Cap Defense Lawyers’ Billable Hours?

Our jury system has long served to level the playing field for average Americans with an infinitesimal fraction of the resources of multinational corporations. Yet, every year, the insurance and manufacturer lobbyists stampede state capitols like hogs in search of the slop bucket, squealing that greedy, out-of-control trial lawyers (meaning plaintiffs ' trial lawyers) are killing the American Dream, putting American companies out of business and throwing hard-working Americans out on the street.

The business lobby solution is always the same: regulate the damages a jury can award and cap contingency fee contracts. But in the corporate world, as in George Orwell's Animal Farm, "Some are more equal than others." In one breath pro-business talking heads propose taking away a jury's right to award an appropriate amount of damages for corporate misconduct and taking away the right of victims to contract with their attorneys over fees, and in the next breath those same talking heads mouth capitalist virtues of an unrestrained free market in which entrepreneurs compete to provide the best service for the most affordable fee.

Obviously, the business lobby skews logic and indeed the principles on which this country was founded. At first blush, what should be good enough for a corporation, which has no soul, should be good enough for an individual American. (In fact, as a matter of law, corporations have less legal rights than individual Americans -- at least such is the case now). Try to imagine the uproar if the Congress tried to pass legislation limiting a corporation's right to seek damages in business litigation, or the fees it could pay to seek the best counsel available for such legislation. Obviously, the business lobby wants a "more equal" (read "lopsided") playing field with the victims of corporate misconduct.

These obvious flaws in logic and principle never sat well with me. So, too, the notion that plaintiffs' lawyers represented a market inefficiency.

Since 1988, I've sat in hundreds of depositions. I've always wondered how corporate America benefits from having sometimes up to 25 defense lawyers sitting around a conference table, waiting their turn to ask canned questions from a dog-eared and shopworn outline of standardized questions. When not asking questions, a few are listening, but in my experience the majority are either reading USA Today or tapping away on their laptop computers. The going rate for asbestos defense lawyers is around $250 an hour. The typical deposition lasts at least eight hours -- my own Dad's recent deposition in California consumed about 40 hours of his life. There were about 15 defense lawyers at my Dad's deposition.

Let's do the math. Fifteen lawyers billing out 40 hours each at about $250 per hour, not including travel, preparation and post-deposition review, amounts to $150,000. And for that corporate America gets to learn whether Dave Worthington was exposed to asbestos? (He was. Tons of it.)

So it was with a mixture of delight and disgust that I learned from an insurance adjuster the truth about who's really goring the asbestos cash cow. According to the Connecticut Valley Claims Service, a prominent insurance claims management provider with decades of experience representing asbestos companies, every dollar consumed by asbestos litigation is divided as follows:

"Cost accountants have estimated that of every dollar spent in asbestos litigation, 37 percent of this is spent on defense costs (indemnity and litigation costs), 27 percent goes to plaintiffs' counsel, and the remaining 36 percent goes to the actual plaintiff." See The War-Torn Landscape: The Asbestos Impact athttp://www.cvcsc.com/Articles/asbestosimpact.htm

Let's look again. Of every dollar spent, only $.36 goes to the victim -- the party who needs the money the most and too often doesn't live long enough to put their compensation to work. A whopping $.37 goes to the lawyers, adjusters, medical experts, lobbyists, actuaries and other apologists whose job is to serve and protect the Beast. And, contrary to the knee jerk talk radio pundits and flim-flam artists who appear nightly on Fox News, the trial lawyers, who assume all the risk in fighting the Beast on behalf of injured victims, take the smallest cut.

But you never hear any "tort reform" crusaders talk about capping the exorbitant fees charged by the asbestos defense lawyers.

Roger G. Worthington