Listening to people
complain about the state of society, government intrusion, burdensome costs and
the hosts of problems surrounding insurance and litigation, I am struck (in
almost every case) by the tendency toward reductionism. Each person tends to
assess the situation from their own limited perspective and experience and
render judgment on that basis without ever taking the time to look into the
larger picture. They're often right in
one sense but because their inquiry is limited, they almost always
represent but one portion of a larger truth and thus in the end, their
depiction and judgment is skewed, distorted and ultimately misleading. This is
hardly surprising and yet it often proves destructive, especially when people
act in what must be described as ignorance.
For example, who is to
blame for the present state of affairs when it comes to costs and the regulation
of consumer goods and services? The government, or perhaps the lawyers or the
insurance companies? Or someone else? All the aforementioned elements deserve
some blame and the latter (lawyers and insurance companies) are certainly
guilty of avarice but additionally the litigants are themselves often at fault.
In some cases they are wronged people seeking redress and yet the very nature
of that redress should perhaps be reconsidered. Avarice feeds the problem but
so does the quest for 'justice', especially if it is combined with or masks a
deeper desire for vengeance. And let's be honest all too often the 'justice'
sought is also combined with financial opportunism even if it masquerades as
being fair and reasonable restitution.
Ah, someone will say. I'm
going to make an argument for tort reform. Not exactly. As a Christian I don't
believe we should be seeking either justice or vengeance from secular courts.
Like the Apostle I believe it is better to suffer the wrong. I realise that for
many who have a great deal invested in say a business, such thinking is
practically speaking impossible, reckless and perhaps risky beyond the
boundaries of reasonableness. I might agree with them but at that point I would
urge them (if they are professing Christians) to re-think the notion of pilgrimage
and exile, money and possessions and certainly worldly security, goals and
motivations.
But what about the rest
of the people, those who aren't concerned with Christian ethics? Are they right
or wrong in seeking redress? Isn't that what makes the world go around? Well,
in one sense I've already answered the question. As lost people they of course
are going to think and act like people who place their hopes in this life and
what it has to offer. They will seek their own and effectively that is the
problem. This principle of self-interest may be akin to a law but it's not a
natural state of affairs. It's the result of sin and thus it cannot be the
basis for some kind of ostensibly Christian socio-economic ethic.
Everyone is out for
themselves and despite noble statements and sentiments they are quite willing
to trample others in order to come out ahead. It's a dog-eat-dog world but as
Christians we're not supposed to live that way. We are right to reject
Darwinist cosmology but we must also reject Darwinist ethics, economics and sociology.
The insurance industry is
certainly deceitful. It is cold and calculating and often employs ethically
dubious and misleading policies. It aims to sign up as many people as possible
under broad and generalised categories and then finds one hundred and one ways
to dodge payment when it comes to specific claims. Its money is not made so
much on the premiums but in investing them. It feeds on fear and is effectively
an outgrowth of the financial sector. Investments must be secured, risk must be
mitigated and the industry also represents in some cases a means of
accessibility to the larger financial system. In the American system this is
most poignantly demonstrated in the realm of health care but it (the notion of
access) is by no means restricted to that sphere.
Lawyers on the one hand
can defend the accused, the helpless and seek justice and in addition to this
type of practice there are lawyers that are largely (but not entirely) exempt
from the present discussion. The 'others' I speak of are essentially little
more than mercenary bureaucrats for hire who know how to navigate the system,
identify potential dangers and craft documents that eliminate ambiguity. But
then there are the trial lawyers, those who seek financial compensation for
parties that have been wronged.
John Grisham's extensive
body of work has convincingly presented fictionalised and yet often all-too-realistic
examples of the trial lawyer. He presents them in both positive and negative
terms. He clearly believes they serve a viable and even necessary purpose and
yet he would be the last person to deny that some are avaricious, shady and
certainly unethical.
In the American system it
is difficult to hold large corporations and entities accountable for wrong
deeds. US corporate law often separates company misdeeds from actual criminal
charges. Sometimes corporate crimes are so egregious that some within the
company are held to criminal account but all too often the only way to 'wound'
a corporation is through its pocket book. Punitive rewards and bad publicity
can harm a corporation and yet in many cases the costs associated with a
verdict are often quickly absorbed or passed down the line to consumers and
others. This is especially true when it comes to insurance companies who like
other corporations usually move to settle cases out of court and keep them
quiet.
Something could also be
said about the racket known as arbitration. Not every consumer is (or can be)
forced into this framework but you can be sure that whenever they can,
corporations utilise this tool when it comes to resolving problems with employees,
contractors, vendors etc... If there's a way they can work an arbitration
clause into a contractual relationship you can be sure they will. It's in their
favour to do so and not only will they happily foot the costs, they'll probably
demand it.
There's something of a
vicious circle at work. Insurance companies don't want to be sued and so they
push for regulations and other measures that protect the industry. Those they
cover don't want to be sued and so they carry insurance policies even while they
complain about the costs.
Corporate lawyers work to
cover bases and close loopholes while trial lawyers seek to win money and fame
by suing corporations, earning large fees and building their reputations. But
trials are risky and a defeat means a great deal of often uncompensated lost
time and possible embarrassment. In many cases they are happy to use other less
risky means such as the settlement. Even many class action suits find their
conclusion in the form of settlement. Sometimes the compensation paid out to
the litigants is helpful, other times it is paltry and token. But the one group
that always comes out on top is the lawyers.
The settlement is
sometimes a practical compromise, in other cases it's a means for a corporation
to quickly dispense with a potential problem but for many lawyers it's a means
of little more than an old-fashioned shakedown.
They will threaten or
file a lawsuit and in many cases the corporation will look at what it will cost
to pay their legal team to defend them. Sometimes this cost can run into the
tens of thousands of dollars, and often much more. Since they're going to have
to spend that much to defeat the lawsuit, they might as well just pay that
amount or something in that ballpark in the form of settlement and thus make
the problem go away, eliminating the risk of having to pay more. Many just view
it as an unfortunate cost of doing business.
The lawyer can use the 'threat'
hoping for a settlement and at that point make a large sum of money for
relatively little work. It is often a sleazy business and from a Christian
standpoint highly unethical. I say this fully acknowledging there are many
Christians engaged in this type of shakedown-settlement model of legal
practice. I've all but seen it firsthand and it's pretty sickening. I can think
of some 'Christian' lawyers that I would not only have trouble communing with,
I think I would struggle to shake their hands and remain cordial. They are
literally serpents. I say this even while family members and friends think them
wonderful. And no wonder, through their shakedowns and the manipulation of
their clients, everyone made a lot of money.*
While I have little
regard for corporations and insurance companies who (out of a misguided and
skewed ethic) are all but duty bound to seek the most efficient and cost
effective road... at the expense of all other considerations, it must be
admitted a great deal of the blame must be laid at the feet of initiating
litigants and the often avaricious lawyers who take up their cause. Of course
the corporations and insurance companies will also do this to one another and
when an insurance company comes under attack and is driven to settle, the first
thing they do is go after anyone else even remotely involved in the hope of
spreading out and dispersing the burden.
This is true in everything
from a car accident to a house fire. In the car accident, they'll go after
other drivers (and their insurance agencies), local government, the state road
authority, the car manufacturer or anyone else they can burden with an iota of
blame real or imagined. In some cases people's lives are destroyed. Jobs are
lost, insurance becomes unattainable which can lead to forfeiture of various
licenses and certifications and this happens even though they may have had
little or nothing to do with the incident. Indeed actual negligence may have
nothing to do with it. They simply have been caught up in a destructive and
aggressive process that seeks to assign blame wherever possible and extract
vengeance in the form of settlement money.
And again I can think of
instances in which this has happened to people, innocent people from my
standpoint, and the persons on the other end... the ones doing the shakedown
are professing Christians their Christian lawyers.
In the case of a house
fire, the insurance investigators will augment the police investigation, in
some cases throwing more time and money into it, often making the police all
but reliant and dependent upon the funding and assistance of the insurance
industry. As a consequence of this arrangement the investigators will look for
building and electrical code violations and go after contractors (and their
insurance) even if a code violation in the breaker box had nothing to do with
the fire. I've seen all these scenarios at work. Thankfully for me I was not
directly involved but know the people who were and followed the whole maddening
process as it developed. People love to talk and I'm always happy to listen,
learn and ask questions.
Continue reading part 2
Continue reading part 2
* I know of one instance in which the plaintiff did not fully
grasp what was happening and thought the settlement was something akin to
standard procedure. In this case a child was killed in a car accident and
everyone kept telling the parents to not sign anything. Of course the insurance
companies move quickly and try to offer a token settlement. Ten or twenty
thousand sounds like a lot and so some people will take it.
Of course the lawyer, a recommended 'Christian' lawyer in
this case got a hold of them and promptly went after other drivers (directly
involved or not), the local government, the department of transportation and
anyone else possibly involved. The parents didn't want to 'sue' anyone and this
lawyer kept telling them not to worry, they weren't 'suing' anyone. While
technically true, it was completely misleading because his phone calls and
pursuit of settlement carried the threat of lawsuit and you can be sure
everyone knew it.
When the parents began to balk and considered backing out,
this filth passing himself as a Christian manipulated them and told them that
they shouldn't pass this up and they could use the money to glorify God, they
could give it to the church in their child's name and the like.
Of course the lawyer was probably having a panic attack
because the parents were about to back out and he would miss his opportunity to
make the big payoff. By the time all was said and done, over a million dollars
was paid out and of course the lawyer made several hundred thousand.... not bad
for probably about 30-40 hours of actual work.
And yet what happened? It was a shakedown. Blame was being
assigned for the death of a child even when humanly speaking it was an
accident. No one was negligent and even if they were, does the money bring your
child back? How does taking money (at implied gun point) glorify God or assuage
grief? The various insurance agencies paid up because they didn't want to
tangle with a lawsuit. The lawyer used other tricks, like when he confronted
these companies he had a nice 8x10 glossy photo in hand of the dead kid. It's
not hard to visualise him sliding it across the conference table and the
opposite side grimacing. The lawyers representing the defendants know that such
tactics will work on a jury. In this case their philosophy is pay the money,
and get these people to go away.
I found the whole episode to be obscene but the worst actor
in the whole affair was the so-called Christian lawyer. I have more respect for
someone running a cash register at minimum wage than I do for such a person.
Truly he has his reward. I hope he enjoys it.