Greedy Trial Lawyer
Legal Bait And Switch Award To Former Justice Of Florida Supreme Court?
Category: Gaming The System
Former Florida Supreme Court Justice Stephen Grimes performed an embarrassing but enthusiastic two-step before the present justices of the Florida Supreme Court last week. He may be entitled to the Legal Bait and Switch Award for 2005. He argued that Amendment 3 to the Florida Constitution which provides a constitutional right to caps on the fees of plaintiff attorneys in medical malpractice cases really was not exactly what it was sold by its proponents to the public to be.
Mr. Former Florida Supreme Court Justice Grimes, speaking for a group of lawyers with ties to doctors, insurers, and health care providers, argued there was a greater public purpose behind Amendment 3 than simply giving malpractice plaintiffs the right to pocket a larger share of lawsuit damages. He said the amendment was designed (secretly?) to help discourage "frivolous" lawsuits against doctors and to bring down the cost of medicine. (Read that to mean discourage Florida attorneys from even meeting with potential medical malpractice clients.) Current Florida Chief Justice Barbara J. Pariente said that the Grimes argument contradicted previous arguments by proponents of Amendment 3 -- as well as the plain language of the amendment -- that its main purpose was to ensure that injured patients receive a larger share of damage awards. Maybe Mr. Former Supreme Court Justice Grimes thinks it is OK to fool the public in the interests of his clients.
The details of the performance of Mr. Former Supreme Court Justice Grimes are contained in a news article posted at Law.com.
Excerpts from news article:
The Florida Supreme Court expressed strong skepticism last week about the effort to stop medical malpractice plaintiffs from waiving the voter-approved cap on attorney contingency fees.
But the justices strongly suggested that they do see the need for a new rule to ensure that plaintiffs fully understand the right they are waiving.
On Nov. 30, the justices were asked to weigh whether plaintiffs lawyers in malpractice cases should be allowed to sidestep the tight fee cap required by Amendment 3, which voters passed in November 2004. Since the constitutional amendment passed, many plaintiffs lawyers have asked their clients to sign waivers allowing the lawyers to take a bigger fee.
During an hourlong oral argument by attorneys representing the Florida Medical Association, The Florida Bar, the Academy of Florida Trial Lawyers, and Gov. Jeb Bush, a majority of justices made it clear that they believed that constitutional rights such as this can be waived.
"I cannot think of any constitutional right that cannot be waived right now," Justice Raoul G. Cantero III said. "Certainly the other rights that are at least as important as the rights in this amendment, even assuming that we call it a right, the right to jury trial can be waived, the right to an attorney, the right to remain silent. All those seem to me at least as important if not more important than this right. Why should we not provide a waiver provision for this?"
Amendment 3 limits plaintiff lawyers to receiving no more than 30 percent of the first $250,000 awarded in a case and no more than 10 percent of anything beyond that amount.
That would mean that in a $1 million verdict, a plaintiffs attorney could receive only $150,000 in fees, compared with $400,000 under current rules. In a $3 million verdict, the attorney could receive $350,000, compared with $900,000 under current rules.
Under current Supreme Court rules, which are among the toughest in the country, contingency fees in all types of cases in Florida are limited to 40 percent of any recovery up to $1 million, plus 30 percent of any portion between $1 million and $2 million, plus 20 percent of any portion exceeding $2 million. Those limits were set in 1987.
Pariente and Justice Charles T. Wells hinted that the high court on its own may order an interim rule to establish a uniform informed consent procedure ensuring that malpractice plaintiffs understand that they are waiving their rights.
Florida's doctors and lawyers have engaged in a long-running battle over medical malpractice that has played out in the halls of the state Capitol, in the voting booth and now in the courts. A year ago, voters approved a trio of constitutional amendments, including one pushed by the Florida Medical Association and two pushed by the Academy of Florida Trial Lawyers. The two sides spent tens of millions to persuade voters to approve their initiatives.
But plaintiff lawyers soon found a way around the strict fee cap contained in Amendment 3 by asking their clients to voluntarily waive their right to the higher percentage of damages.
The alternative, the plaintiffs lawyers say, is not to take medical malpractice cases, because they can't afford to handle such complex, costly lawsuits for the much lower fees they would be able to collect under Amendment 3.
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