The Duty (and Honor) of Debating the Facts
By Guy Harrison
2002-2003 State Bar of Texas President
Editor's note (October 2006): This column from February 2003 appears periodically on TexasBar.com because emails about the Stella Awards, which are fake, continue to circulate on the Internet.
The Duty (and Honor) of Debating the Facts
“It is the province of knowledge to speak and it is the privilege of wisdom to listen.” — Oliver Wendell Holmes, Sr.
The e-mail was from a non-lawyer friend of mine, whose habit it is to remind me of his, if not the public’s, perception of my chosen profession. The subject line declared, “The Stella Awards.”
“The Stella Awards” is a reference to Stella Liebeck, the woman awarded damages against McDonalds for burns suffered from scalding coffee. The principal case reported this year was a man who set his Winnebago on cruise control, got up to get a cup of coffee, and crashed because there was no warning that a driver should stay in control of the vehicle. Reportedly, he was to receive $1.75 million. Other mentions were given to an Austin woman, who tripped over her misbehaving toddler in a furniture store and received $780,000, and a man in Los Angeles who was awarded money when a car he was stealing ran over his hand.
Deleting the e-mail without responding, in retrospect, may have given credence to the stories or belied a careless attitude toward my perception of my chosen profession. Were any of the stories true, as reported, there indeed was a need for reform. Were they false, allowing the perception that they be true was a failing.
“As a public citizen, a lawyer should seek improvement of the law, the administration of justice and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education.” Those are words plucked directly from paragraph five of the preamble to our Texas Rules of Disciplinary Conduct. In doing nothing, I failed them.
What I should have done was investigate, perhaps visit Snopes.com, which, I am told, checks out “urban myths,” or at least I could have called a lawyer in Austin to check out the Texas case. Had I done so, I would have learned that there was only one thing wrong with the above cited matters — none of them ever happened.
So why report this in this space? Because we as lawyers have a duty to defend our profession when it is in need of defense and a like duty to be informed on shortcomings in an effort to help change the system for the good. If it be proven frivolous lawsuits are a problem, if there is rampant forum shopping in violation of rules of procedure, if there are changes that will improve the system, to not acknowledge them is to allow only one side to be heard in the debate. Hand in glove with our duty to be informed regarding needed changes is our duty to defend ill informed calls that change be made for change’s sake.
The latest example is the talk show circuit of individuals such as former Texas judge Catherine Crier, who makes the blanket statement that contingent fee contracts are the bane of our legal system. When spoken from a pulpit of a supposed fair and balanced media studio, the call is given immediate credibility without the real balance of the other side or as Paul Harvey might add, “the rest of the story.” The rest, or at least another part, of the contingent fee story was written rather succinctly by Justice Ruth Bader Ginsburg last year in the U.S. Supreme Court case, Gisbrecht v. Barnhart,(1) where she was joined by Justices Rehnquist, Stevens, O’Connor, Kennedy, Souter, Thomas, and Breyer.
In the Gisbrecht case, Justice Ginsburg points out that such fees are common not only in tort litigation, but also patent litigation, real estate tax appeals, mergers and acquisitions, and public offerings. The Honorable Justice incorporated in the opinion a Social Security Administration statement to the U.S. Congress regarding contingent fees, that the agency could “identify no more effective means of ensuring claimant access to attorney representation.”(2)
The purpose of this opinion page is not to lonely champion the argument for contingent fee arrangements but to make the entreaty that all lawyers should be prepared to debate facts and to join the effort against any diminution of the ability for all citizens to seek redress in our courts. The arguments made in matters put forth as fact, like the "Stella Awards," are but thinly veiled stabs at our profession with the end result being the lessening of the legal system. Only those armed with facts can defeat those chortling in fancy and it is the duty, no, it is the honor, of every lawyer to arm oneself with the facts when possible and not allow to rest in quiet, the uncontested editorializing of those who would take away from our system of justice. Likewise, we should not shy from acknowledging well debated shortcomings within the system if they be shown and be part of the drafting in reasoned call for amendments or change. Law practice, our profession, what we do, the entirety of what the law is and how it serves the people is too important to trivialize serious discussion with the banter of inflammatory irrelevancies. We have a duty to be informed and to join the debate.
As John Adams put it so much clearer than I: "Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of the facts and evidence." Unfortunately, the silence of the profession and those of us as individual lawyers, create scenarios whereby the fancies put forth become the facts if we do not speak up. That's not an opinion, that's a fact.
Notes
1. Gisbrecht v. Barnhart, No. 01-131, 535 U.S. ___, 122 S. Ct. 1817 (2002).
2. SSA report 10-11.
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