August 24, 2004

More Things Change

by PG

From Lawrence M. Friedman's A History of American Law:

These accidents were the raw material of possible lawsuits. Litigation was costly, but lawyers took cases on contingent fees. If the case was lost, the lawyer charged nothing; if he won, he took a huge slice of the gain. The upper part of the bar looked with beady eyes at this practice, "most often met with in suits for alleged negligent injuries." Thomas Cooley thought they were beneath contempt: "mere ventures," no better than "a lottery ticket." They debased the bar, brought "the jury system into contempt," and horror of horrors, helped create "a feeling of antagonism between aggregated capital on the one side and the community in general on the other." But the contingent fee had its merits. A poor man could sue a rich corporation. By 1881, the contingent fee was said to be an "all but universal custom of the profession."

Neither the number of accidents nor the contingent fee system, in itself, can completely explain the rise in litigation. To justify taking risks, and to make a living, the lawyer had to win at least some of the cases. [...]

Small wonder, then, that the law of industrial accidents grew monstrously large. In 1894, William F. Bailey published a treatise on "The Law of the Master's Liability for Injuries to Servants"; the text ran to 543 pages. "No Branch of the law," Bailey wrote in the preface, was "so fraught with perplexities to the practitioner." The law was wildly nonuniform, full of "unpardonable differences and distinctions." This meant that, by 1900, the rule had lost some of its reason for being. It was no longer an efficient device for disposing of accident claims. It did not have the courage of its cruelty, nor the strength to be humane. It satisfied neither capital nor labor. It siphoned millions of dollars into the hands of lawyers, court systems, administrators, insurers, claims adjusters. Companies spent and spent, yet did not buy industrial harmony -- and not enough of the dollars flowed to the injured workmen.

August 24, 2004 05:19 PM | TrackBack

I started my law practice in Massachusetts in 1954. Workers' Comp was not considered a lucrative practice area, except for a few specialists who found ways to develop third party actions against deep pockets. As the years went on, more and more attorneys started handling these Comp cases, realizing that big bucks might be available in these third party actions.

Keep in mind the limits of the availability of common law to compensate a worker for a job related injury. It took a long time to establish even minimal benefits during the early 20th Century. Even today, from the standpoint of the worker with a serious injury, or worse yet death, the benefits are no where near being on easy street. The Workers' Comp systems were designed to minimize the need for an injured employee engaging an attorney. But as technical defenses were developed, the workers needed to engage counsel. As in physics, for every action there is an equal and opposite reaction, to wit the adversarial system of the law.

For a history of this subject, see "The Accidental Republic" by John Fabian Witt (2004).(KF 3615 .W58 2004)

Posted by: Shag from Brookline at August 25, 2004 07:22 AM
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