Via Andrew Sullivan (h/t Dave Hoffman), an arresting graphic about how a small difference in speed can multiply severalfold a pedestrian’s likelihood of dying in a car accident:
This is fact that could be played up a bit more by the public safety community. I’m aware of only one locale in the US where this fact is effectively publicized: New York City. I’m not sure if they’re still up, but the Big Apple had a number of billboards showing a skull superimposed over a child’s face and saying, “At 20 mph, it is likely he’ll survive an accident; at 30 mph, he will most likely die. That’s why the City speed limit is 20 mph.”
Maybe instead of doing idiotic things like banning Segway tours, Mayor Menino could take a page from our friends in New York and have billboards plastered all over the City warning how a little difference in speed can make a big difference in survivability.
A recent article by law professor Nora Freeman Engstrom in the Georgetown Journal of Legal Ethics explains why personal injury “settlement mills” exist and why, if you have a serious personal injury case, you should make sure that your lawyer is not running a settlement mill (hat tip Point of Law and Drug and Device Law for the original post).
A “settlement mill” is a law firm that handles a high volume of cases, usually specializing exclusively in a certain niche like car accident cases. These law firms, relying mainly on paralegals and administrative assistants, settle an astounding number of cases. In short, they focus on quantity and not quality. They aren’t interested in trying cases because, with the volume of cases that they have, there’s just no time for jury trials.
Why do these settlement mills exist? Prof. Engstrom theorizes that it’s because the insurance companies actually like settlement mills, despite having to fork over money to them in settlements. Professor Engstrom writes that insurance companies and settlement mills “share two sets of overlapping interests: speed and certainty.” Both insurers and settlement mill lawyers want to close out cases quickly – the insurers to take the case off their books and the lawyers so that they get paid.
The desire for certainty that insurers and settlement mills share comes in the form of certainty about damages. An insurance company doesn’t want a case to get to jury trial where a jury can award virtually any amount in damages for pain-and-suffering; it wants the certainty of a pre-trial settlement that caps its liability. Likewise, the lawyers at settlement mills want the certainty of a settlement rather than rolling the dice in a trial they’ll spend hundreds of hours preparing for but might ultimately lose.
As a result of their overlapping interests, settlement mills and insurance companies work out a tacit bargain: the insurance companies pay out small settlements of say $2,500-$5,000 to the settlement mills even in questionable cases. What they get in exchange is the certainty that the serious case, the one that might be worth millions in front of a jury, will almost assuredly never get to trial.
How can you tell if your lawyer is running a car accident settlement mill? Engstrom’s article identifies a number of characteristics of settlement mills, but they’re often hard for an outsider, such as a client, to assess. One red flag that she does mention is a so-called tiered contingency agreement. Under a tiered contingency agreement, the fee that you pay your lawyer goes up if your lawyer has to take the case to trial. If your lawyer offers you a tiered contingency agreement, run, don’t walk, away.
In addition to Engstrom’s warning about tiered contingency fee agreements, I’ve come up with a few more tips about how to spot a settlement mill:
- The law firm is very neat and organized. This one may sound a little funny. Don’t you want a lawyer who’s organized? Well, you want a lawyer who’s on the ball, but that doesn’t necessarily go hand in hand with having an office that’s immaculate at all times. But settlement mills are. They have to be ultra-efficient to handle the volume of cases that they do. That means they have to have an incredibly organized office. From the outside, it looks like they’re running a tight ship but all it really means is that they’re interested in turning over your case and moving on to the next one.
- They use a lot of specialized software. Companies come to me all the time trying to sell me legal software. I never buy any of it because I have no interest in buying and learning a piece of software that will save me a few seconds a day. Plus, most of what I do is too diverse for specialized software to be of much use to me. But in law offices that focus on a high volume of the same kind of cases, proprietary software is a necessary time-saver. So, for example, most title attorneys who do a great deal of residential closings have software programs that do a lot of the work for them. So too a lot of personal bankruptcy lawyers. The same holds true for the auto accident settlement mill lawyer.
- If you get to talk to a lawyer, the lawyer always calls you back instead of immediately taking your call. At a settlement mill, a paralegal or administrative assistant is doing most of the work on your case. And the settlement lawyer has way too many cases to have time to personally take your phone call. So it will be virtually impossible to get your lawyer on the phone. But for me, the dead giveaway is when you finally get to the end of your rope and go ballistic on the lawyer’s secretary, forcing her to talk to you on the telephone. You won’t be patched through by the secretary directly to the lawyer; the lawyer has so many clients that she knows nothing about you or your case and has to refresh her memory with the case file before calling you back to speak to you.
With this week’s approval of a bill in the Massachusetts House that would ban texting while driving, Massachusetts is poised to become the twenty-ninth state to impose such a ban.
Why it took Massachusetts so long to get a texting ban passed is almost beyond comprehension. The cell phone companies are not lobbying against these laws, nor are cell phone users banding together to oppose them. Practically no other safety measure out there can do so much to reduce car accidents as a texting ban. Just another example of the inertia on Beacon Hill, I guess.
Massachusetts Lawyers Weekly reports in its June 14, 2010 issue that personal injury plaintiffs lost in the vast majority of cases tried in Massachusetts courts in 2009. Under Mass Lawyers Weekly’s rather generous methodology, a “win” for a plaintiff was defined as a case in which the plaintiff received any money at all, even if it was only one dollar, and that dollar was less than what the defendants had previously offered to settle the case. Lawyers Weekly defined a “loss” as a case in which the jury awarded zilch to the plaintiff.
Using these definitions of a “win” and a “loss,” Massachusetts Lawyers Weekly broke the data down by county and found the following percentages of plaintiff’s wins in Massachusetts state courts in 2009:
- Suffolk County (Boston, Chelsea, Revere and Winthrop) – Plaintiffs won in twenty-five percent of the trials.
- Norfolk County – Plaintiffs won in fourteen percent of personal injury trials.
- Middlesex County – Plaintiffs won only twenty-seven percent of personal injury trials.
- Bristol County – Personal injury plaintiffs won only thirty-two percent of trials.
- Essex County – Plaintiffs won thirty-six percent of jury verdicts.
- Hampden, Berkshire, Franklin, and Hampshire counties – the percentages of jury verdicts for plaintiffs in these counties ranged from twenty-nine to thirty-three percent.
The data are even worse for Massachusetts personal injury plaintiffs if you revise the definitions of a “win” and a “loss” to fit what most lawyers mean by those terms. Superior Court Judge Brady has kept a personal log of all the negligence trials he’s presided over since being appointed to the bench in 1993. Judge Brady scores a case a “win” for the plaintiff only if the amount the jury awards the plaintiff is greater than the last settlement offer made by the defense. In the 151 negligence trials that Judge Brady has heard in his nearly twenty years on the bench, only 16 have resulted in wins for the plaintiff.
The odds of prevailing at trial may seem pretty dismal for Massachusetts personal injury plaintiffs but there are a few things that should be said about this data. First, there’s an obvious selection bias at work in this study. About ninety-eight percent of cases are resolved by either pre-trial settlement or some form of pre-trial motion to dismiss.
The game theorists tell us that the two percent of cases that make it to trial are cases where at least one party is overestimating the strength of its hand. If you assume a rational defendant in a case, once the defendant is convinced of his legal liability and the dollar value of damages that a jury would force him to pay, the defendant will settle the case, simply to avoid the time and expense he would have to pay to defend the case through trial. The cases that don’t settle tend to be troubled cases where there is vast disagreement about either the defendant’s legal liability or the amount of damages. So the vast majority of personal injury plaintiffs in Massachusetts fare better than the trial data would suggest because the trial data represent the outlier cases that make it to trial.
Nevertheless, I don’t think Massachusetts personal injury lawyers should be happy with those numbers. I think they reflect a certain level of complacency by some Massachusetts personal injury lawyers about how cases should be investigated and tried to a jury. I’ve previously blogged about how Massachusetts’ largest medical malpractice verdict of 2009 – a $15 million case – was turned down by a number of Massachusetts medical malpractice law firms before being taken by a California attorney who was much more aggressive than most Massachusetts medical malpractice attorneys in terms of the number of depositions that he took and the theories that he pursued.
I sensed a lot of defeatism in the Massachusetts Lawyers Weekly article about trying cases in certain counties, especially Norfolk County. I’ve lived the better part of my life in Norfolk County and I have no compunction about trying a case to a Norfolk County jury. You simply need to know who your jurors are and frame the issue properly for them.
The passage yesterday in the Senate of a bill banning text messaging while driving and imposing visual and other medical tests on drivers over 75 years old is good news inasmuch as it presages a ban on hand-held texts, but the potential ban on hands-free devices and the medical review of seniors raise a lot of questions.
There really is no research data showing that hands-free wireless devices are anymore distracting than your car radio or carrying on a conversation with a passenger in your car.
The idea of having seniors’ doctors pull their license also makes me uncomfortable. A doctor’s duty is primarily to his or her patient, just as a lawyer’s duty is to his or her client. I wouldn’t like the idea of having to rat my clients’ driving out to the RMV (such a law would represent an unprecedented abrogation of attorney-client privilege) and I don’t think doctors should have to do it either. If the evaluating doctor is the driver’s personal physician, it really represents an intrusion into the doctor-patient relationship.
It appears that there are a lot of details to be ironed out about the medical evaluations of senior drivers. What happens if one doctor declares a patient unfit to drive and the driver gets a second opinion pronouncing him capable of driving? Why is the first doctor’s opinion sacrosanct and inviolable? If this is going to work at all, there need to be objective criteria that are employed, rather than doctors’ loosey-goosey opinions. Otherwise, there may be Due Process issues with the proposed law.
If Massachusetts passes the Senate version of the bill, we will be going further, perhaps, than any other state in regulating driving by seniors. According to this chart by the Insurance Institute of Highway Safety, the only jurisdictions that require anything more of seniors than eye tests or special renewal procedures are New Hampshire and Washington, D.C. and the Massachusetts bill would seem to be going even further than those jurisdictions.
This is something all drivers in Massachusetts will be keeping an eye on.
Orin Kerr, at the libertarian legal blog The Volokh Conspiracy, points to a new study claiming that laws prohibiting cell phone use while driving have not succeeded in reducing car crashes.
Kerr seems to suggest that, in light of the study’s data, such laws should be repealed.
It seems to me that the data, if true, are consistent with a number of conclusions, other than the conclusion that it’s perfectly safe to talk on your phone while driving. First, if these laws are ineffective, it may be because of underenforcement by the police. Having a law on the books is one thing, but in order to get people to change their behavior, the law has to be enforced. Maybe the police aren’t enforcing the law, or they are underenforcing the law. For example, Massachusetts police generally don’t stop cars to issue citations for violations of the state seat belt law; such citations are tacked on as add-ons, if a car is stopped for another reason, such as speeding.
Second, talking on a cell phone while driving might be such a ubiquitous phenomenon that, even in areas where police are enforcing the law, they are not making a dent in the number of people actually talking on their phones.
These competing explanations seem much more plausible to me than the conclusion that talking on a cell phone while driving is perfectly safe. Kerr’s conclusion simply flies in the face of the research showing talking on your cell phone while driving is very dangerous and makes drivers much more likely to be involved in a car crash.
In a move that the Department of Transportation should have made long ago, a new regulation will prohibit truckers from driving while texting.
The move follows on the heels of President Obama’s October executive order prohibiting federal employees from texting while driving.
As the satirical newspaper The Onion jokes, the text messaging ban might be a boon for country music songs about how lonely it is for truckers on the open road.