There is a great deal of focus placed on the "over-supply of lawyers" part of the legal employment equation. However, there is not much discussion about the "demand for lawyers" side of the equation. Even then, most of that discussion revolves around corporations cutting back on Big Law services as opposed to the collapse in demand for individual legal services or the effect so-called "tort reform" has had on the practice of law.
On the recent NPR Diane Rehm Show featuring Steven Harper, there were a number of really great comments. This one caught my eye, quite apart from the user name. Here is the comment in question:
On the recent NPR Diane Rehm Show featuring Steven Harper, there were a number of really great comments. This one caught my eye, quite apart from the user name. Here is the comment in question:
Blueneck BillyBob wrote:
TORT reform has had many negative consequences. The victims never see the judgements, to which they are due. Attorneys aren`t receiving their just due either. Taxpayers are on the hook to pay the bills for the injured.
Now in Ohio they plan to make attorney fees taxable, as well as the judgements...This will deny justice to those who need it most.. Ordinary human being type citizens have had few if any victories on our high courts, these days. The Conservatives always find for the offender, and never for victims, increasing the burden onto the government.
Prospective law students (and for that matter the public at large prior to something happening to them) do not fully understand the impact "tort reform" (judicial or otherwise) has had on the legal profession.
Let's talk about Michigan, the home of Cooley Law School, for a moment. The Michigan Supreme Court was "taken over" by a majority of conservative "texturalist" justices (the so-called "Engler 4") a little over a decade ago. As a result, there was a sea change in Michigan tort law which took place under the guise of Conservative texturalism. Entire areas of practice literally disappeared overnight in Michigan as opinion after opinion was released. This was not simple fine tuning based on a specific set of facts before the court. Statutes designed to specifically compensate injury victims were retroactively reinterpreted in such a manner that the entire practice area disappeared; the common law was turned on its head to eliminate other long-standing practice areas. See, for example, Robinson v. Detroit, 462 Mich 439; 613 NW2d 307 (2000)(police chase liability); Nawrocki v Macomb County Road Comm., 463 Mich 143, 156; 615 NW2d 702 (2000)(road liability); Lugo v. Ameritech Corp, Inc., 464 Mich 512, 517; 629 NW2d 384 (2001)(premises liability); Kreiner v Fischer, 471 Mich 109 (2004)(no-fault liability); etc. See also medical malpractice reform and complete immunity for drug manufacturers.
So-called "tort reform" was the political culmination of years of "trial lawyer" bashing in political stump speeches and on Sunday morning talk-show appearances. It resulted in the appointment of judges friendly to corporations and insurance companies. For example, Michigan Chief Justice Robert P. Young Jr. served as general counsel of AAA before being appointed to the bench. See also a recent New York Times article "Pro-Business Decisions are Defining This Supreme Court," by Adam Liptak (New York Times).
As a matter of fact, the situation in Michigan is so ugly right now that the retired Chief Justice of the Michigan Supreme Court, Elizabeth A. Weaver (a moderate Republican incidentally but not member of the Engler 4), has a nearly 750-page tell-all book coming out called Judicial Deceit. According to newspaper reports on the book, she is alleging misconduct on the part of the Engler 4 justices. She claims there were instances where the Engler 4 had their opinions written before oral argument and others where they were trying to trade votes via written memos when the court became more evenly divided. She was censured for secretly recording internal discussions of the court and releasing a transcript during election season. See "Michigan Supreme Court censures ex-Justice Elizabeth Weaver for secret recordings," (Associated Press published in MLive, November 22, 2010.)
The reason for the vitriol related to the Michigan Supreme Court is because millions and millions of dollars are at stake. The financial services and insurance industry are highly motivated to keep justices on the court who have a history of interpreting laws in such a manner that otherwise compensable causes of action do not exist. After tort reform, not only did hundreds of millions of dollars not move from the insurance and financial services industry to compensate injury victims, but that money also was removed from the legal services industry. The legal services industry was the big loser in "tort reform." Not only were hundreds of Michigan plaintiffs' lawyers put out of business, but their counter-part defense lawyers were also put out of business. In Michigan, both sides of the tort bar went from full file cabinets to empty file cabinets virtually overnight. Those lawyers then started scrambling to make a living in other areas thereby diluting other attorneys' practices. Pretty soon everyone was scrambling to make a living practicing law. Even if an attorney did not practice in the area of tort law, his or her practice was impacted by tort reform. The bottom line is that it is just not injury victims who suffered as a result of tort reform; the advocates who trained to work in this area also suffered and that impact then spread throughout the entire legal community.
The Michigan bar, and to a lesser extent other States, has seen a perfect storm. Tort reform eliminated many areas of practice. This, combined with the collapse of the auto industry, the loss of middle class wages and the exodus of young families from the State in search of jobs, created a huge drop off in demand for legal services. At the same time, there was a surge in the number of lawyers produced in the State with the establishment and expansion of Cooley Law School. Cooley has grown from its first campus in Lansing, Michigan, to establish satellite campuses in Ann Arbor, Auburn Hills and Grand Rapids, Michigan. Now it is apparently expanding once again with the proposed agreement with Western Michigan University. This is not an attack on the comparative overall quality of legal education at Cooley Law School; the criticism is that the Michigan legal market cannot bear the over supply of lawyers being produced. One recent article showed there are almost 7,000 law students in Michigan with half that number coming from Cooley Law School alone.
Let's talk about Michigan, the home of Cooley Law School, for a moment. The Michigan Supreme Court was "taken over" by a majority of conservative "texturalist" justices (the so-called "Engler 4") a little over a decade ago. As a result, there was a sea change in Michigan tort law which took place under the guise of Conservative texturalism. Entire areas of practice literally disappeared overnight in Michigan as opinion after opinion was released. This was not simple fine tuning based on a specific set of facts before the court. Statutes designed to specifically compensate injury victims were retroactively reinterpreted in such a manner that the entire practice area disappeared; the common law was turned on its head to eliminate other long-standing practice areas. See, for example, Robinson v. Detroit, 462 Mich 439; 613 NW2d 307 (2000)(police chase liability); Nawrocki v Macomb County Road Comm., 463 Mich 143, 156; 615 NW2d 702 (2000)(road liability); Lugo v. Ameritech Corp, Inc., 464 Mich 512, 517; 629 NW2d 384 (2001)(premises liability); Kreiner v Fischer, 471 Mich 109 (2004)(no-fault liability); etc. See also medical malpractice reform and complete immunity for drug manufacturers.
So-called "tort reform" was the political culmination of years of "trial lawyer" bashing in political stump speeches and on Sunday morning talk-show appearances. It resulted in the appointment of judges friendly to corporations and insurance companies. For example, Michigan Chief Justice Robert P. Young Jr. served as general counsel of AAA before being appointed to the bench. See also a recent New York Times article "Pro-Business Decisions are Defining This Supreme Court," by Adam Liptak (New York Times).
The reason for the vitriol related to the Michigan Supreme Court is because millions and millions of dollars are at stake. The financial services and insurance industry are highly motivated to keep justices on the court who have a history of interpreting laws in such a manner that otherwise compensable causes of action do not exist. After tort reform, not only did hundreds of millions of dollars not move from the insurance and financial services industry to compensate injury victims, but that money also was removed from the legal services industry. The legal services industry was the big loser in "tort reform." Not only were hundreds of Michigan plaintiffs' lawyers put out of business, but their counter-part defense lawyers were also put out of business. In Michigan, both sides of the tort bar went from full file cabinets to empty file cabinets virtually overnight. Those lawyers then started scrambling to make a living in other areas thereby diluting other attorneys' practices. Pretty soon everyone was scrambling to make a living practicing law. Even if an attorney did not practice in the area of tort law, his or her practice was impacted by tort reform. The bottom line is that it is just not injury victims who suffered as a result of tort reform; the advocates who trained to work in this area also suffered and that impact then spread throughout the entire legal community.
The Michigan bar, and to a lesser extent other States, has seen a perfect storm. Tort reform eliminated many areas of practice. This, combined with the collapse of the auto industry, the loss of middle class wages and the exodus of young families from the State in search of jobs, created a huge drop off in demand for legal services. At the same time, there was a surge in the number of lawyers produced in the State with the establishment and expansion of Cooley Law School. Cooley has grown from its first campus in Lansing, Michigan, to establish satellite campuses in Ann Arbor, Auburn Hills and Grand Rapids, Michigan. Now it is apparently expanding once again with the proposed agreement with Western Michigan University. This is not an attack on the comparative overall quality of legal education at Cooley Law School; the criticism is that the Michigan legal market cannot bear the over supply of lawyers being produced. One recent article showed there are almost 7,000 law students in Michigan with half that number coming from Cooley Law School alone.
The point here is not to advocate one way or another on the political line-drawing associated with tort law. The reality is that the lines have shifted significantly over the past few years. The elimination of tort claims has also significantly reduced legal service industry jobs. This point is being lost in the overall debate.
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