March 1, 2011
Tuesdays with Tort Masters: Lester Brickman
Lester Brickman is a Professor of Law and former Acting Dean at the Benjamin N. Cardozo School of Law, where he teaches contracts and legal ethics. He has written extensively on legal ethics and his writings have been widely cited in treatises, casebooks, scholarly journals and judicial opinions (including the United States Supreme Court, United States Circuit Courts of Appeals, state supreme courts and federal and state appellate and trial courts). Among his areas of specialty are contingency fees and their effect on the tort system, mass tort litigation, asbestos litigation, regulation of attorney fees in the tobacco litigations, fee arbitration, and class actions. Professor Brickman recently published a book on contingency fees: Lawyer Barons: What Their Contingency Fees Really Cost America (Cambridge Univ. Press).
I recently was able to ask Professor Brickman some questions about his career:
Q: Why did you apply to law school? Where did you go to law school, and why did you select that school?
It was expected that I would choose law or medicine as a career. Since I fainted at the sight of my own blood being drawn, my choice was clear. But first, as an act of rebellion, for undergraduate work, I attended Carnegie Tech, now Carnegie Mellon, seeking a career in science. Mediocre performance during four semesters of calculus and one semester of differential equations brought me back into the fold.
My parents lived in Miami Beach, Florida where my father held a political appointment. I choose the University of Florida for law school fully intending to practice law in South Florida and indeed had already received overtures from some lawyers about joining their practice.
Q: How did you become interested in teaching law and Torts in particular?
In my second year of law school, I was thumbing through Florida Statutes Annotated, looking for a note topic for law review when I stumbled onto a statute providing for establishment of a motion picture censorship board. Though I did not know it at the time, that flicking of my thumb launched my teaching career. Over the course of 1½ semesters, I undertook a massive empirical effort into how the statute came to be enacted and how it was being enforced. I travelled throughout the state interviewing political leaders who were responsible for enacting the statute in the 1920’s and States’ Attorneys in 30-40 of Florida’s 67 counties responsible for enforcing laws prohibiting obscenity. My “law in action” analysis led me to conclude that the statute had been captured by the motion picture exhibition industry. The industry used the statute to preempt enforcement by county officials of obscenity laws against exhibitors at a time when "I am Curious (Yellow)" and other films of that genre began appearing in “art houses.” At the same time, the statute was entirely dormant -- the censorship board having been abandoned in the 1930’s -- so the net effect was an exemption for the industry from obscenity laws.
The industry regarded my efforts with alarm. Their chief lobbyist, a political powerhouse with high level ties to the University of Florida, called the dean of the law school to request that the law review not publish my note. The dean (and the law review) complied.
My efforts also attracted the attention of a cadre of law professors who held degrees from the Yale Graduate Law Program. They conspired to divert me from a career as a practitioner and instead use my research talents as a law professor. And so I went to Yale to get an LL.M so as to qualify for a teaching position.
At the time I went to Yale, my Con Law teacher at Florida, Karl Krastin, who along with Professors Walter Weyrauch, Walter Probert, and Ernie Jones had taken the lead oar in my career change, left Florida to launch the day division law school program at the University of Toledo. When I came on the market, in 1965 Karl hired me and thus began my teaching career.
I have never taught Torts. If that means I am to be stripped of my “Master of Tort Law” designation, so be it. So how then have I become associated with torts and especially, mass torts? By way of the cow’s barn. Here is the route.
I have been teaching legal ethics since the outset of my teaching career. In the mid-1980s, I developed a specialized interest in ethical issues raised by lawyers’ fees. In several articles, I challenged the use of the nonrefundable retainer -- an upfront, nonrefundable fee charged by matrimonial, criminal and bankruptcy lawyers often amounting to thousands of dollars, which a lawyer would entirely keep even if the next day the client decided not to proceed and the lawyer had not yet done any work. Relying on this scholarship, New York’s highest court outlawed the use of nonrefundable retainers, and several other state supreme courts have followed suit.
By the late 1980s, I had begun to delve into lawyers’ contingency fee practices. In a 1989 article in the UCLA Law Review, I criticized the practice of charging standard one-third contingency fees in cases where there was no meaningful contingency or risk. I likened charging contingency fees in the absence of risk to Hamlet without the Prince of Denmark. Based on this article and others that followed, I developed a public profile as a critic of lawyers’ fee abuses and have been a key participant in the ongoing battles to reform contingency fee practices. My interest in contingency fees led me to focus my research on mass torts and I have published several articles on fraudulent claim generation driven by contingency fees in such mass tort litigations as asbestos, silica, fen-phen (the diet drugs), silicone breast implants, and welding fumes. Here, too, I have acquired a reputation as the leading expositor of mass tort fraud.
I have poured the sum total of this experience into a book that I have just published: Lawyer Barons: What Their Contingency Fees Really Cost America. Though contingency fees have been hotly debated among legal experts over the last several decades, this is the first book that analyzes the costs imposed by contingency fees and challenges the view of torts scholars that tort lawyers’ profits, though great, are socially beneficial. Contrary to a broad consensus in contemporary legal scholarship, I argue that the level of financial incentives available to lawyers to litigate do distort the objectives of our civil justice system and impose other unconscionable social costs.
Q: What do you see as your major accomplishments as a scholar?
In addition to Lawyer Barons and my scholarship on contingency fees, I would list my success in getting the New York Court of Appeals to ban nonrefundable retainers; getting Congress to pass a law requiring that insurance companies and others sending checks to lawyers in settlement of tort claims or to satisfy judgments have to issue 1099s. (Until there, tort lawyers were the only occupational group not covered by the 1099 issuance requirement); and my co-authored “early offer” proposal which has garnered attention in most Professional Responsibility casebooks and which seeks to resuscitate long dormant ethical rules by limiting the application of tort lawyers’ contingency fees to the value they add to tort claims.
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