Having your tort and eating it too

If you were a personal injury lawyer, wouldn’t you, for the most part, take cases that had merit? Wouldn’t you prefer to use your time to litigate the ones that juries would find sympathetic? Isn’t it interesting that Edwards, the successful litigator-turned-candidate is now described by some as an over-zealous trial attorney, having pursued mostly cases that held the promise of high jury awards (based presumably on highly emotional, meaning tragic, fact patterns). I don’t typically write about other blogs here, but my colleague Ann has a very nice take (based on NYT stories of this morning) on both sides of the debate.

Since I have been teaching tort law, I have found myself increasingly bewildered as I listen to arguments levied against trial attorneys who prevail in the high-stakes tort cases. After all, the last decades have yielded new standards of strict liability for products causing injuries, they have created an unusually cautious medical establishment (possibly more Caesareans but fewer births with brain injury), they have pushed oil companies to pay for environmental damages (note this week’s punitive damage award in the Exxon Valdez oil spill case – not that Exxon will let it go without an appeal), and pharmaceutical companies to take responsibility for marketing drugs they had reason to believe were unsafe (classic instance: DES litigation). Tort damages have typically been limited to recovery of medical bills and economic losses, with a few high-profile awards for emotional distress. Our litigious society is, after all, an uninsured society. Edwards is described as the champion of obstetrics cases that had nothing short of nightmare birthing scenarios... A classic story of a guy with talent and passion, making a buck from successful litigation, finding a tort case where he could pile on the icing for his client (and therefore for himself)--this is a bad thing?

What if instead, Edwards had had these reactions:
“I’m in it for the losers: I only take cases that have little merit or likelihood of success.”
“Medical uncertainty? Oh, okay, I will not use expert evidence that I believe would be favorable to my client’s position, because 10 years hence, it may be proven inadequate.”
“I don’t want to manipulate juries: I will keep my skills at crafting persuasive arguments under control because I don’t want to get the jury thinking that my client should win big time.”

I haven’t taught Professional Responsibility for several years, but let me just say that I think I smell grounds here for attorney censure for unethical behavior.