ATLA, Lincoln and Tort Reform
at least
bar assoc.
The ATLA Press Room prepared a comprehensive (pre)response to the attack on Trial Lawyers at the Republican National Convention, under the rubric The Party of Lincoln Smears Trial Lawyers; What Would Lincoln Say?. Overlawyered.com’s Walter Olson, Evan Schaeffer at Legal Underground, and Jim Copland of Point of Law have all talked about the convention and tort reform, as did Slate’s William Saletan (taking on Dr. Frist). As I mentioned at Evan’s place, I believe the blanket “trial lawyer” slurs at the RNC were just silly. However, if the ATLA folk wonder what Lincoln really would think about today’s “trial lawyers,” I suggest they get a feel for Lincoln the lawyer from the materials in our post on his birthday this year. Also, close attention should be given to Lawyer Lincoln Was a Bargain, where we noted:
Our Feb. 12 post A Lincolnesque Law Practice? has been very warmly received, suggesting a craving for positive lawyer role models. Today, a savvy visitor was kind enough to share the result he received when converting into today’s dollars the highest fee mentioned in the materials quoted in our posting — the $500 fee in the 1838 murder case of People v. Truett, becomes $9434 in 2003 dollars.
Using our own arithmetic wizardry, we estimate that Abe’s $5 fees for many client matters would have been about $95 now. And, his annual income while riding the circuit, about $2500, would be about $47,000 now Those numbers should humble a lot of modern lawyers, and hopefully make them reflect upon what the search for ever-higher income has done to the practice of law in America.
harvest moon–
digging in the teacup
for sake money
a money-making
temple…
the peonies in bloom
…………………………. by Kobayashi Issa, translated by David G. Lanoue
update (Oct. 19, 2004): Evan Schaeffer gives this topic the Nft(L)U Illinois treatment here. How does he find the time?
I’m not biting. The bigger the time span the less accurate an inflation-adjusted measure of dollars is. It is simply not possible to take one 1838 dollar, multiply it by the simple CPI factor from 1838 to today, and expect that to be a precise measurement.
The proof: your reader’s calculation estimates that Lincoln’s annual income was about $47,000. Yet Lincoln was one of the top litigators in Illinois, who often represented large, national railroad corporations and appeared frequently before the Illinois Supreme Court. Is it reasonable to expect the #1 corporate and appellate lawyer in Chicago to be earning only $47,000, which is a mere fraction of the salary of most of the corporate executives he dealt with? Hardly.
Comment by UCL — September 4, 2004 @ 8:28 pm
UCL, UCL, “Proof?!” You are doing a lot of ass-u-me-ing (and should make a fine judge: starting at the result you want and then marshalling your “evidence” and arguments).
Have you ever seen a history of Lincoln that suggested he lived like a Fat Cat Lawyer? (He and Mary were definitely high-living slaves to fashion!) My very point is that he was (1) a successful lawyer and (2) a successful politician, without charging exhorbitant fees, becoming rich or living like the elite. (I don’t think he ever lived in Chicago — his professional life was in Springfield mostly).
Instead of enjoying a lazy evening, I did a little research for your edification and found the following facts about Lincoln, which suggest that he lived a modest life, not a lavish one. I added a few comments, but please draw your own conclusions about what Mr. Lincoln might think of the pinky-ring or private jet crowd (not to mention the “at least a third” bar association).
Comment by David Giacalone — September 4, 2004 @ 9:47 pm
In response to the post you highlighted, I already commented as follows (sorry to repost it here, but I’m lazy . . and once again, for all you budding Lincoln scholars, I recommend the David Herbert Donald book . . . I concur that Lincoln lived modestly, although as stated in the following, he wasn’t didn’t shy away from making money)–
David: As you know, I was one of the fans of your Lincoln post. Here’s an anecdote about one of Lincoln’s largest fees from “Lincoln” by David Herbert Donald. After Lincoln won a major case for the Illinois Central Railroad, he billed the railroad $2,000. The railroad scoffed at the bill, saying it was “as much as Daniel Webster himself would have charged.” Lincoln then asked some of his fellow attorneys what they would have charged, and he submitted a revised bill for $5,000. Again the railroad refused to pay, so Lincoln sued.
Donald continues: “At the hearing before David Davis in McLean County, Lincoln argued his own case, pointing out that his fee was not unreasonable. Had the decision gone the other way, the railroad company would have had to pay out half a million dollars a year in local taxes. The court promptly returned a verdict in his favor … The action did not interrupt his amicable relationship with the Illinois Central Railroad, which he continued to represent in numerous subsequent cases.”
That fee is about $104,166 in today’s dollars — not even close to being “tobacco money,” as my friends call it, so your points about modern lawyers are well taken. Judge David Davis was later appointed by Lincoln to the U.S. Supreme Court and served for fifteen years.
And a final, unrelated thought: If Lincoln had been practicing today just to the South in Madison County, Illinois, the newspapers would have pointed to Davis’s Supreme Court appointment as a quid pro quo for the fee decision. And maybe the newspapers *did* say that back then — when it comes to lawyers and politics, things haven’t changed all that much.
Comment by Evan — September 4, 2004 @ 11:15 pm
David, a few months ago I finished the most detailed biography of Lincoln I know to exist, which included the author’s meticulous research on Lincoln’s law practice. Though it’s not sitting in front of me for you to cite from at the moment, that is my source of information.
I’m aware he did not practice in Chicago. Chicago is not a perfect analogy but I used it because in 1838, Springfield was more significant a city than it is today, and Lincoln in 1838 Springfield is not the equivalent of a successful corporate lawyer in “2004 Springfield”. In Springfield, his small law firm was officed in a downtown building in one of the Midwest’s premier pieces of commercial real estate. The $1500 home you refer to was, also, about as good as it got in Springfield in that era.
Rumors of Lincoln’s modest adult lifestyle are much exaggerated. But the real irony of your admonishment of me for using unfounded assumptions is that the financial theory you use to extrapolate 1838 dollars into 2003 dollars is based on a completely flawed assumption that the CPI accurately measures inflation for a 165-year time span.
Comment by UCL — September 4, 2004 @ 11:28 pm
Evan, thanks for reminding me of your prior post and being kind enough to repost it, for the convenience of visitors and editors. While reading it, I had this thought:
Thank you for helping me understand even better the difference between Lawyer Lincoln and many of today’s lawyers.
Comment by David Giacalone — September 4, 2004 @ 11:41 pm
Do you have a better method of determining today’s dollars, UCL? Since we’re talking lifestyle enjoyed by Mr. Lincoln, is the Consumer Price Index at least a teeny bit relevant? It would have to be off by a factor of 10, 20 or even 40, to have Abe doing as well as a BigLaw Chicago partner today.
If we had to prove today’s dollar value at court, I’d be very interested in seeing and testing your improved method.
Comment by David Giacalone — September 4, 2004 @ 11:49 pm
The CPI is relevant; it’s just not precise. The fudge factor could be enough to change that $47,000 figure into $94,000 or even more.
Just one example for you. You state his house cost him $1500. Your multiplying factor for his legal fees appears to be about 19 ($95 = $5, $9434 = $500). Through that logic, buying one of the nicest available homes in a significantly-sized city, that is also a state capital, today, should cost about $28,500.
You do the math. :)
Comment by UCL — September 5, 2004 @ 3:21 pm
$94,000? That’s not even starting associate pay in Chicago these days, much less successful partner-rainmaker-politician.
Home prices are so varied across the nation now, much less between now and 150 years ago, that I don’t think we can make very helpful comparisons. More telling for me is the fact that the Lincolns moved to a three-room house six years after Abe started practicing law, when he also had income as a State legislator.
The comparison of Lincoln’s $5000 fee to the railroad with what might be assessed now by successful lawyers (see the discussion above between Evan and me) is also more on point than real estate comparisons, given our lack of comparables on housing costs.
Comment by David Giacalone — September 5, 2004 @ 7:46 pm
At the risk of beating the dead horse even further… what makes you think housing costs can’t be fairly compared while legal fees can be?
Comment by UCL — September 6, 2004 @ 1:52 am
my dear ucl,
well, have you stopped beating your horse yet? when were you last sanctioned for excessive interrogatories, frivolous depositions, or unzealous research? more important, aren’t you aware that the editor of this weblog is retired and disabled and not able — without dire consequences to his health — to respond in depth to every whimsical question that pops into your head? you are allowed to think things through on your own!
that being said, it’s always nice to have U visit and comment.
you have left me waaaaay too tired to make capital letters, so please bear with me. the price of homes, it seems to me, varies far more widely across the nation and across time than do legal fees. for example (and all the numbers are necessarily approximate), a house in a fancy suburb or elegant historic district in the San Francisco or Boston area can cost 10 or 20 times as much as an analgous/identical house in a non-trendy city like Albany, NY. (despite offering the same housing comforts and social status). Nonetheless, the price of a divorce using the top divorce lawyers in those different cities are likely to differ, if at all, by a factor of 2 or 3.
a personal anecdote: when i moved from DC to Schenectady, i purchased a wonderful 150-year old home in a beautiful historic district (only one-half mile from all the courts) that would have easily cost ten times as much in Georgetown. A decade later, the houses in Georgetown appreciated 100 to 200 percent or more, while my neighborhood and house depreciated almost 50 percent, and “prime” law office buildings also declined steeply in price. During that period, legal fees in this town went up, not down. (which reminds me, real estate seems to react far more like a real marketplace, whereas legal fees are, to my mind, far less related to supply and demand, or the relative skill level of lawyers compared to other professions or to their clientele – e.g., fees rise despite a glut of lawyers, and despite the fact that lawyers are no longer a lot more educated than the typical client)
feel free to respond, ucl, but don’t be insulted if this worn out old man simply observes rather than responds.
Comment by David Giacalone — September 6, 2004 @ 11:54 am
David: I guess I should tell you more often that I would not be disagreeing with you so much if I did not thoroughly enjoy your blog. The issues you raise even in your brief one-liners are thought-provoking and interesting ones about our profession, and they are issues which merit discussion and debate by the members of this profession. Your observations are interesting. That’s YOUR fault, not mine. :)
For God’s sake don’t endanger your health responding to my dissents, but at the same time keep in mind that my stream of comments are directly proportional to the level of interest I have in what you have to say. That said, I’ll leave this dead horse alone for now.
Comment by UCL — September 8, 2004 @ 3:32 pm