In Defense of Trial Attorneys: New PaTLA President Says Her Kind Is Getting a Bad Rap

Monday, September 15, 1997
By Ritchenya A. Shepherd
Of the Legal Staff

The newly installed president of the Pennsylvania Trial Lawyers Association says she thinks tort attorneys are getting a bad rap – and she intends to spend much of the next year trying to set the record straight.

“The theme for my term is telling the truth about the civil justice system,” Philadelphia attorney Carol Nelson Shepherd said in a recent interview with The Legal Intelligence.

“The truth is that the tort system works,” said Shepherd, 45, speaking from her corner office at Feldman Shepherd & Wolgelernter, a six-attorney civil litigation firm she helped found 10 years ago.

Tort claims are resolved 99 percent of the time in a reasonable, cost effective manner, she said. Too often, stories the public hears about the legal system’s excesses “are either untrue or misleading,” she said.

Tort attorneys need to do a better job defending the role they play in society of protecting consumers from the adverse interests of big business and the insurance industry, she said.

Shepherd has come up the ranks trying medical negligence claims and other cases that raise “interesting or complex medical issues,” she said. Before founding Feldman Shepherd, she worked for a decade at Shrager McDaid Loftus Flum & Spivey.

In addition to defending her peers, PaTLA’s second female president said she wants to spend her year providing more support to women, minority and younger trial attorneys.

The 4,000-attorney organization – which represents plaintiff’s attorneys, as well as lawyers who represent both plaintiffs and defendants – also will continue its national and state legislative efforts.

This year’s agenda includes a push to get state legislation passed which is aimed at setting controls on HMO’s cost-cutting measures, she said.

DEFENDING LAWSUITS

Much of the public’s perception of plaintiffs’ lawyers has been shaped by the publicity waged by insurance companies and corporations with “almost unlimited resources,” Shepherd said.

“They choose to go on a campaign to pollute the minds of the public,” she said. “It’s pretty easy to pick on people who are dead, injured, maimed or disabled.”

She cites the widely publicized McDonalds’ coffee case, Liebek v. McDonald's, where a woman was awarded $2.7 million in punitive damages after spilling hot coffee she bought at the franchise in her lap.

Although there was a public outrage over the size of the verdict, less known was the fact that the plaintiff was found partially at fault in the incident, and that the award was substantially reduced in a subsequent settlement, Shepherd said.

Many people also don’t know that McDonald's had been made aware of previous spills that had injured customers and had not acted to reduce the temperature of coffee it served, she said.

Customers were routinely given coffee as much as 40 degrees hotter than it needed to be in a container, “which incidentally now has a warning on it,” she said.

The public is unaware of the checks and balances that exist in the legal system, Shepherd Said. Large injury verdicts are routinely covered by the press, but the public doesn’t hear when excessive verdicts are reduced, appealed, overturned or covered by insurance, she said.

The misconceptions do more than sully the reputation of trial lawyers – they affect attitudes and perceptions of potential jurors, she said.

“I care less about lawyers and whether lawyers are seen as bad guys,” she said. But “we want our clients to have a fair shake when their case goes to trial.”

To that end, on of PaTLA’s goals is to educate its attorneys on these issues so they can in turn educate the communities they live in, Shepherd said.

Another is to play a visible role in pushing for legislation that will better protect consumers, she said.

LEGISLATIVE EFFORTS

“In Pennsylvania things are relatively quiet at this moment,” Shepherd said concerning PaTLA’s legislative agenda.

One area the organization is watching are proposals afloat in Harrisburg that seek to set limits on HMO cost-control measures which block patients’ access to medical care, she said.

Such gate-keeping “has clearly had an impact on the provision of medical care,” she said.

A case in point, Shepherd said, is a claim she is handling which involves a child born with neonatal jaundice, a condition that is readily treatable if diagnosed, but debilitating if untreated, she said.

The mother gave birth at a time when hospitals routinely discharged mothers and their babies soon after birth without follow-up care, she said. This condition, which doesn’t become apparent until several days after birth, went undetected, she said.

Although it could have been completely cured through photo therapy, the child suffered blindness and will never develop beyond the level of a four-month-old, she said.

“There was an increase of children who fell through the cracks” because of early discharge policies, Shepherd said.

It took federal and state legislation to force hospitals to keep mothers and their babies longer, but there are other cost-cutting measures that need to be addressed, she said.

On the national level, PaTLA has joined with the American Trial Lawyers Association to fight proposed federal no-fault automobile insurance plans.

Such plans take away people’s choice to seek recompense from those who cause accidents and force them to seek compensation from their own insurance companies, she said.

The idea “flies in the face of the things we believe in America,” such as individual responsibility, she said.

In addition, no-fault plans haven’t succeeded in lowering auto insurance rates in states that have tried such schemes, she said.

“The states that have the lowest plans are the ones that have traditional tort plans,” she said.

EXPANDING APPEAL

Expanding PaTLA’s appeal to a younger, more diverse crowd is another of Shepherd’s goals for the year.

The group has added seats to its governing board of directors that are earmarked for minority candidates to try and diversify the group, she said.

She would like to add programs for young trial attorneys “who are really getting squeezed,” these days, with many of them underemployed, while others are overworked, she said.

Working mothers are another constituency she’d like to provide more support for, said Shepherd, whose four children range in ages from eight to 13.

“As a woman, as the mother of four kids, I know something about the challenges of combining a practice with family,” she said.

Leading PaTLA is a challenging job. But having served as the first female president of the Philadelphia Trial Lawyers Association in 1987, and having been active in both state and city groups during her entire professional practice, Shepherd said she feels prepared.

“It’s a weighty responsibility but something I have looked forward to.”