The Point

Litigants can no longer expect to receive FAIR and SWIFT justice. The system has, at best, broken down. Lawyers defending cases are paid on an hourly basis, therefore their interest is in having the case take the most hours. Defendants generally don’t care when they pay legitimate claims. Getting things done has therefore become a significant problem. Courts of appeal are routinely deciding cases that are more than four years old. Shockingly, this seems to have become accepted as the norm by lawyers and judges. The problem is that claimants often need their compensation sooner rather than later.
The solution is to publicize the wrongs that are committed so that those who commit those wrongs can be embarrassed into being part of the solution, not the entire problem.
Take the case of Debbie Shank.
Debbie Shank, while working at Wal-Mart, bought a health and accident insurance polity through the company. She was subsequently injured when the car she was driving was broadsided by a truck. . Her health and accident policy covered her medical expenses, which were over $400,000. She sued the truck driver and recovered about one million dollars. She suffered devastating injuries, including brain damage that left her with short term memory loss. Shortly after the accident, her son was killed in Iraq and she can’t remember being told of his death, so that every time she is told that he died, it becomes a new experience for her. Furthermore, after legal fees and costs were deducted, she was only left with enough to pay back the health and accident insurance carrier. Her health and accident policy sued to recover what it had paid. Subrogation clauses giving insurance companies the right to recover their payments are standard in the insurance industry. Debbie’s situation, however, cried out for compassion. Wal-Mart’s lawyers, however, are not paid for compassion. They were paid to recover the money it had paid out. And they won. Of course they won, the subrogation clause was part of the insurance contract and there really was no defense.
CNN picked up the story and after a few months, Wal-Mart abandoned its claim, deciding that the adverse publicity was more expensive than the subrogation claim. Now, a reasonable examination of the case should cry out for more details, for example, was the case settled too cheaply, were the attorney’s fees too high, did the Court approve the settlement and so on. But the salient fact here is that the public knew that Debbie Shank really deserved a break and that Wal-Mart gave her one. It only took the publicity from CNN to make that happen.
We are trying to do the same thing, publicizing outrages so that the public can make up its mind and, by extension, embarrassing litigants into resolving cases rather than obstructing their resolution. I welcome requests to examine other litigation. Send requests and information to johncap2008atgmail.com.