Our Something-for-Nothing Age

by JUDGE ELIJAH ADLOW

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IN the twenty-five years that I have served on the Bench, a considerable part of my time has been devoted to the adjudication of claims for personal injuries. As a practicing attorney I had little experience with this sort of litigation. At the law school which I attended the emphasis was on other branches of the law. The young men with whom I associated, both as a student and a novitiate at the Bar, scoffed at the “accident case lawyer.

But by the time that I went on the Bench, in 1928, accident litigation had attained overwhelming proportions. In nearly every court the dockets were several years behind schedule. It the statistics are consulted, it will be found that court entries for this type of litigation reached their highest level during the late twenties. Those claims could not be explained by the widespread popularity of the automobile alone. All kinds of injury claims were being litigated. There were suits against railroads, streetcar lines, municipalities, public utility corporations, merchants, restaurants, and property owners. The lists in the tort sessions were always long, and the corridors were crowded with litigants, lawyers, and witnesses.

Some of the claims stand out because they were so unusual. A large department store once defended an action in my court that was brought by a woman who had suffered a gross indignity from the fact that a very expensive dress she had purchased gave off such an offensive odor at a party she attended that she was obliged to leave. The dress was sent to a chemist and the analysis disclosed that the odor was caused by the presence in the dress of embalming fluid. Further investigation by the store revealed that the dress had been purchased previously by an undertaker for the purpose of dressing a corpse, and after the funeral had been returned to the store. Despite the obvious imposition practiced on the store by the undertaker, there was a breach of warranty for which the store was liable — a fact which it was fair enough to concede.

I have seldom seen any of the prominent accident lawyers in my court. They rarely bring their writs in lower courts. They expend large sums in the preparation of the cases, and seek large awards. In short, they put their trust in juries, and the entire philosophy of their practice is predicated upon the type of mentality which they have to impress to secure verdicts. As a result, despite the fact that I have heard thousands of accident cases during my judicial career, I rarely hear any that involve serious injuries.

The only case I ever heard involving the loss of a leg in an accident was against an uninsured and judgment-proof defendant. I have no doubt that if the defendant in this case had been financially responsible, the case would have been tried before a jury. In the entire quarter-century I have been on the Bench I have not heard over a dozen cases in which the plaintiff suffered a fracture of an arm or leg. And yet the bulk of the business in my court is concerned with personal injury and property damage claims. What are they like?

In nearly every personal injury claim I hear, the injury is usually objectively evidenced by contusions or abrasions. There are many causes which do not even offer this visual proof of injury. In a great many cases the court is called upon to determine the injury on the basis of subjective symptoms described by the plaintiff. By subjective symptoms I mean conditions of which the injured party alone is aware and for the existence of which we must take his word. There can be no doubt that some of these claims are made in good faith and are valid. But no small portion of them are without merit. What baffles the judge is to know which claims are true and which are false.

Even though the specialists in accident litigation prefer to try their serious injury claims before juries, they are not very modest with respect to their expectations regarding the claims they bring in the lower court. Whether the plaintiff has objective symptoms or not, there is usually evidence supported by medical testimony of amazing complications. Most popular among the consequential injuries attributed to accidents are those ailments about which science is none too certain with respect to both diagnosis and prognosis. I have heard doctors tell me that very minor collisions were responsible for most serious ailments. The judge who listens to this evidence day in and day out is confronted with a superhuman task. Whom is he to believe?

To embarrass the judge further, the specialists in accident litigation at the lower court level make claims in behalf of clients regardless of the nature of the accident. I have heard a multitude of causes in which cars touched each other so slightly as to leave no marks on either vehicle. And yet every person in both of the machines involved brought claims for personal injuries. If by any chance any of the passengers had an old ailment, it invariably was reactivated. The courtroom echoes with recitals of dislocated vertebrae, sacroiliacs, reactivated arthritic conditions, and contusions and abrasions. Some of the stories are hard to swallow; some are credible. For the judge who wants to do the right thing the problem is mighty difficult.

Very early in my judicial career I discovered that a great many persons involved in accidents go to their lawyers first and to their doctors afterwards. I also learned that in a great many cases the suggestion that a claim be made came, in the first instance, from doctors consulted by the injured parties. The paradox of the “claim age” is that lawyers discover injuries and doctors find legal liability.

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THERE can be no doubt that there are many worthy cases. Accidents resulting from negligence have brought plenty of tragedy into American homes, and the legitimate claims for losses of earnings, for pain, suffering, and for medical expenses, are in themselves sufficient to constitute a major concern for contemporary America. What provides occasion for alarm is that the plight of the honest victims of accidents has not been lightened by the suspicion and doubt cast on the entire situation by the promoters of spurious claims.

On countless occasions the problems of credibility posed by witnesses, particularly doctors, have made the task of adjudication an exceedingly difficult one. During the thirties, doctors specializing in accident cases were known by the injury patterns into which their patients’ disorders fitted. Certain hospitals were notorious for their build-up of the most insignificant injuries. More notorious than all else was the fact that lawyers diagnosed conditions to suit their interests, and then canvassed the medical fraternity until they found doctors to support their theories.

Lower court judges are frequently scoffed at by accident lawyers for their tightfisted policies in the disposition of claims. Actually they overlook the fact that the cases entered in the lower courts are those which have little jury appeal, and which do not appear serious enough to insurance companies to merit settlement.

There are exceptions. Some very high awards have been made in accident cases in my court. Lawyers with confidence in the inherent merit of their claims and anxious to get a speedy trial have brought their writs there. But these cases are in the decided minority. The plaintiffs who appear before me are never in wheel chairs or on crutches, nor do they sport braces or Thomas collars. These are the indicia of big-money demands and are reserved for the forum where the big money is usually given.

I remember an occasion when a lawyer came to me in the lobby to complain of my dispositions in three cases tried by him before me. These three cases grew out of the same accident, and I had disposed of them by finding in favor of one of the plaintiffs and against the other two. The lawyer was outraged, and he hastened to inform me that I was wrong in all three cases. He told me that the two plaintiffs who had lost should have won; and that the plaintiff who had won should have lost. How he expected me to figure out which of his claims were legitimate I have yet to learn.

Nor are the members of the Bar consistent in their criticism of judges. I have heard them complain that awards were too small when they represented plaintiffs, and that damages were excessive when they represented defendants. The same lawyer who demands the most outrageous damages for his clients will be found most niggardly when he is defending a similar action.

In Massachusetts every automobile owner is required by law to be insured against personal injury claims to the amount of $5000. The widespread use of insurance coverage has produced some awkward court situations. I have had litigated before me cases where mothers sued their sons, where brothers sued their brothers, and where daughters sued their mothers. The amenities of family life that once betokened loyalty, affection, and forgiveness wither in the atmosphere of the claim age. I do not blame the parties so much for these inhuman and incongruous displays as I do the lawyers and doctors who encourage and promote this type of litigation.

The number of claims arising from a single accident often serves to defeat the meritorious claimants. During the thirties a streetcar operated by the Boston Elevated Railway jumped the track. The maximum load which the car could carry approximated 50 passengers, and yet over 200 people filed claims against the streetcar line for injuries. The young lawyer for the defendant showed the mark of genius on this occasion. He marked all the cases for trial at the same time, and the entire army of litigants appeared in my court on the same day. I had all I could do to get into the courtroom. This case afforded an unusual opportunity to discover the extent to which our age has been corrupted by the rage for litigation.

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SOME of us are old enough to remember the accidents that happened at the corner grocery store or on the steps of a neighbor’s house, the occasional bite by a neighbor’s dog, or the nip on the arm by a horse in the street. There were countless experiences which resulted in injury but which were forgiven and forgotten in the hustle and bustle of daily life.

In every household there were occasional discussions of the good fortune of this or that fellow who was in an accident and who, by dint of the remarkable talents of a lawyer, managed to get an absurdly high settlement or an equally absurd verdict. To this day there is feeling in certain circles that money given for injuries is in the nature of a windfall, even when the injury is genuine and the award is merited.

In tracing the development of our claim-minded age certain things stand out. We hardly ever see a case litigated against a poor man. Few lawyers are interested in the empty satisfaction of a finding in favor of a client. What they want is the opportunity to share in a generous award; and it must be an award that is collectible. That is why suits against municipalities and against utility corporations were so popular during the nineteenth century. That is why suits against automobilists became popular in the early days of the automobile when to own an automobile was usually an assurance of financial dependability.

As a result of the vast expansion of the casualty insurance business, nearly every automobile owner holds out to the world the same promise of financial accountability that was previously afforded by municipalities, railways, and streetcar lines. Where at one time only a small fraction of accidents offered any prospect of collecting damages, today the judgment-proof defendant is the exception rather than the rule. It would be hard to determine whether the mammoth proportions attained by the accident claim situation derive from the widespread insurance coverage that guarantees financial responsibility, or whether the resort to insurance is the consequence of the notorious conditions provided by a claim-minded generation.

There is an intense competition for business among tort lawyers. It is not unusual for lawyers who specialize in accident cases to advance money to claimants on the strength of prospective settlements. I have heard of claimants actually shopping around among lawyers and giving the claim to the lawyer who offered the largest advance. I have heard of lawyers who bring radios and other items of utility to patients at hospitals in the hope of handling their claims. In an age that echoes the virtues of the something-for-nothing philosophy, a man with an accident claim of most modest size is in a position to do a great deal of chiseling.

I have heard of many occasions when lawyers have been victimized by claimants. Some years ago a defendant appeared in my criminal session charged with larceny. His racket consisted of going to lawyers’ offices and telling of a serious accident in which he had received permanent injuries. This defendant knew the kind of a case that could warm a real accident lawyer’s heart. It was always a case with perfect liability and always against a defendant who would pay any verdict a jury might render. Naturally a client like that had all the earmarks of a “gift from heaven.” But there was always the temporary financial embarrassment that came from the loss of earnings due to the accident, and the client invariably requested a small loan which would be repaid when the case was settled. This faker had worked the racket on over fifty lawyers in Boston alone. The police had a list of his victims and it was amazing for me to discover among them the names of men who enjoyed an excellent standing at the Bar.

Recently a man was brought before a colleague of mine and charged with four distinct larcenies from insurance companies. This man, feigning blindness, walked the streets wearing black glasses and using a cane. He would hook his cane on the bumper of a car and fall down. Bystanders, impressed with his apparent helplessness, would assist him to his feet and stop the driver of the car which allegedly struck him. The next day he would go to the insurance company to which the driver referred him and settle his claim for sums ranging from $25 to $75. Within ten days he had made four such settlements. My associate sent this man to the Psychopathic Hospital, where it was speedily discovered that he was not blind, nor even psychotic. He was just an ordinary crook. As this is being written, he is serving a sentence in the House of Correction.

His story is not unusual or exceptional. On many occasions I have seen lawyers withdraw from cases on discovering that they have been victimized by professional claimants. It is not unusual to learn that claimants have attributed the same injury to more than one accident, and that the same claimants have had three or four claims pending in the hands of as many different lawyers at the same time.

Particularly vulnerable at the present time are the insurance companies, who are subject to pressure from their assured. In times like these, when wages are high, there is much to be saved by the speedy settlement of claims. It is not only the loss of the wages which the witnesses must be paid while they are in court, but the disruption of the business routine occasioned by their absence, that gives concern. As a result, cases that can be settled for what appears to be a small amount are rarely entered in court.

Other considerations explain the desire to settle claims. The major defect of our judicial system is in the unpredictability of judges and of juries. When I have discussed questions of liability and damage with my colleagues on the Bench, I have been amazed at the wide differences in their reactions to identical facts. If judges in the honest expression of viewpoint can uncover such differences, is it any wonder that injuries can prove disappointing on occasion?

It is easy to understand why people mistrust courts when they pick up the morning paper and read a headline that announces that a jury in Tennessee has awarded $200,000 to a boy maimed as a consequence of a doctor’s negligence. What confidence can a defendant in a tort case have when he reads that a jury in New York awarded a man damages in the amount of $106,000 because injuries suffered by him in an elevator accident changed him “from a happy, home-loving father to . . . a brooding crank”? Can we blame people for a lack of confidence in the judicial process when we read that in Pittsburgh a judge awarded a widow $13,096 for the loss of her husband ” by being sucked into a blast furnace,” even though no one saw him being sucked into the blast furnace, or saw him burning in it, or saw any remains that would indicate that he had burned to death? And there is something ludicrous about a jury deciding that a cancerous condition which caused death was caused by the presence of a foreign substance in a cookie the deceased had eaten several years before. When the entire world of science is at a loss to explain the cause of cancer, isn’t it ridiculous to believe that a jury is able to decide the question?

In recent years Congress has passed compensation laws to protect workers in interstate commerce. Among the more prominent beneficiaries of this legislation are the railroad workers and the seamen of America. In drafting these Federal acts, Congress ignored completely the workmen’s compensation acts and the death statutes of our various states. As a result workers in interstate commerce enjoy tremendous advantages over local workers in the benefits derived from compensation claims. In recent years juries in Federal courts have rendered fantastic verdicts in cases involving either fatal accidents or ordinary injuries.

Within a few months I have read of the widow of a railroad worker receiving an award of $140,000 for the death of her husband. In the same court a fisherman who suffered permanent injury to his hands while at sea received an award of $160,000. Hardly a week goes by that does not witness huge awards by Federal juries in similar cases. These awards give added impetus to the urge of a claimminded generation for more and bigger claims. Within the last six months one lawyer secured over a half million dollars in awards in the Federal court in Boston against one defendant alone. If this is typical of what is happening all over America, it is easy to see where our jack-pot method of handling claims is landing us.

In the days when commutative justice was the vogue, liability was predicated on fault, and to discover who was to blame was an important phase of every trial. Today a socially conscious world is dedicated to the task of providing for injured persons regardless of whether they are blameworthy. If we are to change the basis of responsibility and throw the burden on those who can pay rather than on those who are to blame, we should at least establish a rational basis for determining damage. Our state workmen’s compensation systems have much to commend them. What is more, courts are entitled to the advice of impartial doctors in determining injury. The idea that a judge or a jury can make a decision that is intelligent on the basis of conflicting medical testimony is preposterous.

Our legislatures can do something about the absurd rules of evidence which prevent the fact that a plaintiff is a chronic litigant, from being made known to a jury. They can change the rules regarding damages, which should be limited to loss actually sustained. Why should a man who draws his salary while convalescing from an injury be paid for his loss of earnings? And in an age when the burden is thrown on the man who can pay rather than on the man who is to blame, why should fantastic allowances be made for pain and suffering?

Today insurance represents one of America’s major industries. It has done little or nothing to stop the claims racket. At times I have suspected that the insurance companies enjoy the development of a situation which has driven every man who is financially responsible to take out more and more coverage.

We should revise the statutory basis on which the victims of accidents are reimbursed for their loss. The Federal and state compensation laws should be brought into harmony with one another. It is absurd to give the widow of a man employed by a local trucking concern $15,000 for his death, while the widow of a switchman killed in a near-by freight yard gets $140,000. And what makes the entire spectacle more sickening is that the same Congress that gives a soldier who has lost both arms in Korea an allowance of $200 a month has so legislated that a fisherman who suffers similar injuries on his job can obtain an award of $160,000.