There's a pervasive legal myth in a large portion of the American public, which leads people to believe that they're just one bad situation away from losing everything they own to an unscrupulous attorney's ridiculous lawsuit. This idea cuts across all levels of the income spectrum. People, regardless of their means, genuinely believe that a smooth-talking lawyer can convince a jury to take everything from them after an accident.
This phenomenon reared its head again when I was reading about a bus accident in Phoenix, Arizona that occurred Friday, March 2nd. According to a very vague news article, a bus ran over a 5-year-old Makinzie Johnson in the parking lot of a Motel 6 on North Black Canyon road. The reported details are sketchy. All we know at this point is that witnesses say the bus was moving rather slowly, when young Miss Johnson ran towards the back of the vehicle and ended up being run over. Initial reports state that the bus driver showed no signs of intoxication.
Normally, this would be the kind of story I would read about and move on. After all, there's not much to say about an incident with so few details. However, in the comments section of the story, someone chimed in with something to the effect that "some lawyer is going to find a way to blame this on the poor bus driver." I was a bit taken aback when I saw this comment. I work with some darn fine attorneys, well-versed and skilled in the law, but they're not magicians, who can conjure wrong-doing out of nothing.
The comment shows a fundamental misunderstanding of how the law works and it wouldn't surprise me if part of the commenter's ignorance stems from the myth that lawyers are out to get people. Here's how things actually work.
How Attorneys Approach Accidents
The Perfect Case: An Attorney's White Whale
Let me lay all of my cards on the table. In a perfect world, people would call our firm immediately after an accident; it would be very clear that they were not at fault; and there would be plentiful evidence that the wrong-doer screwed up. The injured person would hire us and we'd take that perfect scenario, pristine evidence, and hold the wrong-doer accountable for the significant costs that they imposed on our client. There's just one problem with this scenario, it's pretty darn rare.
Out of the hundreds of clients that our firm helps every year, at most, a dozen of them have this ideal case. Everyone else has a case that has problems. Sometimes the problems cripple the case, but the rest of the time the issues are run of the mill complications that you would expect in any interaction between two people, let alone one where someone may have hurt or killed another person.
Here's a quick illustration of what I mean. We get plenty of calls from people who lost a loved one in a truck accident. One of the more common types of accidents is when an 18-wheeler attempts to turn on to a highway, but fails to see oncoming traffic. They pull out, block the highway, and someone who was doing little more than driving down the road, crashes into the truck's trailer, resulting in a serious injury or death.
To someone who doesn't work in the legal field, that might sound pretty open and shut. The truck driver blocked the road and it hurt someone. What complication could there be in that scenario? Well, very few of us actually do the speed limit. Most of us usually go between 5 and 10 miles an hour faster than the posted speed limit. That means that it's pretty common for the trucking company to point the finger at our guy and say, "Well, if your client wasn't speeding, they would have been able to stop in time to avoid the trailer. Therefore, they caused their own injury." It's a ridiculous argument in 99% of crashes, because 5 miles per hour rarely makes the slightest difference in what happens when an 18-wheeler blocks an entire highway. We typically blow those those arguments out of the water, but it illustrates the sort of minor complications typical of many cases.
How a Law Office Chooses What to Investigate
Perhaps the biggest complication in most instances, one that mirrors the Phoenix bus tragedy story, is that we often have only the vaguest outline of what happened when we agree to look into a client's case. Now some people, without much familiarity of how law firms work, might be thinking to themselves, "See, they take on cases where they don't know what happened and try to 'pin the blame' on someone who didn't do anything wrong." If you don't know what's going on, it could certainly appear that way, but that's not how most attorneys typically work.
Firms like ours investigate cases where people aren't exactly sure what happened, because no one else does. Some may suggest that the police investigate these incidents, which is true, but accident investigation is such a small part of their job that they receive neither the training nor the funding to do the job really well. For this reason, we uncover countless instances where well-intentioned officers flat-out miss crucial evidence. We also see plenty of crashes where they do a fine job. But if you've lost a loved one, and have no idea what happened, do you really want to take the chance that you lucked out and got the officer who did a really bang-up job, or would you ask for a second opinion?
I can't count how many times we take on clients, with the understanding that the most we can guarantee them is a second set of eyes and maybe some answers about what happened to their loved one. While the truth is the least someone deserves, if someone really did screw up and injure a loved one, they also deserve to see that person held accountable for their actions. It's unacceptable and unjust to suggest that people simply have to accept the official version of what happened to their loved ones on faith. Even the most honest police officer is still human and human beings make mistakes. Law firms like ours serve as a backstop to ensure that those mistakes don't become injustices.
As I said before, many times our investigation either confirms the police version of events, or fails to uncover new evidence. What do we do in such cases, where no evidence of wrong-doing exists? We have the unenviable task of breaking the bad news to our clients and advising them that there is nothing more to be done. If there is evidence of wrong-doing, we vigorously pursue that. In short, it's the evidence that dictates what happens. No matter an attorney's tail-pinning skill, they can't make a donkey appear where one doesn't exist.
Our Court System Presumes Innocence
If you're still not convinced that attorneys can't just "pin a case" on an innocent person, let me illustrate just a few ways that our court system is set up to prevent that kind of behavior.
First, if an attorney files a lawsuit without any evidence, the judge quickly tosses that lawsuit in the trash by granting what is known as a motion for summary judgment. This is a legal term of art that simply means the judge decides the case has no merit and rules right then and there for the wrongly accused person. If it's a really frivolous lawsuit, the judge can then award attorney's fees to the defendant. Technically, the client is on the hook for these fees, but in reality, they have a strong legal malpractice claim against their attorney and it's probable that the irresponsible attorney ends up paying for a case that he never should have filed.
For the sake of argument, let's say that this ridiculous case slips past the judge. It moves on to discovery, a formal evidence-gathering process. Since the other guy didn't do anything wrong, there's no evidence to gather against him. So this part is a pretty big waste of everyone's time. Nevertheless, the court still mandates mediation, a conference of sorts, where a mediator brings both sides together, looks over the evidence and sees if there's any way they can find a solution without going to court. At mediation, the mediator will likely look at the shoddy case and tell the frivolous lawsuiting attorney that there's no way they'll win at trial.
If our hypothetical glutton for punishment attorney continues after mediation, next up is trial. This poses several more barriers. First, the defendant has the presumption of innocence. This means that hypothetically, if both sides went into the courtroom, presented no evidence, and asked the jury to decide the case, the law requires the jury to rule in favor of the defendant. Our frivolous attorney has to make his case, with evidence, not just his silver-tongued siren song.
His next hurdle is to show that the defendant actually violated a legal duty. Now some folks might think that a skilled litigator can make anyone look like they did something wrong, but this attitude fails to consider how an attorney has to prove that a person screwed up. In order to do something wrong, in a legal sense, a person has to behave in a way that a reasonably prudent person could foresee is dangerous.
Suppose I blow my nose in a library, and by some tragic coincidence a person across the room is so startled by the break in silence that my nose-blowing causes, they have a heart attack and die. I catch a bad break, in the form of an attorney trying to "pin" that person's death on me. Even if all of the other safeguards built into the legal system failed to protect me and my case made it to trial, that attorney still has to show that a person blowing their nose could reasonable foresee that it might cause someone to have a heart attack. If they can't, I win.
In the background weighing the whole thing is perhaps the best backstop against bad attorneys out there, a jury of my peers. While some folks may hold their fellow citizens in low-esteem, thinking them gullible and easy to manipulate, I think experience tells a different story. After all, if a catchy sales-pitch and willingness to badger people was all it took to persuade people into acting against their interests and common sense, then every telemarketer I know would drive a Lamborghini.
For the sake of brevity, this is by no means and exhaustive list of safeguards. Knowing this much about the litigation process illustrates the point that even if you think that lawyers are the most self-interested greedy S.O.B.'s on the planet, counting on frivolous lawsuits to make money is a losing strategy.
Lawyers and Courts Aren't Out to Get Anyone, Except the Bad Guys
I'm sure there's a lawyer out there who is chomping at the bit to file suit in cases like the bus incident in Phoenix, without having a clear picture of what actually happened. But in my experience, attorneys tend to be far more cautious. I hope it's clear by now that evidence is the ammunition for any legal battle and I can't think of anyone who wants to go into a fight without any ammo.
Contrary to the commenter's assertion, no one is going to try to blame the bus driver for what happened to Miss Johnson. By the same token, they're not going to be too quick to exonerate the driver, simply based upon a newspaper report. Think of it this way, if you hired an attorney and heard that they based the strategy in your case around what newspaper articles about your accident said, instead of police reports, independent investigations, and witness testimony, how long would it take you to fire that attorney? 5 seconds? 10 seconds?
I wouldn't take an anonymous comment online so seriously, if I didn't honestly believe that there are a lot of people out there who feel the same way. Our courts are set up to safeguard our rights, by providing a venue to resolve disputes in a predictable manner. Despite all of the structural and procedural safety nets to ensure that innocent people aren't punished, the courts as an institution derive their real strength from public trust.
Think of it a bit like vaccines, which are safe and effective 99.999% of the time. The science behind vaccines is beyond doubt. However, due to psuedo-science campaigns of the last 20 years, many people began to harbor doubts about vaccine safety and stopped vaccinating their children. As a result, diseases that were nearly wiped out 2 decades ago have become more common recently. It's not that the vaccines are any less effective than they were in the 20th century, it's that a large number of people lost faith in them and stopped using them. The end result has undoubtedly been an increase truly horrific childhood illnesses.
The belief that lawyers are out to get innocent people for profit has as little basis in reality as the myth that vaccines cause autism or heavy metal poisoning. However, just like a loss of faith in vaccines preceeded the explosion of preventable, debilitating childhood illnesses, a loss of faith in our legal system can have similar disastrous consequences.
We witnessed the first wave of how this attitude can hurt people with the tort reform efforts of the 1990s and early 2000s. People were so ticked off with what they believe were out of control attorneys, that many states decided to limit the amount of money that injured people could recover from someone who caused their injuries. The effect was that people, in their misguided fury with attorneys decided to give people and businesses who kill and injure others a discount on the damage they caused.
I'm not suggesting that some attorneys don't file ridiculous lawsuits, like the infamous Starbucks Iced Coffee lawsuit or the guy who sued his dry-cleaner for tens of thousands of dollars. However, both of those cases went nowhere and the suit lawsuit guy actually had his license to practice law revoked. Those stories are news because they're far outside the norm. The truth is rather than angling for ways to waste time and money suing innocent people, real attorneys are in the same boat as the rest of the public when they read about an incident like the one that occurred in Phoenix, Arizona; they just want to know what happened.
If an incident really is just a tragic accident, then it deserves to be treated as such. However, ignoring provable negligence means that wrong-doers don't answer for the damage they cause, and worse, the victims end up fitting the bill for someone else's irresponsible, dangerous behavior, which is why I can safely say that an attorney isn't out to get you, unless your carelessness leads to a serious injury or death for another person.