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December 3, 2003

Non-Litigating Trial Lawyers on Trial

Filed under: pre-06-2006 — David Giacalone @ 9:00 am

A Missouri personal injury law firm is facing malpractice charges that include its propensity to avoid going to trial.   According to an article at (Nov. 29, 2003), which is highlighted in today’s Daily NewsWire, the widow of a mesothelioma victim is suing Goldenberg, Miller, Heller and Antognoli for malpractice on the grounds that its private, out-of-court settlement on her behalf was inadequate.   The complaint alleges that the firm has not taken a mesothelioma case to verdict in nearly a decade, and that defense lawyers offer less money when they don’t think plaintiff’s counsel will force a trial.  (Carolyn Elefant at pointed to this article on Nov. 30th)

A more colorful case with a similar focus came out of Rochester, NY, last year and was covered in depth at (scroll to June 17, 2002).  In June 2002, a Rochester jury found attorney Jim “The Hammer” Shapiro committed malpractice and false advertising, and awarded $1.9 million to a former client of his.   As a competing firm claims on their website, where they are seeking to help former Hammer clients: “In his TV commercials, personal injury lawyer Jim Shapiro calls himself ‘The Hammer,’ claims he is the ‘meanest S.O.B.  in town,’ and promises to deliver every dime possible for accident victims. The facts: Shapiro lives in Florida and has never tried a case in court!”

  • Shapiro’s ads were highlighted in a article titled “Lawyer Ads Get Loud.” The author, Jeff Williams, noted that manic lawyer ads have spread from late-night TV to the Web:
“I’m Jim ‘The Hammer’ Shapiro,” proclaims this New York attorney’s site. “I get money for seriously injured people … from imbeciles who hurt innocent people … I want to get YOU the biggest, fattest cash award I can, as fast as I can, from as many defendants as I can find. Just call me! Day or night, I’ll talk to you free.”

The Prairielaw article asks “Aren’t there rules about this? Just how far can lawyers go?” and gives a good general explanation of the issues involved.

Here at ethicalEsq, we believe this line of cases can serve clients well.  Trial lawyers need to make clear to clients upfront whether their strategy and track record is to settle and avoid trial.  It’s not just a matter of malpractice and misleading advertising.  If a law firm’s business plan is to attract lots of clients and settle their cases quickly, with no likelihood of trial, charging the standard contingency fee is almost certainly unethical, as the risk of putting in a significant amount of uncompensated hours is far less than when the firm is willing to go to trial.  Unless the client is fully informed and can negotiate the level of the contingency fee, a strategy of quick settlement shortchanges the client and overcompensates the lawyer. [See our posting Using a Standard Contingency Fee is Often Unethical]

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