Why people hate lawyers
|Lawyer jokes are the best|
Our society flourishes because it is built upon a system of rules that apply to everyone and which make our society a safe and predictable place to do business… at least they do if you know the rules and follow them. We call these rules “the law” and without them there would be no contracts providing us with a framework for our daily exchanges of money for goods, no consumer protections preventing unscrupulous manufacturers selling our children dangerous toys or toxic food, there would be no police to catch those who would seek to harm us because, of course, without laws there would be no rules to ban harming others, instead at best we’d have vigilante justice. With no laws structuring our society, would we have advanced much beyond the squalor and violence of the measly middle ages? These laws we have that provide the structure to our society exist only because lawyers draft them, debate them and enforce them.
Shakespeare recognised the importance of law and lawyers when he had Dick the Butcher, his brutal killer-henchman to the rebel Jack Cade, utter the immortal line, “The first thing we do, let's kill all the lawyers.” Why did Dick suggest killing the lawyers? Because Cade wanted to be King and they knew that the law and judges stood between Cade and power.
So, why do people hate lawyers so much?
I’m sure there are a lot of potential reasons beginning with a lack of understanding about what lawyers do. For example, some years ago, I received a complaint from a former client that he had been charged £200 for the production of a single letter. What he’d failed to appreciate was the several hours of examining papers, taking his instructions and so on that had gone into the finished product, the single letter. The reality is that if you have a complicated problem and you want legal advice then the lawyer will need to work to understand that problem and that work takes time.
Then there’s the perception that lawyers help bad people. You see that in the newspapers most days contained within stories about human rights law being used to help some nasty person. Again, though people tend to forget that if human rights law protects the bad people it also protects the good people. People also forget that if a lawyer is representing a bad person then there will be a lawyer on the opposite side attacking the baddie.
Those are good reasons that may well lead people to hate lawyers but there’s something else that I think is relevant here.
People see lawyers as money-grabbing bastards.
Now, this is a point that is easy to understand, even for lawyers… if they try hard. I have instructed a number of lawyers in my time for various reasons. I have never been charged less than £180 per hour and at most I was charged £1,000 for an hour of a very junior barrister’s time (although there I’m falling into the same fallacy as a I mentioned above because although she was with me just less than an hour she would have had to undertake hours of preparation for the meeting – I don’t know how many but I’m still angry so I’m sticking with a grand an hour… bloody money-grabbing lawyers). Of course, there are good reasons why lawyers cost so much – because it’s really expensive to be a lawyer. That said, when you look at criminal law you’ll find lawyers working for far less than minimum wage so not all lawyers are fat cats.
The money-grabbing image isn’t helped by our American cousins and their fondness for class action lawsuits and that’s something I want to look at in some detail.
Okay Nick, so what is a class action lawsuit?
I’m glad you asked. A class action is a case where one of the parties is a group of people who are represented collectively by a member of that group (thank you Wikipedia). Why would you do such a thing? Well, there are only two types of people who sue other people. First, you have those who anticipate a good chance they will get something they want from the action, e.g. compensation, an injunction, a declaration they were wronged by a public body, etc. Secondly, you have people so angry at what they see as an injustice (whether great or small) that they sue to prove a point. The overwhelming majority of cases fall into the first category, for obvious reasons. Because most people only sue if it is financially worthwhile that means that people who lack the resources to sue cannot enforce their rights no matter what the merit to their case maybe. That’s where a class action comes in. By combining resources, a group of people who all suffered in the same way can bring a combined action against the same defendant.
“Class actions can also be a way of leveling [sic] the playing field for poor or economically less powerful individuals. Normally an individual, especially a poor person, is at a great disadvantage in a court case against a well-financed corporate opponent who can afford high-priced lawyers. But when claims are brought together in class action form, the aggregate amount may be large enough to make it possible to engage the services of equally skilled counsel. The effectiveness of class actions in empowering the economically powerless against the economically powerful may be one reason that they have been under almost constant attack by business interests and conservative politicians.”
In theory, class actions are a way for groups harmed by others to seek justice and compensation. In reality, are they always used that way and if the loss to each individual is very small, to the point that it is not worth lawyering up, then how do these cases come about? The answer is that lawyers push them as they might push a product for sale because lawyers are, in the US at least, incentivised to bring private group enforcement actions. I wrote about an example back in February 2011 when my in-laws became involved in Sobel et all v The Hertz Corp et al. In that case, three teams of attorneys worked for many years to assist claimants, none of whom gave a monkeys about the case or their losses, in recovering a $10 car hire voucher because a small fee had been misapplied to some car hirers. Incidentally, since I wrote that post in early 2011, I have discovered that the final settlement didn’t happen until May 2015, six years after the last erroneous charge was applied. What fee did the lawyers negotiate for themselves from this staggering win? A cool $1,400,000, or to put it another way, a fee that is 140,000% larger than the compensation awarded to the individuals in the group.
One of the problems with class actions is that because the compensation sums are so small there is no benefit to the client in supervising the lawyers – they simply aren’t going to get enough out if they win and they have nothing to lose, which makes taking a detailed interest in the case worthless. Therefore, these cases are likely to be entirely lawyer driven, i.e. the lawyer will spot the claim, recruit clients, manage the case and take the biggest share of the winnings so the lawyer has the most to gain or lose in these cases. Now, if I’m a lawyer looking to make some cash would I been keen on fighting a case to trial and taking the risk of losing my fee given al the hard work I would have put in or would I aim to settle as early as possible? Here’s an example of what could happen from Ms Cooper Alexander from Duke University,
“[S]uppose a lawyer brings a class action. Immediately after the case has been filed, the defendant offers to settle the case for $100,000. Let us say that in this state, the lawyer expects to be awarded a fee equal to 20 percent of the total recovery, or $20,000. The lawyer has spent 10 hours preparing the complaint. Thus the lawyer would be compensated $2,000 for each hour of work. Let us suppose that the lawyer believes that by litigating the case for 3 years, spending 5000 hours of lawyer time on the case and expending $100,000 in litigation costs, she could win a judgment of $1 million for the class. This would clearly be a better outcome for the class. They would share $800,000 rather than $80,000, after the 20 percent attorney’s fee is deducted from the recovery. But for the lawyer would receive only $36 per hour worked.”
The US Supreme Court is currently hearing Frank v Gaos, a matter dating from 2010 in which the personal data of 129 million Google users, including their search histories, was sold to third parties without the users’ permission. There is clearly a strong public policy issue at the heart of the action, namely whether internet users can expect their data to be protected by online companies. But, is this a case being driven in the interests of clients or lawyers? Mr Frank certainly thinks it’s being driven by the lawyers interests and took the matter up with the Supreme Court after Google agreed to settle the case for a fairly paltry $8.5m – I can’t help suspecting that the user data of 129m users must be worth far more than that, especially had the data breach caused financial or personal harm to users, something of which Google appeared uninterested at the time.
I’m no mathematician but, $8.5m divided among 129m users equals about $0.06 each. Or, it would do if that $8.5m was all for the users. In fact, $3.2m of that is going to pay the lawyers, which means there’s $5.3m left over, which equates to a grand total of $0.04 per member of the class. A magnificent win (for the lawyers). Obviously, the stamps to distribute these teeny-tiny cheques will cost more than the award so don’t expect to see a cheque from Google any time soon. Instead, the plan was to apply the cy pres comme possible rule, which means “as close as possible”, or to put it another way give the money to somebody else who will do some good with it to benefit the users who had their data sold. You’d expect the cash will be going to good causes and organisations who will fight for users’ rights wouldn’t you? It definitely won’t be going to Google’s mates and the attorneys’ alma maters will it now? Um… well 47% of the award is going to the law schools attended by attorneys for the class litigants with the remainder going to organisations that already have close links to Google, in other words, organisations they probably would have given the money to anyway. Who has won in Frank? So far as I can see, only the lawyers. Justice Samuel Alito seems to share my view when he remarked that the “attorneys get money, and a lot of it,” while users, “get no money whatsoever”.
Class actions aren’t nearly as big a thing in the UK as they are in the USA, but few people understand that and it is difficult to read about lawyers taking huge pay-outs while doing almost nothing (in Frank, literally nothing) for the people they represent. Maybe that’s one of the reasons lawyers are so despised.