, to be fair, is the point to the idea.

But wouldn't that mean that only rich people would be able to bring class actions? I think that if such a rule were adopted, then lawyers wouldn't want to take contingency cases anymore, at least not without some serious financial backing in case things go sour.

Also, do we really want lawyers to have to be virtually sure they're going to win before they even file a lawsuit? I can tell you from experience that there are almost always surprises along the way in a lawsuit. Sometimes you think you have a dead on winner and it goes south on you halfway through the lawsuit. Sometimes you think it's a dog, but your client is insistent so you soldier on, only to find out that the client was right all along, and it's a great claim. Usually, things are up the middle somewhere. Some things go your way, some don't. Sometimes you think you're going to win and you lose. Sometimes the reverse.

In this country, the general rule is that people pay their own legal fees, win, lose or draw. There are exceptions to the rule, of course, and a number of statutes that shift the fees in certain cases. But usually you bear your own costs. The rest of the world (pretty much) uses a "loser pays" rule. The consequences of who pays the lawyers are huge, because lawsuits are so expensive. In a class action, everything is magnified because the stakes get so high.

More thinking on these issues to come.