The Lawyer As Ambulance Chaser
Few insults draw the ire of personal injury lawyers like “ambulance chaser.” Unlike “trial lawyer,” which business interests have been trying to turn into a slur for years — despite the fact that the term means little to non-lawyers and, among lawyers, can be a compliment for both plaintiff’s and defendant’s counsel — “ambulance chaser” is unambiguously derogatory, implying a mixture of greed, desperation, and exploitation.
The term is doubly insulting because it strikes at the part of our work that is the most emotionally challenging and is the source of our greatest pride: the fact that we are trying to help injured people. In the last week I spoke with a woman who cannot work or even stand anymore because of the pain from titanium clips left inside her by an incompetent physician, and I prepared discovery in a case so tragic that, in every conversation — whether with a doctor, an expert, or even the defense lawyers — there will be a moment of stunned silence in which empathy instinctively forces us to consider that, every day, we do the same thing that family did, and that we have been spared their fate by sheer luck. Mention the word “ambulance,” and I will think of how, inside many ambulances, there is a very hurt person with a sad story that could or should have been prevented, a person that may end up in my office and on my mind every day for years to come. Like it’s my fault that Ethicon makes defective hernia mesh and Bayer’s Essure is a disaster?
Yet, as an amateur etymologist, the term bothers me for another reason: there’s no clear definition. Ask Wikipedia, and it equates “ambulance chasing” with barratry (“barratry can refer to a lawyer seeking clients at a disaster site, which is also known as ambulance chasing”), but there are two problems with that. First, barratry is a notoriously difficult term to define — just ask the Supreme Court, which has been trying for nearly two centuries to define it in the maritime context, see Patapsco Ins. Co. v. Coulter, 28 U.S. 222 (1830)(“It cannot be denied, that what with adjudged cases and elementary opinions, this doctrine has got into a great deal of confusion.”) — and, second, the legal usage of “barratry” usually refers to stirring up groundless litigation.
It certainly would be wrong for a lawyer to chase an ambulance, peddle their services, and then convince the injured person to file a baseless suit, but is that really what is meant by the term “ambulance chaser?” Or does it also refer to lawyers who improperly solicit clients with meritorious cases?
The oldest reference I can find to “ambulance chasers” (or “ambulance chasing”) is this address by J.E. McDonald, President of the South Carolina Bar Association, in 1905:
In discussing the subject of personal solicitation of business, Professor [George] Warvelle concedes that the ethical idea involved in solicitation is not so much a regard for ancient conventional rules as a proper deference to present public opinion concerning the dignity of the legal profession When a solicitation can be made without a loss of professional standing, then it is proper when it cannot then there should be no solicitation. But of the offensive kind of solicitation to which I have directed your attention, he says “The subject of solicitation has been considered from the point of view of the respectable practitioner who hesitates between self interest and professional decorum who seeks practice but is yet observant of the proprieties.
There are, however, some very objectionable features of solicitation to be seen in the cities where a horde of so called lawyers find a regular and profitable employment in following accidents and soliciting retainers from the injured. This is solicitation in its most degrading form and a vile prostitution of the advocate’s calling. Yet the ambulance chaser has become a recognized feature of city life. He haunts the hospitals and visits the homes of the afflicted officiously intruding his presence and persistently offering his services on the basis of a contingent fee. This is not law practice it is simply a form of legalized piracy. No man can adopt such a course and yet retain the respect of his professional brethren, for while the person so doing violates no rule of law he is guilty of a gross infraction of one of the best known and longest established ethical precepts of the Bar. Unfortunately, this is a practice that cannot be stopped by legal methods. The recourse is to the moral sense of the Bar; if this sense is weak no relief may be expected and so long as complacent juries shall freely give away other people’s money and this class of practitioners continue to receive the favorable consideration of Bench and Bar so long will the practice itself continue.”
Unfortunately, the persuasive force of Professor Warvelle’s usage of the term as applying to all lawyers who directly solicit injured clients — both those with meritorious cases and those with frivolous cases — is lessened by the indisputable fact, as demonstrated by the above, that he is a callous, insufferable jerk. If you start with the premise that “complacent juries shall freely give away other people’s money,” then, well, you’re going to have a problem with every injured person and every lawyer who represents them. (I bet Warvelle didn’t like Upton Sinclair’s The Jungle when it was published the next year.)
In 1913, the Governor of Tennessee, Ben Hooper (whose inspiring story has found new fame this millenium in the inaccurate Who’s Your Daddy? chainmail) delivered this impassioned plea to the legislature to adopt a Workers’ Compensation law:
I believe that the time has come for Tennessee to take up the consideration of a Workmen’s Compensation Law. Some of our sister States have set us good examples along this line. The multiplication and expansion of hazardous employments in our State, the greatly increased number of accidents to employees, the consequent large number of personal injury suits in the courts, and the great expense, delay, ill-feeling and injustice resulting from such litigation all combine to emphasize the unwisdom of longer deferring the repeal of the present system, and the substitution therefore of one more just and economical for both employer and employee. Under present conditions the injured laboring man is ground between the upper and nether millstone. On the one hand, he falls into the clutches of the ambulance chasing pettifogger, or, on the other, he is browbeaten, deceived, and defrauded by the claim agents and attorneys of his employer. If he is disabled from work, the prospects of a long drawnout lawsuit and the certain hunger and suffering of himself and family constrain him to accept an unfair compromise. Whether the claim is adjusted with or without litigation, his recovery is largely reduced by attorneys fees and other expenses. If the injury results in his death, these hardships fall directly upon those dependent upon him.
Notably, Ben Hooper was himself a lawyer, and, if you read the story above, the quintessential underdog. His sympathy for the injured worker is palpable, and he refers to even meritorious cases falling to “ambulance chasers.” The addition of the “pettifogger” insult, which Languagehat says is “one who on a small scale practises the dishonourable devices for gain popularly attributed to great financiers,” confirms, at least to me, that the concern about ambulance chasing is more about the means of solicitation than the drumming up of frivolous lawsuits for modest gain. No “great financier” or Wall Street banker (then or today) would drum up a tiny fraud; instead, they would charge right into a large fraud without a hint of moral or ethical hesitation.
Which brings me to an unfortunate ambulance chasing case discussed by Seth Leventhal. There, lawyers are fighting over representation of a woman seriously injured in a motorcycle accident — with one lawyer, who represents the driver of the motorcycle pushing to also represent the passenger of the motorcycle, even though the passenger likely has a claim against the driver for contributing to the accident. A key component is the extent of the woman’s traumatic brain injuries:
One of the many strange aspects of this pending mess of a lawsuit (the exact number of different lawsuits is hard to tally) is the bind of a personal injury plaintiff’s lawyer hiring a physician to opine that the accident victim has suffered a traumatic brain injury but not so severe as to render her incompetent to pick her own lawyer.
Making matters worse, the Complaint also alleges that, though “uninvited by her family and/or hospital staff and despite his being ethically barred from representing [the woman] due to his already representing [the man driving the motorcycle], [the lawyer] was caught soliciting [the woman’s] representation.”
Now that’s ambulance chasing. The real ambulance chasers are not trial lawyers in general, or personal injury lawyers, or even personal injury lawyers that happen to advertise; there’s nothing wrong, unethical, or improper about marketing legal services, about making it known to the public your existence and the nature of what you do. The bulk of their work is nothing more than helping injured people obtain just and fair compensation. Anyone who calls that ambulance chasing is pushing an political agenda.
The real ambulance chasers are the lawyers who see terrible stories in the headlines and either send private investigators or drive out there themselves to solicit, sometimes browbeat, the client into representation by hook or by crook, making guarantees, offering bribes, et cetera. It’s a small fraction of the personal injury world, but it exists: the case Leventhal references alleges a lawyer literally barged into the brain-damaged woman’s hospital room within days of the accident and then intimidated his way into representing the woman, despite already representing a likely co-defendant.
But here’s the ugly truth: there’s nothing lawyers can do about it, short of filing the same type of “tortious interference” suit the lawyer forced out of the motorcycle case filed, a lawsuit that will cost more in time and money than it will recover. All of the real ambulance chasing that decent lawyers see, like when unscrupulous lawyers show up at a home that has just lost one of its residents, they must keep confidential as part of their obligations to the potential or actual client. Even if they thought it would accomplish anything to file a complaint with the disciplinary board — often a dubious proposition — it is not their decision whether or not to report an unscrupulous lawyer to the bar for improperly soliciting clients or for making promises they can’t keep. That’s the client’s decision, not the lawyer’s.
And so we come back to that insufferable jerk, Professor Warvelle, who is likely right about the real ambulance chasing: “unfortunately, this is a practice that cannot be stopped by legal methods. The recourse is to the moral sense of the Bar.”