Pop Torts

Lost pants, hot coffee – misfortune is opportunity for some.

So there you are: for the first time since you were in fifth grade and stayed home sick from school, you’re out of work and sacked out on the living room sofa watching daytime TV. “Steve” turns to “Maury” turns to “Springer,” and mixed in with all the commercials for cooking schools, medical technician certificates and associate’s degrees in criminal justice, you notice the pitches from lawyers.

And they’re speaking directly to you: “You’re hurt through no fault of your own. You can’t work and the bills are piling up.”

In the land of opportunity, sometimes it seems that every misfortune has become an opportunity to sue someone. You hear news reports about the woman who won millions of dollars from McDonald’s because they served hot coffee; you hear about the woman who tripped over her own toddler in a furniture store and won damages from the shopkeepers; you hear about the honest-to-goodness judge who sued a dry cleaner for $54 million because they lost his pants. And naturally, you think, why not me? Why not call a lawyer and see if someone owes me?

These cases are all examples of “torts,” either real or alleged. In law a “tort” is any wrongdoing that can cause legal action or damages. And that’s a lucrative business – but not as lucrative as it used to be.

“Personal injury used to be easy money, but now (insurance companies) will negotiate a settlement,” says attorney Richard E. Clark, who practices from offices in Portsmouth. “They used to settle anything under $5,000, but now they put you through a trial to try to minimize the amount they pay, even when they know they owe money.”

Now you may be thinking, “That pretty much says it all.” On the one hand you have got lawyers looking for a payday, and on the other you have insurance companies fighting to pay what they know they owe. Maybe each side deserves its lousy reputation.

“Those TV commercials make personal injury lawyers look shady and sleazy, but I think in the end who’s sleazier is the insurance companies,” Clark says. “Let’s say your car is totaled. The Blue Book value is $6,000, but the insurance company’s market value says it’s $2,500. You need a car to get to work, but they’ll delay and use that time against you. I think it’s inappropriate.”

But don’t get the impression that New Hampshire attorneys believe that every mishap creates a tort or that there’s a lawsuit for every bad break. “Certainly injuries happen, accidents happen, and it’s no one’s fault,” says attorney Anna Goulet Zimmerman of the Bianco Professional Association in Concord. “If I drive off the road and into a tree, unless something broke in the car and caused some catastrophic failure, it’s going to be my fault for doing it.”

Clark agrees: “First thing, you see if someone’s injury was caused by someone else’s negligence or was someone else’s responsibility. If not, you don’t have a case.”

Lawyers then look at the extent of the injuries that a potential claimant suffered. It turns out the woman who sued over hot coffee had some pretty severe burns, but that doesn’t mean everyone does. “That woman had a lot of medical bills,” Zimmerman says. “If I just got burned, I put some ice on it and I only had a couple minutes of discomfort, there’s probably no claim.”

If responsibility exists, both lawyers say, the third test is whether the responsible party can pay. Is there insurance? Are there assets that could be had? If so, proceed – but if not, no one benefits by legal action.

“A judgment that isn’t going to be worth anything won’t help anyone,” notes Zimmerman. “If you get bitten by a homeless person’s dog, it becomes an exercise in futility even if there are damages. It’s not fair, but it happens.”

Candidly, says Clark, the lawyer must also consider whether a tort is worth his or her time. “You see how much time a case will take, whether it will go to court or be negotiated and what the final award might be. Usually the clerk of court or the mediator will have seen a case like this before and they can tell you what they’ll go for.”

Does that sound harsh? Some might seize on the statement as proof of a lawyer’s shady motives, just like the fact that most lawyers take a percentage of the settlement for their services. But perhaps they ought remember that lawyering is a business, too, and attorneys can’t work for nothing if they plan to do work in the field for long, and how better to stop lawyers from bringing frivolous cases than to remove any profit from them?

“People also need to keep in mind that it’s the anomalies that make the papers,” says Zimmerman. “It’s what a jury of their peers saw as the value of the case. I’d like to think I have that much power as a lawyer but it doesn’t work that way, and the other side is not a bunch of pro-se defendants. They usually have good lawyers with an insurance company backing them.”

Nor do most of those big judgments stand. “When those million-dollar cases get reduced or overturned on appeal, or settle for a smaller amount after the judgment because they know there are problems with the case, that never makes the news. We’re in the business of helping people who truly have a need due to someone else’s negligence. It’s not ‘auto lotto’ and people shouldn’t form their belief or expectations based on those anomalies.”

Most serious people don’t carry such misconceptions, and that’s good as well as bad. The bad part happens when failing to contact a lawyer winds up diminishing a legitimate claim. “It’s like when you’re arrested,” says Clark.

“When you talk to an insurance company, it’s inevitable that you’ll say something that will hurt your case, and they won’t let that go. You’ll eventually hire someone anyway, so you might as well talk to a lawyer before you try to negotiate.”

While not every lawyer will take every case – for reasons of affordability, availability or area of specialty, among others – Clark says there is a lawyer for just about every case. While small practices may not be able to service low-value, high-hour cases due to the need to pay their office rent, multi-lawyer firms might. Or, in the current economy, someone else might just be that hungry for work.

Zimmerman adds that your own doubts about a case should not stop you from calling a lawyer just to see. “We get calls all the time from someone who says, ‘This might be a really stupid question, but …’ Even if there’s no case for a lawsuit, a lawyer may be able to help you ask the right questions and get help from insurance or some other source.” NH