The Chamber of Commerce and other anti-consumer interest groups like to talk about “the litigation tax.”  This is, in their view, the added cost of products caused by lawsuits, chiefly product liability lawsuits.

The fact is, safety costs money. It is cheaper to build a car with a flimsy gas tank, shoddy tires and no air bags than one with state of the art technology to protect the occupants. Whether you see that cost as a “safety premium” or “litigation tax” probably depends upon whether or not you are interested in avoiding or surviving a car accident.

But, one thing is certain. Vehicles became safer, and lives were saved, because auto manufacturers got tired of getting pounded at the courthouse for dragging their feet on safety. For years, only Volvo was in the “safe car” business. Today, all auto manufacturers shout out how safe their vehicles are. Mercedes even has a new model that will stop itself if the driver falls asleep and is about to slam into an object in front of it!

This move from foot-dragging to safety-bragging did not come from a bunch of politicians or bureaucrats in the government. Congress is exercising its muscle against Toyota now, but its record has been horrible over the past forty-five years since Ralph Nader (the good Nader, before he became a perennial candidate) exposed that death-trap called the Chevrolet Corvair.

Lawyers, on the other hand, have much to crow about in terms of lives saved due to changes in vehicle safety. Just in case you do not know how we have made a difference, take a look at this American Association for Justice (formerly the American Trial Lawyers Association) publication: AAJ Report “Driven to Safety” or for a shorter version, this interactive chart: AAJ Car Safety Chart.

The next time someone complains about “the litigation tax,” ask if they would disable their airbags, seat belts and side impact protection.  Then show them the chart.

One of the more complex relationships in a lawyer’s professional life is representing children.  Even defining the word “child” is complicated.  Any person under age 18 is legally a child and cannot sign contracts or hire a lawyer.  Those acts must be done on the child’s behalf by a parent or legal guardian.

When a person achieves the age of majority, everything changes, even if the child has not. Not only may an 18-year-old sign a contract hiring a lawyer; ONLY the 18-year-old can sign such a contract. Parents instantly become powerless to control their child’s legal affairs. At age 18, all the rules of privacy and confidentiality immediately attach to the child to the exclusion of everyone else in the world, including his or her parents. Parents who have accompanied an adult child to the doctor or sent a child to college may have been advised they are “out of the loop” unless their son or daughter gives written permission otherwise.

Lawyers face the same constraints of privacy and confidentiality.

Most newly minted adults are ill-equipped to make “grown up” decisions. How many young adults are prepared to make financial judgments that could affect the rest of their lives? It is difficult for people in their 40s and 50s to manage a large sum of money; imagine an 18 or 19 year old who receives a lump sum settlement. Handled improperly, a positive result in a lawsuit could produce negative consequences in a young person’s life.

If young adults are fortunate enough to have responsible parents (or others) in their lives, they will hopefully seek and accept adult guidance. I encourage my young adult clients to keep their parents involved in the decision-making on their cases. However, many lawyers have had the unpleasant experience of representing an adult child at odds with his or her parents. Trying to keep a young adult from doing something rash or ill-advised is a daunting task for a parent. It is even worse for a lawyer. We are duty-bound to follow our client’s instructions, and when the client is an 18 year old, those instructions may involve bad decisions.

One of the lawyer’s most important functions is educating his client.  That includes informing the client of the factual and legal issues in a lawsuit, and helping the client make decisions regarding settlement.  However, that role does not stop when the case ends.  We also advise clients on how to manage the proceeds of a successful case.  A 1992 study by the Rutter Group showed that 90% of all lump sum payments are dissipated within five years.  People spend money unwisely, make poor investment decisions, or give money away to friends and relatives.  There are measures we can take, such as “structured settlements,” to protect people from themselves.  However, in order to implement these steps, the client must agree.

The keys to a successful attorney-client relationship with an “adult child” are to treat everyone involved with respect and establish the ground rules of the relationship early. In my initial meeting, I welcome the parents to participate, but I direct my comments to the young client. I discuss the issue of confidentiality and parental involvement openly. I explain that the child is fortunate to have his or her parents involved, as I have represented young adults who were all alone in the world and had to make big decisions with no parental help. Finally, I have the young adult state in writing whether or not I am permitted to discuss the case with his or her parents. When that permission is given, I ask that the young adult be included in all discussions whenever possible.

Perhaps having been a father of teenagers helps me relate to “adult children” whom I represent.  Developing trust and rapport with clients is important, particularly with young adults!

Supreme Court of Texas Chief Justice Wallace Jefferson co-wrote an op-ed piece in the April 5, 2010 Houston Chronicle with Vinson & Elkins’ Harry Reasoner titled, “Helping the Poor in Civil Cases.” The piece discusses the plight of those who cannot afford counsel: “Imagine you are poor and your landlord has illegally locked you out of your home, or your spouse is abusive but you do not know how to obtain a protective order, or that your insurer wrongly denies medical coverage for your sick child. Without access to a lawyer or the means to represent yourself, these basic human needs go unaddressed.”

The article bemoans the fact that Texas ranks 43rd in funding for legal services to the poor, and cites a nearly 75% decline in lawyers’ IOLTA trust accounts (interest on these accounts funds legal services to the poor).  Chief Justice Jefferson and Mr. Reasoner go on to discuss steps courts can take to make the legal process easier for unrepresented litigants.  The article sums up by saying, “We will continue aspiring toward the ideal that all litigants should be represented by competent counsel. In the meantime, these innovative programs can serve as models for Texas as we strive to address the challenge to give all our citizens the tools to protect their legal rights.”

With all due respect to these fine, honorable men, are they serious?  Do they truly believe the legal system can be tweaked so that pro se (unrepresented) litigants have a chance against the Vinson & Elkins of the world?  Why not address the reasons so many people cannot find a lawyer, and why lawyers’ IOLTA accounts are down 75%?  Those issues are related to a larger problem, one that will not be cured by the kindness of strangers or trying to teach non-lawyers how to represent themselves.

The larger problem is that our legislature and courts have placed barrier after barrier against the rights of individuals to sue corporations and insurance companies.  It has become increasingly difficult for lawyers to make a living representing “the little guy.”  From worker’s compensation (see my last post) to insurance claims, to that giant insurance boondoggle, “medical malpractice reform,” people with claims often find themselves unrepresented because the profit motive for the lawyer has been eliminated.

If Chief Justice Jefferson and Mr. Reasoner want to “fix” the problem, giving tools to unrepresented litigants is not the answer.  Giving them access to lawyers, by allowing more litigants to sue for attorney’s fees and providing adequate rights of recovery against landlords, insurance companies and corporations, is a remedy that will work.

These problems are not going to be resolved until we elect legislators and judges who view protecting the rights of individuals as the paramount duty of the law.  Let’s roll back anti-consumer, anti-employee, anti-patient, anti-tenant, anti-victim laws and reverse court decisions that have served the interests of a few Texans at the expense of the many.  Then, we might see a positive change of the type to which Chief Justice Jefferson and Mr. Reasoner aspire.

Our legal system works when both sides have a legal playing field.  Our legislature and courts have been protecting insurance companies and corporations for too long.  Fortunately, we have a remedy for that…every November.