ABC's Hatchet Job

A recent ABC special took a careful (and critical) look at the legal profession. It's hardly surprising that lawyers are bristling. Was the report objective? A group of attorneys has some doubts.

The following is an excerpt from a discussion on Lexis Counsel Connect, the largest private online network for attorneys. LCC is part of American Lawyer Media and is affiliated with Court TV. All the participants gave permission for their comments to be reprinted here.

Barry D. Bayer, Law Office Technology Review: ABC did a hatchet job on the legal profession in a well-advertised "special" last night. (It's a new year....Let's pick on the lawyers again.)

This is not to say that there were no valid points made. Even a hatchet can reach a target, just not with a lot of discrimination. But there seemed to be a lot of error, a lot of questionable interpretation, and a lot of things left out. There was some reference to the "reporter's" own lawsuit (someone-or-other vs John Stossel), brought against him by a dentist who claimed that he had been defamed. The case was carried on Court TV. Anyone around know what the case was really about?

Jeremy D. Mishkin, Montgomery McCracken: The suit against the reporter was brought by Philadelphia dentist Owen Rogal, who specializes in diagnosing and treating TMJ [a jaw disorder]. 20/20 did a report on Rogal in which they filmed him examining the reporter and telling him that he had the disorder.

The point of Stossel's piece was that Rogal was a quack, finding TMJ problems in a huge percentage of his patients. Rogal sued, claiming that the outtakes of the piece proved that what was broadcast was out of context and defamatory. Rogal was represented by M. Mark Mendel, a well-known plaintiffs' attorney here in [Philadelphia].

No doubt Mr. Mendel left a bad impression on the reporter, but the trial in the U.S.D.C./E.D.Pa. [which Court TV carried in 1993] resulted in a defense verdict, and the trial judge was at least considering whether to impose sanctions -- in the form of requiring that he pay defendants' attorneys fees -- for Mr. Mendel's conduct at trial and in discovery.

Marc Williams, Huddleston Bolen: While Stossel's perspective is definitely pro-tort reform, I think it is unfair to call it a hatchet job. The reality is that a good deal of the non-lawyer population finds the tort system out of whack, and while they yearn for reform, their reaction to changes like loser-pays would be much like their impression of the Republican budget proposal: "Oh no, don't cut that!"

I think the attacks on the overly lucrative nature of mass tort and class actions is right on target. And while I don't like the idea of pure loser-pays, I think a system that discourages the filing of marginal claims and which encourages settlements (i.e. a modified Rule 68), needs to be considered in order to add some balance to the system.

Barry D. Bayer: I too have qualms about some actions of some lawyers, and a little more judicial activity for egregious cases could be in order. (The San Francisco perennial plaintiff deserves to have someone look into her activities, assuming that the report had anything to do with the facts.)

However, Stossel's comments on the Intel Pentium thing strongly implied that Intel found out about the problem and immediately made amends. That is not my memory at all. As I recall, Intel was shipping bad chips knowing it was shipping bad chips and knowing that purchasers didn't know -- and when they were found out, they told us that the problem was too rare to bother about. Only after significant pressure, including threatened or actual legal action, did the company agree to replace the chips.

Stossel also implied (if he didn't directly say) that it takes three or four years to get to trial because of abusive discovery. (And I would love to see copies of his attorneys' discovery requests -- did he go along with such things?)

John E. Netti, Jr., Attorney: Why is it acceptable for people in all other professions to make money? Don't people in all other professions use all the tools at their disposal to do their job better than the next person? If we did not pursue our cases in the manner that we do, it would be called malpractice!

There is probably no other profession that has more checks and balances than the law profession -- state bar associations, judges, appeals courts, etc. If America only sees reports like Stossel's, our reputation (what's left of it) is in dire jeopardy. It is especially disheartening, to me, to see other lawyers, on television, making generalizations about the legal profession. I also believe that Stossel had a personal vendetta against lawyers as a result of his lawsuit, and he has the added advantage of having a nationwide audience at his disposal.

Parry Aftab, Aftab & Savitt: I wish that Court TV would explain about the "English" rule vs. the American rule, and why the American rule allows the little guys their day in court. As I understand it, there are no contingency cases in the UK -- they aren't allowed. Has this changed? Both contingiency cases and the American rule allow the small guys to fight the big ones.

Karen Dillon, American Lawyer Media: Why can't the common man in Britain bring a case easily? There are a few reasons.

One is that contingency fees are not allowed, and in fact are widely distained by many Brits as a symbol of American excess (e.g. the McDonald's hot coffee case). Even the burgeoning tobacco litigation in England is funded by British legal aid, not contingency fee work.

On top of that, the British system generally requires the loser in a litigation to pay the legal fees of the winner. That has a serious chilling effect on people bringing longshot cases in the first place and means that appeals in England are almost nil. I once did a story on the "most appealed" judge in the British High Court. He was appealed something like 15 times in one year. Total.

I spent four years in England covering the British legal profession for our sister publication in London, Legal Business, and found a startling difference between the way American lawyers and British lawyers are viewed by the public. American lawyers are reviled. British lawyers are tolerated.

James Kolb, Attorney:

It was snide and misleading, and to highlight a case of a perennial plaintiff as something one might find in one's own neighborhood just flies in the face of facts. The program reminded me of the commercials that aired a few months back showing the little leaguers fading away because they will be so affected by lawsuits that they won't be able to play ball any more.

The McDonald's coffee spill case was explained in a letter to the editor of the Washington Post early in the fall from the injured woman's son. It appears that the jury was greatly offended when the members found that McDonald's had delayed, delayed, delayed and even had an internal memo which hoped for the demise of the woman before the case went to trial. That was surely a case where the jury acted to sock it to a dishonorable defendant.

Steven Nauman, Best Koeppel: A Houston columnist, Ken Hoffman, noted that John Stossel did have a prior "brush" with the law and came out way ahead. Here's an excerpt from Hoffman's column in the January 3, 1996, Houston Chronicle:

"Monday night on 'The Trouble with Lawyers,' ABC reporter John Stossel ripped into the American legal system like a pit bull terrier....Wait a minute, isn't Stossel the reporter who once sued a professional wrestler after the wrestler slapped him him in a moronic post-match interview? Stossel shoved a microphone in the wrestler's face and demanded to know if wrestling is real or fake....The wrestler responded with a slap on the side of Stossel's head. Stossel hired a lawyer, filed a lawsuit and eventually accepted an out-of-court settlement reportedly worth $500,000."

How this slap on the head affected Stossel I will leave to your imagination.

Theresa Arnold, Amoco Corporation: I watched [the special] wondering how he got parts of it by the network's lawyers. The lady in San Francisco will sue them. She has already sued the Wall Street Journal for its negative piece about her, and the WSJ at least reported that she actually won a couple of her cases. (If the network has any brains, her anticipated lawsuit was part of the special's budget -- although if they had any legal advice, not in an easily discoverable form.)

The interesting thing is that Stossel was pretty up front about his bias (and he did point out that the network used the same discovery tactics as the plaintiff in the lawsuit filed against him). There had to be a lot of people who envied him the power he had as a reporter to vent his spleen because he felt jerked around by the legal system.

Jim Schratz, Attorney: As somebody who handled the San Francisco case for Fireman's Fund and who has been sued by Patricia McColm [the perennial plaintiff]; as an attorney for 20 years; as a client and now a legal auditor, I read most of these comments with dismay.

Hatchet job? Maybe, but the fact is that there are millions of people -- clients, ex-clients and future clients -- who sympathize with Stossel, and millions who hate, yes hate, lawyers. You can attack Stossel, show he got a ton of money from his case, etc., but the facts are people don't like us.

Eventually that will result in major changes to the legal system, or more shootings of lawyers, as happened in San Francisco [at the now-defunct Pettit & Martin] a few years ago. (I was in the building where it happened and knew a number of people at the law firm.) Until we all recognize the deep-seated distrust and animosity many people feel toward us and attempt to rectify the problem, things will just get worse. Attacking Stossel isn't going to solve "our" problem.

Parry Aftab: Are we attacking him? I don't think so. What we are trying to do, generally, is present a more evenhanded analysis. Contingency fees are bad unless you realize that without them, people would still be dying in Ford Pintos. In America, the loser doesn't pay the legal fees of the winner, so people abuse the system -- except that if the loser did have to pay, only the big guys would have their day in court.

But many of us devote time to pro bono causes, mentoring young lawyers, providing guidance to others online. We donate our time and money to good causes and are generally good members of society. In order for the public to understand the benefits of contingency fee cases, class actions, etc., someone needs to present a less biased report.

Karen Dillon: In this month's cover story in The American Lawyer, I tracked down the original 25 Skadden Fellows (Skadden Arps, a large New York law firm, donated $10 million in 1989 to fund public interest fellowships). I was staggered and moved by the good work most of them continue to do.

Glenn Moss, Court TV: I believe that too often the "good news" about lawyers is published and transmitted to the profession by the profession. Regardless of the quality and veracity of Am Law stories about pro bono work, public interest funding, etc., it may have a far greater impact on the public's perception if such stories could somehow find a more general interest/mass circulation medium.

I can imagine a show covering the history of significant cases that resulted in major economic and social changes, now generally seen as improvements. For example, the cases and laws growing out of early industriaization (sweat shops, child labor, unsafe workspaces), continuing through thalidomyde, asbestos, tobacco -- this would make good television by focusing on a few of the people who suffered and how too often it took the grim reality of a tort case to bring to light an intolerable situation.

And, lest we forget, there are the individual lawyers who took on the realities of censorship and bigotry -- these are compelling cases of lawyers helping to create macro change on the micro level. There are great stories here of loss, defeat, perseverance and the sometimes sweet and late victory.

Steven Brill, American Lawyer Media: I think that Court TV does a terrific job in showing the good that lawyers do -- by showing people real justice as opposed to fictional justice or John Stossel's notion of justice. We have now done about 400 trials. I would say that in 395 of them people saw the system working because the lawyers and judge did a good job. These trials include a stupid personal injury case (guy gets drunk, jumps into a three-foot-deep above-ground swimming pool, get paralyzed, sues the pool company -- AND LOSES) that showed that the system isn't the bonanza for unworthy plaintiffs that many think it is. And we have labored to make that point. Just as we have labored to make the point that the defendants' protections in criminal cases aren't some stupid technicalities.

That is why a study done by the independent Times Mirror Foundation found that a large majority of people who watch Court TV come away with increased confidence in the legal system.