Thursday, December 19, 2013

Liable but broke: Why some legal battles aren’t worth fighting

While it may sound cynical, lawsuits are really about money. Injured people initiate lawsuits because they need money to cover their medical bills, help them cope with disabilities and time off work, and replace lost or damaged property. In fact, a basic principle of the tort legal system is that almost all injuries can be converted into a dollar amount. Of course, attorneys also need to be paid in order to keep their practices open and continue serving clients, and finally the legal system itself costs money to operate. As a result, after all the legal questions have been addressed, all the evidence gathered, lawsuits come down to a collection effort. The amount due, whether from an insurance settlement or a court ordered judgment, must be paid or the entire effort will have been for nothing. Unfortunately, some defendants simply don’t have any money, or at least not enough to pay for the damages they caused. Even where money is available on paper, actually getting those dollars to the proper person can sometimes be challenging.

Because of these issues, one of the factors that significantly impacts the viability of a lawsuit is the predicted ability to collect on any positive outcome; in short, the question of whether or not the plaintiff can actually get paid at the end. There are many reasons why collecting on a judgment might be difficult. Sometimes even the best cases, those with clear liability on the part of the defendant and serious damages to the plaintiff, are just not viable in practice.

Indigent Defendants

The most common of these heartbreaking cases involve situations in which the defendant simply does not have any resources from which to satisfy their legal obligations to the injured plaintiff. It might be that the at-fault driver of the car that caused the pile-up only carried state-mandated minimum levels of car insurance (currently a mere $15,000/$30,000); nowhere near enough to cover a prolonged hospital stay or major surgery for even one person, let alone several passengers. Or perhaps the responsible party is simply low-income and has neither property nor a steady source of revenue from which to pay a judgment. Whatever the circumstance, the collectability of a suit may make even good legal situations into poor practical cases.


The threat of paying out on a judgment or settlement may drive a defendant to seek refuge in the bankruptcy system. In bankruptcy, many legal judgments can be discharged for mere pennies on the dollar, or sometimes for nothing at all. The bankruptcy process essentially gathers all of a defendant’s assets into a single pool and uses that pool to pay as much of the defendant’s debts as possible. In other words, if a defendant has 100,000 worth of debt and only 50,000 worth of assets (property, savings, etc.), the bankruptcy courts will use their authority to distribute that 50,000 evenly among the creditors; each of whom will collect approximately 50 cents for every dollar they were originally owed. At the end of this process, each of the debts that were addressed by the court will be considered settled in full, thereby wiping out any further capacity to collect on those debts. In many bankruptcies, the debtor has so few assets that almost nothing is paid to creditors. Where those creditors include an injured plaintiff, even the best of legal judgments may not earn the plaintiff any real payment.

Medical Providers and other outstretched hands...

In many personal injury cases, a plaintiff is left with substantial medical bills. Even where some portion of these bills is covered by health insurance, the policies frequently include provisions which give the insurer some right to at least a part of any eventual legal settlement. Known as subrogation rights, these provisions may mean that a successful plaintiff obtains a settlement or judgment, collects the money, and then has to turn around and give a large portion of those dollars to an insurance company to repay them for the cost of earlier care. Where there is no insurance, medical providers may seek payment from a legal settlement directly. In some situations, cautious defendants will even seek to pay such providers directly, in others insures may get a court order to directly pursue some of the settlement or judgment. Effective attorneys understand when and how these kinds of subrogation and payment demands will develop and can advise a prospective client about the repercussions of the case right at the outset.

Costs of trial

Even where eventual payment seems likely given the resources of the defendant in question, the costs of running a trial to the point of collection can be prohibitive. Sometimes to win a trial money must be spent; occasionally large amounts of money. To make matters worse, some cases take many years to work their way through the courts. In these situations, someone has to cover the ongoing costs of managing the case. These costs don’t just include lawyer’s fees but can also stem from the charges of experts, document fees, or the costs of obtaining evidence. While many personal injury attorneys work on a retainer system under which they get paid only at the end of a successful case, the risks involved might be simply too high to merit a substantial up-front investment.

What it all means

In the end, what most plaintiffs really care about is being made whole for their injuries; about collecting money to cover their expenses, pain, and other losses. Unfortunately, even where there is a clear legal case, even experienced attorneys may sometimes be unable to take it because of the low probability of obtaining payment or because of the high costs of trial. While most personal injury attorneys really do understand and appreciate the pain and suffering of their clients, some cases just do not have a sufficient likelihood of a positive collection effort to be worth taking. No matter how much an attorney wants to take a case, no matter how sympathetic a client’s plight, if there is no way to get paid at the end, no one comes out better off from a fruitless legal battle.

Monday, December 2, 2013

Innocence Under Threat

The Innocence Project Logo
300 exonerated, Too many wrongfully convicted.

To most people, largely those who have never been under its supervision, the Criminal Justice System in America is about catching the guilty and punishing them; removing them from society. From this perspective, justice equals a conviction, and perhaps a sufficiently severe sentence. Constitutional guarantees like the right to an attorney, the protection against forced self-incrimination, or provisions for the humane treatment of suspects are roadblocks to justice; merely tolerated in a civilized era. To society at large, the justice system is effective. Suspects are almost as good as convicts, confessions obvious signs of guilt, and eyewitness identifications nearly the word of god. “Getting off on a technicality,” is the buzz phrase the lay observer caustically tosses at anyone the system exonerates despite even a modicum of evidence.

To individuals like Sylvester Smith, convicted for the molestation of two little girls he never touched, the justice system has a darker side. Smith served 20 years for a crime he was later conclusively proven not to have committed while the real offender ran free, eventually committing a murder which would have been prevented had the system not misidentified Smith as the primary suspect in the molestation case. Few people, however, stop to fully consider this other side of the system, to understand the reason behind the protections afforded to criminal suspects by the law, or to appreciate their necessity.

A system in jeopardy

Unfortunately, statistics paint a rather grim picture of the efficacy of our criminal justice system and stories like Smith’s are far too common. While a large portion of offenders are indeed caught and convicted, grave injustices abound. Despite the hard work of a great many astute detectives, conscientious prosecutors, diligent defense attorneys and dedicated judges a shockingly high number of completely innocent individuals are caught and ground to pieces in the wheels of justice; sometimes in clear violation of state and federal civil liberties. While exact numbers of wrongful convictions are hard to gauge, a recently released report shows that more than 2000 felony convictions have been overturned as unfounded since 1989, over half due directly to police scandal. The average wrongful prison sentence: 13 years.

Faced with this harsh reality, some activists are pushing for much needed reforms. At the front of the pack is the Innocence Project, a non-profit organization dedicated to utilizing DNA evidence to overturn the convictions of innocent suspects. Among the several issues identified by the innocence project as most commonly leading to a wrongful conviction, erroneous eyewitness identification, false confessions, and faulty scientific evidence are the worst offenders.

Mistaken Eyewitnesses
According to Innocence Project statistics, 73% of defendants exonerated by post-conviction DNA testing were put behind bars due in part to mistaken eyewitness identification. Despite the fact that research consistently demonstrates the inherent unreliability of such identification (in fact, eyewitness identification has been shown to be one of the least reliable pieces of evidence in a criminal trial), most jurisdictions continue to utilize the tool and juries treat such identifications as nearly infallible in practice. There are, however, ways in which eyewitness testimony can be used without sacrificing justice for the sake of efficiency; and reforming the use, and collection, of eyewitness testimony is critical to improving the quality of our judicial apparatus. 

False Confessions
While confessions are often considered the gold-standard of criminal evidence and few people who have not faced a harsh police investigation can imagine ever offering a false confession, a surprisingly high number of wrongful convictions nonetheless involve this particularly troublesome item of evidence. The subject of two different Constitutional provisions --the fifth and sixth amendments-- and a number of widely recognized Supreme Court decisions, Miranda warnings are perhaps the best known, confessions can be problematic at best, yet once submitted to a jury they are almost always damning.

Bad Science
Scientific evidence can often go awry; responsible for about 50% of wrongful convictions which were later overturned by new DNA evidence. While DNA analysis or fingerprint matching, for example, have undergone rigorous scientific exploration and demonstration, individual investigative and lab practices vary dramatically throughout the country, sometimes even throughout a single state. Unless carefully managed, such scientific evidence is less than worthless and, in some cases, actually leads to disastrous results. Contaminated samples, improper transportation and handling, and lab mistakes can all lead to false positive connections which in turn can lead to wrongful convictions.


Serious problems face our nation’s criminal justice institution and the work done by the Innocence Project and other similar organizations is vital, both to the innocent convicts exonerated as a direct result of these groups’ efforts and to the population as a whole made safer by the systemic reforms for which these organizations advocate. To learn more about these serious problems and the ways in which you can help to improve our system of justice, please visit the Innocence Project directly. To see whether you or a loved one has a valid post-conviction case, contact our office.