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Vanderbilt Law Review

First Page

1051

Abstract

Our interest is in medical malpractice as an area of specialized practice for plaintiffs' lawyers, and we want to explore this area because plaintiffs' lawyers are key actors in the medical malpractice system. An understanding of their role is necessary in identifying what problems may exist in this system and in evaluating both proposed and enacted solutions. Indeed, some reforms appear to be specifically aimed at plaintiffs' lawyers who handle medical malpractice cases-especially the repeat players whose experience and expertise may give them, and hence their clients, a strategic advantage.

Like most of the political rhetoric surrounding medical malpractice, the characterization of lawyers representing plaintiffs has always been vivid, symbolically charged, and divorced from reality. The rhetoric's purpose, of course, is not to present an accurate picture of reality. The idea is to gain political advantage by portraying such lawyers in the most negative light and to blame them for a host of ills curable only by medical malpractice reform. Writing in 1991, Randall Bovbjerg and his colleagues summarized the medical * Senior Research Fellow, American Bar Foundation, Chicago, IL. community's views, saying that physicians believe there is systematic jury bias against them.1 Physicians also believe that "[bjecause malpractice plaintiffs receive extravagant amounts in malpractice cases, their contingent-fee lawyers also earn too much-far more than needed to assure competent representation. Hence, the lawyers are willing to take even more and weaker cases to trial in the hopes of hitting the 'jackpot."'2 Herein, supposedly, lies the gist of the problem. The "greedy, opportunistic lawyer" characterization leaves little room for a perspective that recognizes sophisticated specialization by plaintiffs' lawyers. Such an alternative perspective would require us to view malpractice differently, because it calls into question both the "jackpot lawyer" as a key cause of the "malpractice crisis" and what this theory presumes about the malpractice system. Specialization in malpractice cannot be built on a "jackpot" system of weak cases and jury sympathy, because malpractice cases are complex, expensive, and risky. Instead, a successful practice is built on the development of expertise and the strategic advantages that come from being a repeat player, rather than an infrequent "jackpot" player. Success comes with the development of advantages sufficient to offset the strategic advantages of the insurance companies and their lawyers, who are the epitome of repeat players. In fact, the existence of specialists itself calls into question the veracity of the "jackpot" characterization of the malpractice system.

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