’ll never forget my first day of law school. It was orientation day and the dean wanted to know why we were there. He then listed several reasons and asked us to raise our hands if any of them described our motivation. He mentioned public service, making the world a better place, money and, finally, "because you had nothing better to do."
I raised my hand for the last category. We were in the middle of a recession. Jobs were scarce and I knew how to do school. I figured law school would be a good place to hide for three years while I figured out what I wanted to be when I grew up. I guess I’m still working on that one 20 years later.
Not too many folks raised their hands for "public service," but many of those who did have been involved in various aspects of politics and other public interest fields. "Money" was the No. 1 reason most of my class went to law school, although hands were raised only after the dean opined that it was just as noble a reason as any. To this day, I applaud the integrity of those classmates who were unabashed in giving that honest answer.
I’m guessing that a fair number of those in our profession who wanted to make the world a better place ended up being plaintiffs’ attorneys. My recollection is that, over three years of law school, they turned out to be some of the most argumentative and aggressive individuals in the school.
Now, I don’t litigate, so I have little day-to-day contact with plaintiffs’ attorneys. Most of my time is spent dealing with enforcement attorneys from various agencies. Their roles are similar; the major difference being that agency attorneys don’t need to drum up business in order to get a paycheck, at least not the way a private attorney does. And in my experience working with financial services clients for the last 20 years, I see too many plaintiffs’ counsel looking to line their pockets first and redress alleged wrongs second.
In fact, it’s not unusual for one of my clients to get a form letter from a plaintiff’s attorney with a demand for a few thousand dollars for some alleged wrong done to his or her client. While many clients will fight these allegations on principle (assuming, of course, the allegations are false), these attorneys know that some percentage of financial services providers will just pay up on the grounds that it’s cheaper to do so than to waste resources fighting those allegations.
Then there are the plaintiffs’’ counsels who actively seek big paydays. They’ll advertise on TV, put ads in the paper or send out targeted mailings. The financial services industry and auto dealers have been a target of these individuals for years, and all they’re looking for is the most minor of violations. Many clients will settle claims even if they did nothing wrong, especially when the price tag starts reaching seven figures. In fact, in a well-known fair lending case a number of years ago, where there was no evidence of wrongdoing on the part of the finance companies named in the suit, the plaintiffs’ counsel made millions while the class got coupons to use toward financing a new car.
Don’t get me wrong, there are lots of plaintiffs’ attorneys who do a lot of good for the clients they represent, and I wouldn’t want to imagine a world without them. But I am embarrassed for my profession by those who go in search of harmless errors in order to collect big paydays.
What is your defense against these predators? Like that old cliché goes, "A good offense is the best defense." You won’t make the plaintiffs’ attorneys stop looking for lawsuits, but effective compliance policies and procedures that are well implemented and periodically audited can go a long way toward fending off questionable claims.
And contrary to popular belief, arbitration agreements are an acceptable and valid means of permitting individual consumer harm to be redressed without the cost and expense of a class action. They are also a buzzkill for most plaintiffs’ counsel. So, time spent tightening up your compliance management and crafting a good arbitration agreement will pay dividends in the form of lower litigation costs.
For the record, I expect those more predatory plaintiffs’ counsel would have raised their hands for "making the world a better place." The question is, "For whom?" They would have shown far more integrity had they joined the "money" group.
Michael Benoit is a partner in the Washington, D.C., office of Hudson Cook LLP. He is a frequent speaker and writer on a variety of consumer credit topics. E-mail him at [email protected] Nothing in this article is legal advice and should not be taken as such. Please address all legal questions to your counsel.