Let's Kill All the Lawyers

Saturday, January 27, 2007 | 4

By David J. DePaolo

"The first thing we do, let's kill all the lawyers."

There is recurrent modern debate about the true meaning of Dick the Butcher's sarcastic utterance in response to Jack Cade's boastful ambitions towards the throne in Shakespeare's Henry VII, Part 2, as much as the current debate about fees for lawyers who represent injured workers in these modern times.

There does not, however, seem to be much debate as to the effect of current reform effects limiting attorney fees for injured workers across the country (from Florida's statutory limits to California's reductions as a consequence of reduced PD awards) -- a reduction in workers' compensation litigation. Left Coast or Right Coast -- the trend towards restriction of fees, at least in my mind, smacks of nothing less than an attempt to restrict the statutory and regulatory rights of injured workers to seek appropriate judicial redress for failures to deliver rightful benefits.

Kill the lawyers, kill the system.

There is a gross inequity born of the plain and indisputable fact that those responsible for providing mandated benefits to injured workers have resources of a scope and magnitude that can not be matched by injured workers. The form of government regulation meant to ensure a proper system of checks and balances relies on a judicial system to retard abuse and promote fair compliance.

My former law partner once quipped to a financially secure client who objected to his fee that, "We live in America. In America, justice costs money. If you want justice, then you must pay money."

This is a truism that is as accurate in the workers' compensation context as it is in the general civil or criminal context. A judicial system, in order to operate properly and effectively, requires that those who are subject to it understand the rules, regulations and procedures established for orderly administration of law. The complexity of our society requires a special education in the administration of law, an education partly born of schooling and partly developed of experience in the tribunal unto which disputes are brought.

Where the orderly administration of law is usurped by an imbalance of resources, there ultimately occurs an oppression of the people for whom the system was originally designed to protect.

I fear that we are now witnessing the beginning of the oppression of the people and the degradation of a system no longer serving the purposes of original intent.

Former California Division of Workers' Compensation Administrative Director Casey Young, in a presentation to the California Society of Industrial Medicine and Surgery last year, lamented the erosion of ethics in the California workers' compensation system, and the consequential degradation of the system's functionality (indeed, transformation to dysfunction), the result of mistrust begetting reform, begetting greater distrust, begetting even more reform, etc. [Casey Young's speech has been produced into a multi-media presentation for WorkCompSchool - users can see/hear it at:

http://www.workcompschool.com/wccschool/video/Young/Young.html for no charge, or for continuing education credit for adjusters, attorneys or doctors, go to Day 19 of the 120 Hour Claims Education series at:

www.workcompschool.com]

The cycle continues, unabated, and spins ever tighter, ever faster.

The end result, a system so dysfunctional that there is nothing left of its original purpose and a system so bereft of any virtue that it has no socio-economic value whatsoever.

Is our system of workers' compensation thus doomed to obsolescence?

Florida has artificially restricted attorney fees. California on the other hand removed the pot from which attorney fees were traditionally paid. The net effect, however, is still the same -- a quick exodus of lawyers willing to put up with 360+ day receivables in order to represent injured workers.

Rather than restrict attorney fees, it seems the real resolution is to adequately discipline the behavior that results in litigation. Remove the reason to litigate and there is less need for attorneys and a lower litigation level, reducing costs all around.

But removing the reason to litigate can not happen without an adequate system of checks and balances, and in America we do this through judicial processes. Hence, lawyers are necessary to ensure the adequate functioning of the system. Restricting fees will not reduce litigation. Reducing the pot from which fees are drawn will not reduce litigation.

What will reduce litigation is making those who are the source of a dispute financially responsible.

In California, a judge must approve any fee arrangement between a lawyer and an injured worker. The Florida 1st Court of Appeals recognizes that there is nothing prohibiting a fee "settlement" between an injured worker's attorney and the carrier.

Similarly, there is nothing prohibiting the imposition of a fee against a carrier where an injured worker's attorney was successful in righting a wrong, increasing a benefit, or ensuring adequate medical treatment. Indeed, perhaps the proper system of judicial enforcement should be reflected by a complete shifting of the burden of paying for justice, by making the employer/carrier responsible for the hourly attorney fee of the injured worker rather than out of the pot of money that would otherwise be paid to the injured worker.

Some will argue that this will lead to further perversion of the judicial system, and that increased litigation will result. I argue that the frugal and careful carrier will be forced to carefully weigh the risks and benefits, and will ensure that there is a fight only where it thinks such is warranted and where success is likely. And if the result is that there is no fee to the attorney if he/she is unsuccessful (as judicially determined according to a list of pre-defined benchmarks), then injured worker attorneys will likewise carefully weigh the risks and rewards of bringing litigation.

I am sure that there are issues and problems with this proposal, and those with keener minds than mine (or, perhaps, more psychopathic than me) will find holes and errors to exploit. But clearly, our present system of ensuring appropriate checks and balances is on the brink of irrelevancy. Workers' compensation needs lawyers if it is to remain free of anarchy and oppression.

We may never really know the true intent of Shakespeare's version of recast of history, but the real Jack Cade led 20,000 rebels across the London Bridge on July 3, 1450 and captured, then beheaded the Lord Treasurer as King Henry hid in safety in Warwickshire. The rebels and Cade himself then went on a looting rampage of London. The next day the officials sought to protect London and a battle broke out on the London Bridge. After the battle Archbishop John Kemp, the Lord Chancellor, persuaded Cade to call off his followers by issuing official pardons and promises to fulfill the demands written in Cade's manifesto.

However, after the peasant forces disbanded, a week later, Cade learned that the government regarded him as a traitor and had issued a reward for him dead or alive. He was subsequently killed in a skirmish near Heathfield, East Sussex on July 12, 1450, after which his body was taken to London and quartered for display in different cities, his preserved head ending up on a pike on the London Bridge (along with those of other leaders of the rebellion).

Despite all the rebels being pardoned, 34 were executed after Cade's death.

Seems the snide remark by Dick the Butcher wasn't such a great idea.

Let's kill all the lawyers. I don't think so.

David J. DePaolo is a California attorney (CBL 116237) and is the president and CEO of WorkCompCentral.

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