"Run-of-the-Mill Justice" by Stanford Law professor Nora Freeman Engstrom, published in a recent issue of Georgetown Journal of Legal Ethics, analyzes the practices of "settlement mill" law firms — those that "advertise aggressively, sign a higher percentage of callers to contract, delegate more duties to non-lawyers, file fewer lawsuits, and take far fewer cases to trial" than legitimate law firms and attorneys. 

Over the past three decades, no development in the legal services industry has been more widely observed and less carefully scrutinized than the emergence of firms I call “settlement mills”—high-volume personal injury law practices that aggressively advertise and mass produce the resolution of claims, typically with little client interaction and without initiating lawsuits, much less taking claims to trial. Settlement mills process  tens of thousands of claims each year. Their ads are fixtures on late-night television and big-city billboards.

These settlement mills differ from conventional law practices because they settle everything, and do so without the negotiator having the benefit of "(1) first-hand information about verdicts obtained in comparable cases, (2) detailed information about the intricacies of the particular claim, and (3) the proven willingness and ability to take the claim to court."

Settling all cases  — including the catastrophic cases —  cheaply in relation to the value the cases would have at trial, the settlement mills lack the ability to credibly move cases to jury trial, but offer insurance companies quick, cheap settlements.

Attorneys at settlement mills handle an extraordinarily high number of cases, necessarily treating them in "cookie cutter" fashion. Consequently, they spend "little time engaged in legal research, investigating claims, and preparing pleadings." The article reports that "one Georgia settlement mill attorney reports that she personally settled approximately 600 to 700 claims in a thirteen-month span." 

Client screening and even settlement negotiations are delegated to non-lawyers. Cases may go from intake to settlement without any attorney contact.

Many of these settlement mills seldom file suit ior investigate cases, and almost never take a case to trial or refer to a firm that is capable of doing so.

Negotiations with insurance adjusters may take no more than ten minutes, and then clients are pressured to take whatever it offered. (Thus the slogan "one call that’s all" may be literally true — one call to the insurance company is all you get.)

Such settlement mills prey upon uneducated and unsophisticated people.

Such firms rely upon heavy TV advertising. Since TV advertising lawyers are stigmatized among lawyers and judges, the attorneys in those firms no longer feel bound by a need to maintain good reputations in the profession. Thus, there is no need to do good work for clients in order to maintain a strong reputation among other attorneys. If a lawyer relies solely upon heavy advertising to produce clients, reputation and relationships do not matter. All he needs is a heavy advertising budget and a steady flow of unsophisticated, unsuspecting clients to sell down the river.

They negotiate claims on the basis of formulas that have little to do with the value of cases if they were taken to trial.

The article concludes that insurance companies like settlement mills because they settle quickly and cheaply, even in catastrophic cases, without litigation.

 Such law firms are able to operate in this manner only because federal courts bar tough regulation of legal advertising, and their operations operate "under the radar" because they almost never file their cases in courts. They are the kudzu of the legal system, operating in a manner generally contrary to the interest of their clients and the public, and just as hard as kudzu to limit.

This morning I met with a family who suffered a tragic loss when a tractor trailer ran over the parents late in 2008.  The mother was killed and the father seriously injured. 

They got me involved a couple of weeks after the crash when one of the sons found me on the Internet and invited me to meet with the family.  We put our rapid response strategy to work and are now on the brink of settling the case for all available insurance policy limits. 

Because I agreed to reduce my contingent fee to 20% if we settled within the first

This morning I got a call from a man in ICU at one of our local hospitals. He said he has hit by a tractor trailer yesterday, and that he had two fractured femurs, a ruptured spleen, ruptured discs, crushed vertebra, etc., and asked if I could meet him at the hospital.  I agreed to see him this afternoon at the hospital, which is near my home.

When I arrived a little early at ICU, I found another lawyer at the nurses’ station. Apparently he ran a little late and I ran a little early, so me bumped into each other. He had noticed that when the guy shifted his hospital gown, there were no bruises to correlate with the types of injuries he was describing. The nurse told us that this man had no traumatic injuries, but does have colon cancer.

The lawyer who was at the nurse’s station said he had heard of someone with a similar story trying to get a $5,000 advance from another lawyer, who refused the request.
  Apparently the guy was trying to shake down lawyers for "advances" on his great case.

Later I posted a warning on a couple of lawyer listservs and received responses from several other attorneys who had been hit with the same scam.  One admitted he had signed up the case before he figured out it was a scam.  None acknowledged having made any advances, which would be highly improper.

One of my more paranoid friends has suggested that this could be a trap set by the various “anti-lawyer” groups attempting to film the meetings clandestinely and then use the video for a TV documentary or commercials to argue for tort reform. I am more inclined to believe he was just a scam artist playing his own little independent game.

I must say that 99.9% of all potential clients with whom I have met in person over the past 30 years have been pretty sincere folks who honestly believed they had a case. While I decline most proposed cases because I see less legal or economic merit than they perceive, most are pretty decent folks. Often when I don’t accept a case, I try to make an appropriate referral or give some free advice.

However, when a lawyer finds himself or herself in an interview with a potential client and "smells a rat," one should:

  1. Politely but firmly decline any request for an advance of funds against a future recovery. See Rule of Professional Conduct 1.8 (e), which provides: "A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that: (1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; or
    (2) a lawyer representing a client unable to pay court costs and expenses of litigation may pay those costs and expenses on behalf of the client."
  2. Be prepared to give a polite, respectful but firm lecture on your ethical duties as an attorney. See, e.g., Rules of Professional Conduct 1.16 (Declining or Terminating Representation) , Rule 3.1 (Meritorious Claims and Contentions), and Rule 4.1 (Truthfulness in Statements to Others).   In the unlikely event that you’re on "Sixty Minutes," make it a speech that would make both your mother and your legal ethics professor proud.

Remember the example of South Dakota Republican Senator Larry Presler who, when being secretly taped in the Abscam sting investigation, responded, "Wait a minute, what you are suggesting may be illegal," and reported the incident to the FBI. 

Ron Ellington, a professor at the University of Georgia Law School, recently spoke to the inductees of Phi Beta Kappa at UGA. His remarks deserve wider distribution.  He points out how the smartest and wisest leaders of a previous generation were dead wrong on one big issue, and suggests how to recognize when we are wrong.

  1. Be humble.
  2. Be intellectually honest and strive for objectivity. Be open minded to evidence / facts that may challenge or run counter to your initial views.
  3. Look for anomalies.

The full text of Professor Ellington’s remarks appears below.

I grew up in rural Alabama and Georgia in the 1950s and 1960s, and began my legal career under a DA who instructed us to always strike all blacks from juries. When I decided to prosecute a black-on-black rape case in 1978, just as I had a white-on-white rape case, some of the folks around me thought I was crazy to defy stereotypical thinking. That’s how things were in those days.

The more I deal with human beings of every possible racial, religious and ethnic background, the more convinced I am that stereotyping is fundamentally invalid.  Victoria Pynchon on the Settle It Now Negotiation Blog that focuses on mediation and other alternative dispute resolution has a good post on point. 

She starts by quoting a song that I sang every Sunday  as a small child on the front row of a little country church.  Even as a preschooler in rural Alabama in the 1950s, I found it puzzling, in light of the prevalent attitude of most adults in that time and place: "Red and yellow black and white they are precious in his sight Jesus loves the little children of the world."

She goes on to quote at length from a book by Ken Cloke, Conflict Revolution Mediating Evil, War, Injustice and Terrorism:

Prejudice is complex and operates on many levels. It can be found not only in insults and judgments, caricatures and stereotypes, but refusals to listen and communicate, stories of demonization and victimization, inability to experience empathy with others, and infinitesimal denials of humanity. It is reflected in personal selfishness and hostile relationships, bullying and aggressive behaviors, and ego compensations based on poor self-esteem. It is expressed through contempt, disregard, and domination, as well as through low status, inequitable pay, and autocratic power.

Prejudice commonly operates by stereotyping. People form stereotypes, in my experience, in eight easy steps:

1. Pick a characteristic
2. Blow it out of proportion
3. Collapse the person into the characteristic
4. Ignore individual differences and variations
5. Disregard subtleties and complexities
6. Overlook commonalities
7. Match it to your own worst fears
8. Make it cruel

If these steps routinely produce prejudice, it is possible to undo them, for example, by making people more complex than their stereotype permits, or distinguishing unique individuals within a group, or recognizing commonalities between people. It helps, in doing so, to acknowledge that everyone is equal, unique, and interesting; that everyone forms prejudices; that everyone can learn to overcome them through awareness, empathy, and communication; and that everyone can become more skillful in communicating across stereotypes and lines of separation created by fear.

Racial attitudes have advanced light years in my lifetime. While we have not reached "the promised land" in terms of eliminating prejudice, there is no comparison to the open, often vicious, legally sanctioned racism that was part of the world in which I grew up.  I remember in 1967, when my high school was desegregated (eight years before Tiger Woods was born, and when Barack Obama was six years old), telling a friend that in a hundred years race would be irrelevant.  We are 41 years into that century. I don’t know if my idealistic, adolescent prediction will hit the mark, but we have certainly come a long way.

What do you think?


Saturday morning, at the request of a patient’s family  who urgently want to provide for his care needs, I visited an intensive care unit at Grady Memorial Hospital to attempt to interview a man who became a quadriplegic in a recent traffic collision. Laying paralyzed in a bed, breathing through a tube, he was too sedated to respond to a sibling’s attempts to wake him. We may have to have a family member appointed by the probate court to handle his affairs.  The previous afternoon, I had met with a father whose beautiful 16-year-old daughter went out on a date, the boy who was driving wrapped his car around a telephone pole, she had a bad head injury, and died a few weeks later in the hospital.  I don’t know if the evidence will ultimately be sufficient for me to do any good for these folks, but I will explore all reasonable options.

The seemingly random cruelty of fate is tangible at such times. When I was in my teens, a popular TV show included each week the "flying fickle finger of fate award." It was presented as comedy then, but too often it is part of tragedy.  It seems that nearly everyone I represent has been presented this unwelcome "award."

Sometimes well-meaning people try to say that it was "the Lord’s will" or "the Lord took her" when a person was killed or catastrophically injured.  As a long-time adult Sunday School teacher, I think that is warped theology. It’s wrong to blame God when people break rules and cause tragedies.  Hurricanes and tsunamis are acts of God.  Truck wrecks are acts of men and of corporations, and they should be held accountable for the harm they cause.

Sometimes we can obtain justice for victims and their families. Other times all we can do is provide the comfort that someone who is knowledgeable cared enough to try. A trial lawyer is called to be more that just a gladiator.  We need to remember that highest source of law and of professionalism is a rule of unselfish love, of sincere concern for the highest good for the other person.  While we are not grief counselors or psychologists, we need to be able to help folks get through the ordeal of their loss.

As a trial lawyer with something of a conservative streak, I keep up with what the tort reform folks are saying, and occasionally even agree on some point. The American Tort Reform Association is highlighting a study of online information about hazards of pharmaceutical products, published by the New York-based Center for Medicine in the Public Interest, as justification for calling upon State Bar associations to require that lawyers clearly identify themselves on Web sites they sponsor.

We do not use any of those online lawyer referral services, do not participate in any web site that does not fully identify this firm, and have no problem with disclosure of the sponsors of such sites.  On the other hand, it may be impracticable to list all participants in broad-based private or Bar-sponsored lawyer referral services. Both Georgia and the ABA Model Rules cover what is permissible in payment for use of lawyer referral services.  We are in the process of reviewing updates in the Georgia Rules of Professional Conduct, and I am on the Disciplinary Rules & Procedures Committee. I’m sure we will give this issue due consideration and try to strike a fair, realistic balance.

Yesterday, for the fifth consecutive year, I served as program chair for the Georgia Personal Injury Practice Seminar sponsored by the Institute for Continuing Legal Education in Georgia.  As always, I followed my father’s advice to "surround yourself with people who are smarter than you" by recruiting as speakers some of the brightest lawyers in Georgia. As always, I learned far more from the other speakers than I taught in my own presentation titled simply, "Truck Wreck Cases."  While participation in CLE programs is time consuming, I find that I always get more out of it than I put in.