Let’s be reasonable
My column for the Daily News is online. It’s called, “Let’s be reasonable.” Here’s the sentence that should get your attention:
The Democrats are right.
Or here’s a sample:
Such a shift in the balance of power between from the consumer to business is too risky for the consumer, but it also sets the stage to hurt business even worse. For if the abuses of business become too great and the unanswered grievances of consumers become too many, then the consumers will resort to the Legislature for redress in the form of burdensome regulations. Then, instead of individual grievances being afforded the rigorous due process of the court system, arbitrary remedies contrived by fickle legislators will be imposed irrespective of guilt.
A very well reasoned argument.
It would seem that govt overeach is the only bipartisan activity that occurs within the Capitol.
Posted by .(JavaScript must be enabled to view this email address) on November 01, 2011 at 0720 hrs
The problem with this argument is that it is patently anti-liberty in that it has government setting an arbitrary limit on what someone in the private sector can earn for the fruits of their labor. We would not tolerate the government setting labor rates for IT managers, welders or artists. Neither should we tolerate such government regulation of attorney fees.
I have no answer on this myself, but the question this begs in my opinion is: What makes an attorney’s rate worth $250/hour or more or less in the first place? (I have never hired a lawyer.) It seems like something of a monopoly to me. It is a rich business precisely because it is historically an office that gets rich people or businesses off of crimes, protecting them from the little guy. The system was never meant to champion the little guy. How did anyone ever come up with the answer that lawyers should receive a hundred thousand dollar payment for a 5000 dollar settlement? Hmm, I am guessing that lawyers successfully argued that that is what the business lawyer would receive so it is only fair that they receive it no matter who they represent. The argument has logic. If only anyone else had logic in their job compensations. A doctor can perform a surgery with a 98% success rate, but the lawyers make more than the doctors did on the 98 successful surgeries for the 2 failures. That does not seem logical.
Beyond that, litigation is always risky. While a lawyer may be incented to take a case past its reasonable course in the hopes of larger fees, he must also weigh the risk of investing more time and money into a case that may not end up in his favor.
Yeah right. Lawyers don’t take cases with no fee unless they win, unless, in their opinion, they are sure they can win. Otherwise, they require client payment. That is a direct quote from my uncle, a lawyer who worked at Quarles and Brady for decades.
It would seem that govt overeach is the only bipartisan activity that occurs within the Capitol.
Brilliant. However, I would add that they are very bipartisan at spending money as well.
The bottom line here is the same as money buying politicians(I wonder if that is why so many lawyers become politicians, they are already used to money being more important than principles.). If the money a lawyer is paid is capped win or lose, i.e. a law firm representing the business could not make more than $15,000 dollars either on the $5000 dollar settlement, more justice and less obscure precedents could decide many cases. No lawyer is going to want to drag a case on for years if they are to be paid a maximum amount no matter what side they represent.
In a sane society, it would seem the farmers would be the richest people as everyone needs food. How did lawyers ever trump them so thoroughly? Lawyers are ‘upper class’ not because we the people need or value them so greatly, but because they are the buffer to and protector of the upper class. The upper class values them as they do CPAs, protectors of their wealth. Anyone else ever notice that most of the highly valued careers in effect, cater first to the rich? That includes politicians, bankers, doctors, etc.
I know, I know, that is starting to sound a little Marxist, but I don’t see a problem with re-evaluation of compensations for careers that are, in essence, required services to a society. If after a national debate, we were all convinced that most lawyers deserve the compensations they receive, great. How bad would this bill be if it limited compensation to both lawyers? Obviously it kills the little guys chances of finding a lawyer if the business can pay 5 times or more than the little guy, in effect can via judgement. However, what if both lawyers were limited to that payment? After all, even $30k in money to attorneys seems steep when the actual conflict is over a $5000 settlement. It seems justice would be better served if lawyers from both sides of civil suits were paid the same fee regardless.
Posted by .(JavaScript must be enabled to view this email address) on November 01, 2011 at 0915 hrs
The result of this bill will be that GOOD lawyers won’t take such cases. Contingency fees are one thing, but limiting the amount of money an attorney can charge based on the type of client is completely ridiculous.
Want to know what will really hurt businesses? Passing this bill and essentially dictating that businesses will have to be represented by attorneys who aren’t at the top of their field. I’m sure a business would much rather pay an attorney and win than save a couple bucks on attorney’s fees and lose.
In short, this bill is a really shortsighted attempt to hammer a group of people Republicans traditionally don’t receive support from—trial lawyers.
Posted by .(JavaScript must be enabled to view this email address) on November 01, 2011 at 1119 hrs
The bill imposes no limit on what anyone can earn in the private sector. It imposes a limit on what one can earn when resorting to the use of a very public justice system.
You will have a difficult time arguing that the extent to which the public must fork over the resources for a court system should be determined entirely by the desires of lawyers and plaintiffs.
Posted by .(JavaScript must be enabled to view this email address) on November 01, 2011 at 1710 hrs
It imposes a limit on what one can earn when resorting to the use of a very public justice system.
Should all users of a public good and/or its delivery system be subject to a limitation on what they can earn BBB?
Posted by .(JavaScript must be enabled to view this email address) on November 01, 2011 at 1839 hrs
Not all users of the public good and/or its’ delivery system demand that the public be compelled to contribute their labor below cost to further their earnings as the legal profession does with a jury, factoropinion.
We already do limit what other users of public goods earn through our numerous regulations and decisions to limit access to those systems. Objectors to this particular case are themselves making the argument that its’ effect will be to limit the use of the system.
Posted by .(JavaScript must be enabled to view this email address) on November 01, 2011 at 1907 hrs
Not all users of the public good and/or its’ delivery system demand that the public be compelled to contribute their labor below cost to further their earnings as the legal profession does with a jury, factoropinion.
Who is it that sets reimbursement rates for jurors?
Surely you are not suggesting that it is plaintiffs or their attorney’s.
Very weak sauce BBB.
We already do limit what other users of public goods earn through our numerous regulations and decisions to limit access to those systems.
Some examples please.
Posted by .(JavaScript must be enabled to view this email address) on November 01, 2011 at 1952 hrs
Good try, BV, but you’re wrong. The bill is limiting the amount a private individual can charge for services. You refer to a “very public” justice system, as if that should matter. Should the amount a company can charge for shipping product on public roads be limited by legislation?
I honestly don’t see how this bill would survive a Freedom of Contract constitutional challenge. The government has no interest in regulating what a private individual can make. This is the equivalent of Democrats asking for increased taxes on oil companies because they make large profits.
Would you support an increased tax on a company based on how much they profit if they use any public infrastructure to create that profit, BV?
This is the government picking winners and losers again, which Republicans seem to hate so much when it comes to the economy, but Scott Walker has been all too happy to do…
Posted by .(JavaScript must be enabled to view this email address) on November 01, 2011 at 2045 hrs
Is the ‘public justice system’ public or private? As long as there has been law there have been men to interpret the law and there have been rich or powerful men able to influence the interpreters in to judging in their favor unless the grievance was between the same class. There has always been a problem when ‘poor’ needs to be represented against ‘wealthy’ whether an individual or a business. The answer to this problem that the US has chosen is to pay both attorneys up to exorbitant amounts of money to litigate, whether the grievance is for hundreds or for millions.
This bill is not the answer, I agree with that. In fact, it is a blatant attempt to put more power back in the hands of the wealthy. BBB mentioned that this is legislating what an individual can make and likened it to oil companies. Aren’t there anti-trust regulations in place to prevent oil companies from charging even more than they do already? Your point is good, I am just looking at the other side of the coin. Every type of business will charge as much as they can for their product with the occasional philanthropic exception in every line of work. Success is often based on whether the commodity or service is optional or required, need or luxury. Regulation is also based upon those things. Everyone needs food and oil today so there are laws in place to guard against monopolies and price gouging, etc.
Are lawyers worth what they charge and are they optional or required? In a country with as many laws as we have, I would argue that they are required and as such, as an ‘industry’ can and should have regulations in place against the same kinds of things that an oil company faces. As opposed to athletes who, though overpaid in most sports are a completely optional ‘industry’. They probably would be regulated and limited too except that a large proportion of lawmakers are also attorneys and the rich favor a well paid attorney becasue they can pay more. Pretty much everyone who has a true say in Government has an interest in not limiting attorney fees.
The bill in Congress, in effect, really does not limit fees to attorneys as a whole so much as limits lesser suits against businesses. Non-corporate lawyers will be against it because there will be less suits, individuals that deserve that $5000 settlement will be screwed, but businesses win big here so all you Walker fans, this is just a jobs growth bill!
I question this: Should any given decision of law deciding the fate of $5000 dollars cost all of us (and it does cost the consumer, don’t kid yourself) $5000, $30,000, $500,000? Are the attorneys giving worth back to societies equal to the amount of compensation they receive and as a required commodity in a society of laws should they not be regulated?
I am not a Socialist in any sense of the word, but so many rules are in place against it(to favor attorneys) that a person can’t represent himself in anything but the most simple cases. Since the law basically requires an attorney for any question of law, I am in favor of regulating their income. They will still have the opportunity to make more if they are better, but limiting fees to fit a decision would be perfectly fine with me as long as they have laws requiring themselves.
Posted by .(JavaScript must be enabled to view this email address) on November 02, 2011 at 0809 hrs
Less lawsuits is always a good thing.
Way too easy to sue someone for ANYTHING - even something totally made up - and the poor sap who is accused ends up either settling to avoid the horrendis attorney fees to defend themselves or paying even more to another attorney to fight it.
System is broke - and since most lawmakers are attorneys - this is how they make their money.
Posted by .(JavaScript must be enabled to view this email address) on November 02, 2011 at 1113 hrs
If you all wish to eliminate these rate limits, then I suggest as an alternative that we prioritize the system to move contingency based cases to the back of the line and allow anyone to opt out of jury duty. We should also eliminate licensing requirements for attorneys, public safety not being involved and the ability of two people to contract for a legal purpose at any rate they wish being so important.
The government HAS regulated freight rates on the highways, VAPolitico and maintains the right to do so. It also has regulated rates for privately owned railroads operating on privately owned trackage and continues to do so, albeit to a lesser extent.
Posted by .(JavaScript must be enabled to view this email address) on November 02, 2011 at 1203 hrs
From VA politico:
Want to know what will really hurt businesses? Passing this bill and essentially dictating that businesses will have to be represented by attorneys who aren’t at the top of their field. I’m sure a business would much rather pay an attorney and win than save a couple bucks on attorney’s fees and lose.
In short, this bill is a really shortsighted attempt to hammer a group of people Republicans traditionally don’t receive support from—trial lawyers.
To me these conclusions are just wrong. This will help businesses. Only bad lawyers would accept a capped settlement for the suitor and businesses can better afford to pay whatever it takes in good attorney’s fees to win. All they have to do is promise a drawn out suit.
While it is a bill aimed at trial lawyers, especially the ones who currently represent the non-monied interests, it is business and wealthy friendly and not shortsighted at all. It is just uncaring of anyone wronged by people with more money than them. I would say that along with killing the public unions, giving tax breaks and favorable legislation specifically to his business supporters, this is part of a cohesive, long term plan to choke off more money from Dem sources. It would only be ‘shortsighted’ if Reps were passing this legislation in the belief that this is ‘good for the common man’. No one thinks that, do they?
Posted by .(JavaScript must be enabled to view this email address) on November 02, 2011 at 1227 hrs
11.If you all wish to eliminate these rate limits, then I suggest as an alternative that we prioritize the system to move contingency based cases to the back of the line
So much for equal justice under the law.
allow anyone to opt out of jury duty.
Would they then also opt out of the right to any future trial by jury for themselves?
Highways BBB?
Surely you jest?
Do you really want to talk about highways and the heavily subsidized ( by all of us) nature of their use by heavy trucks?
Posted by .(JavaScript must be enabled to view this email address) on November 02, 2011 at 1258 hrs
I thought the problem was too MUCH regulation?
Posted by .(JavaScript must be enabled to view this email address) on November 02, 2011 at 1628 hrs
I am well aware of highway usage FOO, and can discuss anytime you wish. The issue, however was raised by VAP in comment 8 and the government has in fact acted, and continues to reserve the power to regulate those rates.
I merely point out the hypocrisy inherent when attorneys cry about their rates being limited by government while at the same time accepting the benefits of a government licensing system and a government court system that limits my rate of compensation as a juror for mandatory participation.
Posted by .(JavaScript must be enabled to view this email address) on November 02, 2011 at 1749 hrs
limits my rate of compensation as a juror for mandatory participation.
Come on BBB what’s with the obsession with jury duty.
It’s not intended to be a career path.
I merely point out the hypocrisy inherent when attorneys cry about their rates being limited by government while at the same time accepting the benefits of a government licensing system
I think VAP and myself are merely pointing out that there are quite a few professions, corporations, hell there are whole industries that benefit from govt enforced licensing/exclusivity as a barrier to entry for potential competitors.
I’d like to practice amateur dentistry and gynecology as a hobby. Do you think I should be allowed to do so?
First question I have on highways is whether or not you recognize the fact that heavy vehicular freight transport does not pay its own way relative to a pure user fee approach?
This is quite a switch from your position on the credit rating agencies and regulation 3-4 years ago.
Posted by .(JavaScript must be enabled to view this email address) on November 02, 2011 at 1916 hrs
What’s with the obsession with collecting a career’s worth of fees from a single case?
All sorts of industries do indeed benefit from licensing. All sorts of industries also have their fees regulated.
Show me a legitimate public health or safety concern with unlicensed lawyering as opposed to say, doctors,
I am well aware of the public inefficiencies of truck transport.
I have switched no position.
Posted by .(JavaScript must be enabled to view this email address) on November 03, 2011 at 0455 hrs
17.What’s with the obsession with collecting a career’s worth of fees from a single case?
And what % of cases provide this level of potential reward, one, maybe two?
All sorts of industries do indeed benefit from licensing. All sorts of industries also have their fees regulated.
Please enlighten me.
Show me a legitimate public health or safety concern with unlicensed lawyering as opposed to say, doctors,
The law only addresses a supposed source of inefficiency in the court system rather than the quality of lawyering being delivered does it not?
I have switched no position.
My recollection is that you steadfastly argued in opposition to any increased regulation or scrutiny of the credit rating agencies after their role in the meltdown of the credit/investment markets was revealed.
We had quite a lengthy conversation about it.
Posted by .(JavaScript must be enabled to view this email address) on November 03, 2011 at 0622 hrs
I don’t support limiting attorney’ fees. I’m just not going to ignore the sudden interest in liberty when lowered fees are involved; an interest that magically disappears when the public foots the bill.
Increased regulation of credit rating agencies remains a non-solution. Risk management is not a substitute for risk assessment. Credit rating agencies have no means of adequately assessing the underlying value of a security comprised ultimately of numerous small assets nor do we possess the means to regulate such an ability into them.
Posted by .(JavaScript must be enabled to view this email address) on November 03, 2011 at 1930 hrs
19.I don’t support limiting attorney’ fees. I’m just not going to ignore the sudden interest in liberty when lowered fees are involved; an interest that magically disappears when the public foots the bill.
So do you support the bill or not?
Increased regulation of credit rating agencies remains a non-solution.
Nonsense?
Risk management is not a substitute for risk assessment.
And risk management is based on the assessment of the risk, Oui?
Credit rating agencies have no means of adequately assessing the underlying value of a security comprised ultimately of numerous small assets
Then they should not be allowed to do so.
That seems relatively obvious doesn’t it?
nor do we possess the means to regulate such an ability into them.
Well yes we do.
Why even allow them to do something even you admit they can’t?
Make them culpable for their assessments.
They’ll decline the business, get it right or go out of business.
Posted by .(JavaScript must be enabled to view this email address) on November 03, 2011 at 1956 hrs
They’ll decline the business, get it right or go out of business.
Absolutely.
Posted by .(JavaScript must be enabled to view this email address) on November 04, 2011 at 0835 hrs
They cannot be culpable, factoropinion. They don’t possess the means to indemnify the risk taken by those seeking their analysis. If we wish to go down a road of having to indemnify an assessment, then the first thing to go will be government bonds.
Don’t allow them to rate a security? Really? We’re going to outlaw the issuance of an opinion?
Caveat emptor. It remains reality for a reason.
Posted by .(JavaScript must be enabled to view this email address) on November 05, 2011 at 1733 hrs
22.They cannot be culpable, factoropinion. They don’t possess the means to indemnify the risk taken by those seeking their analysis.
Is this some topsy turvy version of too big to fail?
I’m sure AIG would happily underwrite the policy.
Have you gone native?
If we wish to go down a road of having to indemnify an assessment, then the first thing to go will be government bonds
So you are making the case that there is some equivalency between derivatives/CDO’s and govt bonds other than both being potential investments?
Please proceed.
It remains reality for a reason.
$$$ and a govt that is bought and paid for with them.
Posted by .(JavaScript must be enabled to view this email address) on November 06, 2011 at 0420 hrs
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