Outer Limits of the Law

The Future of Law, the Law of the Future

“What’s the use you learning to do right when it’s troublesome to do right and ain’t no trouble to do wrong, and the wages is just the same?”


Quote from Huckleberry Finn, included in a dissent by Texas Supreme Court Justice Rose Spector, in which the Texas Supreme Court determined that despite a law firm partner’s reporting a senior partner for over billing a client, the firm had no duty to protect her position and that she could be fired, rejecting the claim that she was a whistle blower. 

Bohatch v. Butler & Binion, 977 S.W.2d 543, 558 *Tex. 1998).

Tale of two claims

The following hypothetical case is based on an experience I had as a law clerk for a firm I once worked at.

A woman, we will call her Nancy, walks into a large grocery store. It is just after midnight. Nancy is sober but walks with some difficulty because of a left foot injury. The grocery store has vendors stocking the shelves, and an employee is mopping the floor. A caution “wet floor” cone is put out but subsequently removed by a vendor. The store nor the vendor return the safety cone. Nancy slips and falls, bruising her right foot.

This is all caught on tape, which was not hard to get from the store. Nancy decides to sue. This is where it becomes a tale of two claims.

The first thing Nancy could do is what many people do in this situation, which is to find a personal injury attorney. Assuming the attorney takes the case, it will most likely be on a contingency fee basis - approximately 30% of whatever is recovered up to a verdict at trial. But, there are a lot of things that happen before trial: letters of representation, discovery, trial confirmation hearings, etc. A lot goes into a law suit. Even if Nancy recovers, her recovery is limited by the cost of the litigation and the contingency fee to the lawyer.

If you remember from the story, Nancy bruised her right foot. Not much in the way of damages, meaning not much in the way of recovery. Doctors bills included, the harm caused was minimal.  Still, we presumably have all the elements for the cause of action in negligence (there were more facts in the actual case that proved someone was liable based on a negligence / premises liability claim so just go along with me). Those elements include a duty, a standard of care, breach of the duty, cause in fact and proximate cause, and damages. Without going into a treatise of negligence law, let’s assume she could win on the facts.

So what about that second way of doing things - the small claim. In California, a person can bring a suit in small claims court for under $10,000 into Small Claims Court. There are many advantages to this, namely that the process is much faster than traditional litigation, and because no lawyers are involved, the judgement goes to the plaintiff if she wins. 

In this case, I would argue that Nancy could have handled her own small claims case and recovered far more than if an attorney got involved, went through filing a complaint (incurring filing fees) and extensive discovery (process server fees) as well as mediation and arbitration, just to end up not getting to settlement / trial for another two years. Small claims court in California usually takes, by some estimates, approximately one or two months to be heard, takes less than twenty minutes to present to a judge, and the decision is either announced on the spot from the bench, or within a few days by mail.

The point of all this is that we, like Nancy, have choices beyond working within the bounded, traditional way of doing things. Attorneys should counsel their clients or potential clients according to the client’s interest rather than be blinded by “zealous advocacy” and the desire to believe that as an attorney-at-law we can do a better job on even a simple case. As consumers, we have choices, and should demand to know about them.  I have seen a lot of cases in my short time working with law firms that could have, and should have, been brought in Small Claims Court. It would have likely brought the client a more lucrative judgment while costing the other side far less in legal fees. It would have been better for the plaintiff, the defendant, and the courts.  

All in the Timing

Americans are ready for law to catch up with them.  Lawyers go to school, pass a bar, and then charge a lot of money to take someone’s case and zealously advocate on their client’s behalf.  This often does more harm than good, even to their own client. And faith in justice is at its greatest ebb.

Us nascent lawyers can probably turn things around. At the outer limits of law are a new cadre of lawyers who will not be indoctrinated into “how we have always done things” because no one is hiring them. Instead, we can make up our own rules because we are making up our own fate.

New technology means new delivery methods, in the courtroom and to the client. An educated consumer base means less time explaining, more time coaching and communicating the finer points of a case. This is exciting.

Consumers expect — rightfully — more from their lawyers. We must be more accessible and affordable. The clients are out there. Go to their house. Keep your doors open a couple of evenings a week, or the weekend. Take time off at other, slower times.

And offer more services than just the hourly fee or flat rate (with no thought as to why the rate is flat). At the outer limits, we can do more than offer the same old thing. As new lawyers, we can offer what many Americans never had - access to justice.

(Source: dcbass)