Plaintiffs' Lawyers, Specialization, and Medical Malpractice
Daniels, Stephen, Martin, Joanne, Vanderbilt Law Review
I. INTRODUCTION: RHETORIC AND REALITY
Our interest is in medical malpractice as an area of specialized practice for plaintiffs' lawyers, and we want to explore this area because plaintiffs' lawyers are key actors in the medical malpractice system. An understanding of their role is necessary in identifying what problems may exist in this system and in evaluating both proposed and enacted solutions. Indeed, some reforms appear to be specifically aimed at plaintiffs' lawyers who handle medical malpractice cases-especially the repeat players whose experience and expertise may give them, and hence their clients, a strategic advantage.
Like most of the political rhetoric surrounding medical malpractice, the characterization of lawyers representing plaintiffs has always been vivid, symbolically charged, and divorced from reality. The rhetoric's purpose, of course, is not to present an accurate picture of reality. The idea is to gain political advantage by portraying such lawyers in the most negative light and to blame them for a host of ills curable only by medical malpractice reform. Writing in 1991, Randall Bovbjerg and his colleagues summarized the medical community's views, saying that physicians believe there is systematic jury bias against them.1 Physicians also believe that "[b]ecause malpractice plaintiffs receive extravagant amounts in malpractice cases, their contingent-fee lawyers also earn too much-far more than needed to assure competent representation. Hence, the lawyers are willing to take even more and weaker cases to trial in the hopes of hitting the 'jackpot.'"2 Herein, supposedly, lies the gist of the problem.
The "greedy, opportunistic lawyer" characterization leaves little room for a perspective that recognizes sophisticated specialization by plaintiffs' lawyers. Such an alternative perspective would require us to view malpractice differently, because it calls into question both the "jackpot lawyer" as a key cause of the "malpractice crisis" and what this theory presumes about the malpractice system. Specialization in malpractice cannot be built on a "jackpot" system of weak cases and jury sympathy, because malpractice cases are complex, expensive, and risky. Instead, a successful practice is built on the development of expertise and the strategic advantages that come from being a repeat player, rather than an infrequent "jackpot" player. Success comes with the development of advantages sufficient to offset the strategic advantages of the insurance companies and their lawyers, who are the epitome of repeat players. In fact, the existence of specialists itself calls into question the veracity of the "jackpot" characterization of the malpractice system.
While not necessarily adopting the political rhetoric's characterization of plaintiffs' lawyers, the academic literature also suggests that the kind of specialization we have in mind will not exist on the plaintiffs' side. For instance, Bovbjerg and his co-authors argue that because malpractice cases are complex, expensive to prepare, and very risky, plaintiffs' lawyers-as rational actors-will be deterred from specializing in the area. In order to maximize their return in a risky and expensive environment, plaintiffs' lawyers will invest instead in different kinds of cases based on likely jury sympathy, only some of which will involve malpractice.3 Herbert Kritzer makes a similar argument in his book regarding lawyers in Wisconsin who rely on the contingency fee.4 He leaves out consideration of jury sympathy, but he also argues that lawyers will act rationally and build their practices around a diverse portfolio of cases rather than specialize in an area with considerable risk and uncertainty and in which their compensation is based on a percentage of the award.5 Indeed, it is unclear why any rational actor, from this perspective, would ever handle a malpractice case.
In his classic 1974 article on repeat players and the reasons that the "haves" come out ahead, Marc Galanter is also not optimistic about the development of specialization on the plaintiffs' side, although for different reasons. …