Legal Fictions: What Are Lawyers Good For?

legal padI was reading an article in the New Republic about ageism in Silicon Valley.  Extreme ageism: It seems the 21st Century update on “Never trust anyone over 30” is  “Never hire anyone over 30.”

As I read, the instances of blatant age discrimination – “We don’t want anybody’s parents in here” – become obvious. If any lawyers out there are looking for a new gig, I’d say Silicon Valley would be ground zero for an anti-discrimination practice. In fact, if anyone can figure out a way to sue venture capitalists for discriminating against older people with great tech start up ideas – an admittedly difficult legal proposition – they’ll be able to retire rich.

Law may be a conservative profession, but lawyers are well-situated to make trouble. And that trouble often rebounds to the benefit of society.

For example, if you read the New Republic article, you’ll realize that people over 30 have some very good tech ideas coupled with enough experience to know that some things that sound cool won’t really work. (The example of an app to rate birth control pills was a good case in point.) And while I know Candy Crush has made somebody rich, silly phone games are just a passing fad. What we need in the tech world are things like more secure programs and apps that make doing real business easier. Grown up things.

Laws against age discrimination, and lawyers ready to push to enforce them, can help.

Look at car safety. One of the reasons we have good federal regulation of car safety by the National Highway Traffic Safety Administration is that lawyers were filing – and winning – product liability suits against manufacturers. They still are, but manufacturers who comply with federal safety standards have a good defense, because experts are deciding what safety features are required.

And cars are much safer than they used to be – which is good, because there are a lot more of them on the road than there used to be. In fact, traffic fatalities in the United States are at an all time low when measured in terms of fatalities per mile traveled – about 1.13 deaths per 100 million vehicle miles traveled.

Plaintiffs’ attorneys have come under a lot of attack of late. There are always a few outrageous examples of suits that should never have been brought, though some of those – like the McDonald’s coffee verdict (the plaintiff suffered third-degree burns from the coffee) – turn out to be inaccurate. As the scientists like to point out, data is not the plural of anecdote.

Historically, plaintiffs’ lawyers were people who couldn’t get jobs in the established law firms because they were the wrong race, ethnicity, religion, or – eventually – gender. They had to fight for the right to bring cases under a contingent fee arrangement – a necessary item, since most of their clients couldn’t afford to hire a lawyer to sue a doctor or car manufacturer. The fees were high, but the cases were – and are – risky.

However, I will admit that today some of the plaintiffs’ lawyers have become complacent, only taking on the obvious cases. After the recent revelations about the GM cars that would turn off and shut down even while driving at highway speeds – one that made me shudder because I recall renting some of the cars in question – a bunch of lawyers immediately sued.

But where were they ten years ago, when the problem first surfaced? I only saw one story about a lawyer – a small firm lawyer – who had been doggedly suing GM over the death of a young woman in one of those cars. It would be nice to see more lawyers pushing the limits on these cases and fewer jumping on the bandwagon once the problem is obvious.

So how does all this fit into fiction?

Well, for starters, if you’re writing stories set in the current world (as opposed to historicals, fantasy, or SF), you’ve got some good ideas here for lawyer characters. A mystery series built around an age discrimination lawyer in San Jose, perhaps? (I’m starting to think about that one.)

Maybe the protagonist in your romance is a plaintiffs’ lawyer suing GM. Or perhaps the characters in a literary story could be lawyers in a class action firm instead of working in publishing. Those of you who do historicals might want to consider writing something about the lawyers who invented plaintiffs’ law in the US. It would be nice to see a broader variety of lawyers show up in fiction.

In science fiction and fantasy, what I’d really like to see has less to do with the lawyers than with the benefits of the kind of litigation I’m talking about there – the ones where the people who are suing have been harmed by the actions of another (true of both discrimination and product liability actions).

In a lot of science fiction action-adventure and superhero-type fantasy, there’s a hell of a lot of collateral damage done before the hero beats the bad guys. This is particularly true of the movies, but it also happens in books. Madeleine Robins nailed this last year here on this blog.

I know everyone loves movies in which everything blows up – you should have seen Independence Day in Washington, D.C., and heard the cheers when the White House goes – but surely it’s time to move on from that.

It’s easy to love explosions as long as you’re identifying with the hero, but given that you’re more likely to be the bystander who gets blown up, it’s kind of nice to think that there might be law and lawyers on your side. Eventually.

And maybe if enough lawyers sue – or enough writers think about the fact that the aftermath of the hero’s victory will be decades of litigation – we’ll get more stories that don’t ignore the fate of everyone but the hero.



Legal Fictions: What Are Lawyers Good For? — 15 Comments

  1. One reason for the end of the witch craze was the increasing number of lawyers, because such cases were especially vulnerable to legal challenges to the evidence. How vulnerable? Countries that said witchcraft was not an “excepted crime” and evidence had to meet all the usual standards did not have witch crazes.

    There was a period in Scotland of — hmm — over a century in which one accused witch was acquitted. She had hired three lawyers.

    • Mary, that’s fascinating. I didn’t know that. Do you know of any books that address this? I’d like to do some research on it with an eye to doing something for the DC Bar Association magazine or some other publication for lawyers.

      • Hmm. IIRC, Witchcraft and Magic in Europe, Volume 5: The Eighteenth and Nineteenth Centuries

        Witches and Neighbors by Robin Briggs also has some, I think.

  2. I am writing a novel that turns totally around Victorian marriage law. Jesus, that’s one screwy set of regs. How I yearn for an expert to look at it! But the laws were so wackadoodle that it is tempting just to make stuff up.

  3. Miller & Lee’s recent Trade Secret has its final win through the earlier efforts of a lawyer setting up something that would be good on a certain number of planets, in certain legal systems…and they wait until the people who have blackmailed them and stolen from them are in that legal venue.

    I can personally attest that the tech industry is not hiring older workers, no matter what their qualifications. I thought it was because my skills for certain software were older, but a highly-qualified friend in her early 40s has been out over a year. She gets interviews, but then is not hired. It is hard to believe she is being evaluated on her impressive skills, and more likely to be age, sex, or weight.

  4. I have long wanted someone to do a comic-book series (or maybe just a series of stories) about a firm that handles damage in comic book universes–from legal claims, to the sort of cleanup crews that work at crime scenes and fires, to victim’s counseling and relocation services.

  5. The New York Times just had an article in their Sunday magazine about the difficulties Silicon Valley is having due to a generation gap between the young who want to work on the “sexy” things like games and the older people who want work on stuff like encryption and semiconductors. You’ve got it right there, Nancy. It was interesting to read about the origin of plaintiff’s lawyers – I had no idea of the history behind it.

    • I saw that article, Barbara and it gave me some ideas.

      And now you’ve got me wondering if anyone has written a history of plaintiffs’ lawyers in the US.