Cowboy Lawyers - the American Civil Legal System

I was fortunate enough to participate in a trial demonstration, a mock trial with a mock jury, in Berlin, Germany this September.  It was a fascinating experience, having never been to Germany and not knowing much about the German, or European, legal systems, I was very curious.  I knew that there was no right to a jury trial in Germany, a system in which I fervent believe.  Yet, I was surprised by the competent and fair way Europeans, specifically Germans, dispense civil justice.

In Germany, law students undergo go a couple of years of apprenticeship, an internship if you will, before being allowed to practice law. I wish we had a similar system here.  When I went to law school, brand new lawyers were ill-prepared to practice law.  The Paper Chase was a popular television show before I started law school and the actor, whose name escapes me, (who touted Meryl Lynch - "They make money the old-fashioned way, they earn it.") told the viewers and Harvard law students on the show, that he would teach them to "think like a lawyer."  At the time I watched that program, I thought thinking like a lawyer must be a great thing to do.  I suppose what the Paper Chase professor meant, was to think logically.  However, in real life, new lawyers might approach legal issues more logically, yet without a clue of how to file a lawsuit and draft a will.  I understand that American law schools do teach more practical application of the law than in the olden days, but it sure would have been, and I suspect still would be, nice formally apprentice with an experienced attorney before being thrown to the wolves.  I, as many other young lawyers did, found mentors and informally apprenticed.  For those who were not so lucky, I do not know how they learned and adjusted.

In Germany, the law student has one of two paths to follow, as a lawyer or as a judge.  The judicial path is for the better students.  Judges have an enormous amount of power in Germany, and are fiercely independent from the government.  Since the German lawyers turned judges know the law and are deemed to be intelligent, they, in essence, investigate the case and are deemed sufficiently sophisticated to have the common good at heart.  A German lawyer confided in me that if a German was hurt on the job, and lost his or her leg, the recovery would be around $100,000 and the German lawyer and I agreed how woefully inadequate that award would be.  Germany does not have an adversarial system such as we do.  Most times, if a German litigant cannot afford a lawyer, the lawyer petitions the government for payment.  While I was taken aback at the unbridled power of German judges, it occurred to me that their system works because of all the societal benefits we do not share. In Germany, there is no at-will employment.  Every employee has a contract and rights towards his or her employment.  If a German is injured, the health care is provided by the government, as are social programs.  Germany is so much more of a socialist country.  One young German lawyer told me that if I was politically left-leaning in America, I would probably be considered a conservative in German culture.

We went through our mock trial demonstration, and, at the end of the day, a jury made up of young German lawyers deliberated on camera and awarded a fair verdict to the critically injured plaintiff in this fake products liability case we litigated.  People are not so different in other parts of the world. The mock jurors deliberated and came to agreement in ways that American jurors do in this country.

What is really different between the German civil justice system and the American civil justice system is embodied by the lawyers.  We have much lower taxes percentage-wise than Germans.  We do not have the government pay lawyers who represent those without the means to pay for legal representation unless it is a criminal cases.  In civil cases, we have what I like to call a COWBOY LAWYER SYSTEM.  Corporations can afford to hire law firms to represent them.  I have heard many a lawyer tell me that he or she (mainly he, though) doesn't want to talk about settling a case until the firm had had an opportunity to "bilk" (my word, not theirs) the file.  Many, if not most, defense lawyers do not say things like this.  However, it is a fact that under normal billing methods, the longer a firm works on a case, the more the firm earns.

As you know if you have been reading this blog, I am a plaintiffs' lawyer.  However, plaintiffs' lawyers, myself included, do not fare better.  Plaintiffs' lawyer are paid contingent fees, a percentage of the recovery in a case.  The system was set up because most people cannot afford to pay for lawyers and if the people are seeking redress for damage, those with no money can still seek justice. As a practical matter, this system is somewhat, although, in my opinion, not fatally flawed.  When I take on a case, I know that if we lose, I will not get paid.  I also know that, if we win, I may win big. Ah, there is the rub.  People do not become plaintiffs' lawyers simply to help the poor.  If that were the case, we would become government or Legal Aid lawyers.  We plaintiffs' lawyers may have big hearts and truly care for justice, but we work on contingent fee cases because we are cowboys.  By cowboys, I mean, we take risks.  We gamble.  Sometimes I liken what I do to being a professional gambler.  Never knowing if the next big case is beyond the horizon, we gamble with our money, our time, and our affection.  We take no physical risks, but boy, do we take financial risks.  And, just like gamblers, we relish the peaks and withstand the valleys.  When we get a verdict from a jury many times more than what was offered by the defendant, we preen.  We are Peacock Cowboy Lawyers. I include myself wholeheartedly in this description.  Being a plaintiffs' lawyer is addictive.

In Germany, I contemplated working in a legal system with significantly less risk to the participants and lawyers and significantly more security.  I don't think I would like it.  Where is the adrenaline-rush?  You ride your horse on the prairie, hoping to find a slight upgrade. In America, we gallop on our steeds off the sides of cliffs, praying for a soft landing. I do not know if the German system makes more sense, and I doubt after practicing law for 31 years in America, practicing law in Germany would be satisfying for me.  Perhaps I should consider starting a 12-step program called Plaintiffs' Lawyers Anonymous.  Even though we lawyers hate to admit it, perhaps our Cowboy Peacock preening is part of the reason that many Americans cannot stand lawyers.