To Sue or Not to Sue

Bill Neinast

The gouge is no longer visible.  The ragged hole in front of the bale press at the Texas Cotton Gin Museum in Burton is now covered with a piece of metal.

The covered bruised wood is part of the footprint of the heavy front of the press.  In the hey day of the gin, a 500 pound bale of cotton was pulled out of the press and weighed every 12 minutes.

To maintain that pace, the press men could not lower the sides of the press to remove the bales at a leisurely pace.  The heavy sides were, more or less, dropped to the floor.  The heavy metal strap and lock on that dropping door are what slowly gouged the wood away.

One of the legends from the gin is that a farmer came to the press to watch his bale weighed.  His foot happened to be where the press door fell.    So he got a broken foot to accompany his bale of cotton home.

There is no record of the farmer’s reaction.  This was back in the 30s though, so he was probably thinking, “Darn!!, that was stupid.  I’ll never do that again.”

If such an accident were to happen today, the farmer’s reaction would be very different.  Even before “#*//&#!!!. that hurts” could pass through his lips, he would ask “Where’s the nearest lawyer’s office?”

This reaction reflects a new mood in the country. The belief in personal responsibility has disappeared in the last quarter century.  Now, regardless of the circumstances, when something bad happens to an individual or family, someone else has to pay for it.

The railroad crossing incident in Midland, Texas, where several wounded military heroes were killed or injured and the school massacre in Newtown, Connecticut are cases on point. 

Within a week of the Midland tragedy, a suit was filed against the railroad and Slick Industries, the company that lent an eighteen wheeler and a driver to the organizers of the event to honor the veterans.  Last week, a second suit was filed against those two companies.

Last week, also, a lawyer was seeking authority to sue the state of Connecticut for 100 million dollars for failing to provide protection for children in Newtown.

This is not the time or place to discuss the merits of the these cases.  The focus is why the suits were filed.

Believing that the plaintiffs in these these proceedings just happened to think in the first days of their grief about making someone pay for their losses is unrealistic.  Believing that they were contacted by lawyers’ representatives within hours of the incidents with offers of “help” is more realistic.

If there is any doubt about whether these suits were the initial thoughts of the victims, consider the flood of TV ads offering legal assistance.  According to those ads appearing repeatedly on every TV set, any ailment or discomfort you are suffering “may be due to some medicine you are taking or have taken.  Let us help you sue the pharmaceutical company that put the drug on the market.”

One of the more recent TV solicitations is aimed at survivors of individuals who died while on a dialysis regime and took certain medications.  The fact that the deceased were suffering from serious kidney failure is immaterial.  According to the ad, “He or she died from that terrible medicine negligently manufactured by rapacious pharmaceutical companies and approved by the FDA.  Let us help you sue them.”

Then there are the ads for anyone who worked outside the home in the last 50 years.  If you are ill, you are probably suffering from mesothelioma caused by greedy manufacturers of asbestos.  Call us “to see if you might be entitled to compensation.”

So here’s the perspective.

Unfortunately, the TV advertising mentioned above is legal under the U.S. Supreme Court decision in Bates vs. State Bar of Arizona in 1977.

Direct solicitation, however, is a different matter.  That is a criminal act of barratry, which is defined as creating legal business by stirring up disputes and quarrels, generally for the benefit of the lawyer who sets fees in the matter.

Depending on which section of the law is violated, barratry is either a Class A misdemeanor or a felony of the third degree under Section 38.12 of the Texas Penal Code.

Because of the problems of proof, that criminal sanction is rarely, if ever, used.  A new law, however, may give it more teeth.

In 2011, the Texas legislature added Section 82.0651 to the Texas Government Code.  Under this new law, a victim sucked into a law suit has recourse against the bottom feeding lawyer.  Barratry victims can now void the contract they had with the lawyer who solicited them and recover a $10,000 penalty, actual damages caused by the prohibited conduct, and reasonable and necessary attorney fees. 

Maybe this will spawn a new class of lawyers to sue the lawyers who have been enticing clients with promises of huge monetary awards.  That, in turn, could result in slowly returning to a society where most individuals have a sense of personal responsibility.

How nice it would be to hear again “Darn!!, that was stupid,” instead of “Where’s the nearest lawyer’s office?”


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