Access To Justice
By Joseph Cammarata, Esquire

Washington, D.C., Maryland, & Virginia

Beyond a reasonable doubt, all individuals must be guaranteed full, prompt access to justice. Nothing less is acceptable in a civilized society.

In 1994, I represented a young mother against the most powerful man in the world. In the case of Paula Jones v. William Jefferson Clinton, my client, Paula Jones, claimed that she was sexually propositioned by Bill Clinton, when he was Governor of Arkansas. I filed a lawsuit on her behalf against Mr. Clinton, when he was President of the United States. Mr. Clinton responded to the lawsuit claiming that he was immune from suit, while President, because he was too busy and therefore, Ms. Jones’ case had to be delayed until he left office. I urged the courts to reject the President’s claim of immunity from suit to allow my client’s case to be heard. The United States Supreme Court unanimously agreed with me that my client’s case had to go forward immediately so as to provide my client with her timely day in court. The Supreme Court acknowledged that memories fade, documents may be lost or destroyed, and that witnesses may die if a case is delayed, thereby upholding and reaffirming the bedrock principle of our judicial system, that “Justice delayed is Justice denied.”

However, what good is having the ability to have your day in Court if you cannot gain access to justice? Most individuals, untrained in law or court procedure, need an attorney to bring a meritorious claim on their behalf. This is especially true for those individuals who are injured, maimed or killed through no fault of their own, and they or their loved ones do not have the financial means to pay a trial lawyer an hourly rate regardless of the outcome of the litigation. On the other hand, the wrongdoer in such cases is usually represented by trial lawyers hired and paid for by large insurance companies with unlimited resources. The wrongdoer does not pay anything. Meanwhile, the innocent victim is left to hire a lawyer to take the case. So how can an individual afford to hire a lawyer to get justice against some person or entity with unlimited resources? The answer is the “contingent fee.” Trial lawyers who work on a “contingent fee basis” only get paid if successful in obtaining compensation for the client. This provides a viable method for an individual to gain access to the courts.

There are those who want to limit our access to the courts by eliminating or limiting contingent fees. They argue that contingent fees promote frivolous lawsuits. However, bringing a frivolous lawsuit is bad business for a trial lawyer, especially on a contingent fee basis. A typical contingent fee agreement not only requires a lawyer to wait to get paid, if at all, but also requires a lawyer to pay the expenses of the case up front and hope to get reimbursed at the end of the case. It is hard to imagine a lawyer trying to make a living by spending valuable time and money to pursue frivolous lawsuits that are likely to be thrown out of court and to result in the lawyer being punished by the court. In reality, the only effect of eliminating or limiting contingent fees will be to eliminate or limit our access to justice by limiting our ability to hire a lawyer. This should not be tolerated.

However, what good is having access to the courts, if an individual’s ability to obtain full and complete justice, when one gets there, is restricted?

Our modern day jury system evolved after a long history of being beholden to kings, religious leaders, and politicians for the resolution of disputes. Our right to a trial by jury is guaranteed by our Constitution and State law. A jury is made up of citizens who are called upon to resolve disputes in society, such as those situations where an individual is accused by the Government of criminal wrongdoing, or accused by one individual of injuring another individual. Each side to the dispute is given a full and fair opportunity to present their claim, or defend against one, with the jury making the ultimate determination as to who is right and who is wrong based on all the facts presented. The jury system relies on the common man exercising common sense; a right which Thomas Jefferson believed to be America’s greatest, and defining, right.

There are those who want to limit the common man’s exercise of common sense. For example, when an innocent victim seeks compensation for injuries due to the wrongdoing of another, there are those who, in a “one size fits all” philosophy, seek to arbitrarily limit or cap the amount of non-economic damages (for payment of other than medical expenses or lost wages) available to the injured innocent individual, regardless of the circumstances unique to each case. Those people believe that right and wrong is best determined by politicians or by legislative edict, rather than by real people, a jury, which we have historically trusted to make fair decisions. Those people believe that there exists a “litigation lottery,” and that insurance premiums must be reduced, and that capping damages is the only means to fix these “problems.”

I doubt that any individual who is severely injured or paralyzed, or whose family loses a parent, spouse or child due to someone else’s negligence believes they have won the lottery. In fact, the Department of Justice, Bureau of Justice Statistics reported that the median payout for all personal injury cases dropped 56.3% between 1992 and 2001 to $28,000.

Caps on non-economic damages punish those victims who have a diminished quality of life, such as a child paralyzed for life, a brain damaged baby, a grandmother abused in a nursing home, an individual who loses a limb or sight, or the family of a stay-at-home mom or child killed by someone’s negligence.

The non-economic aspects of life are real, and reflect the human losses suffered by real victims in real pain.

Further, studies show that in states with caps on damages, insurance premiums continued to increase in real dollars and on a percentage basis more so than in states without caps. Also insurance company representatives are on record admitting that caps do not, and will not, lower insurance premiums. If insurance rates are an issue, why not enact insurance reform and pass legislation to require an insurance company to justify rate hikes, just like an injured victim must present his/her case to a jury?

We can all agree that if someone causes harm to another, the wrongdoer must be held accountable. Accountability requires that the wrongdoer be required to pay for all damages caused by the wrongdoing.

To arbitrarily limit or cap the amount of damages available to an innocent victim, provides less than full accountability and, in turn, victimizes the victim. This only serves to undermine our system of justice which operates on a belief and pledge of allegiance to a Nation that provides “justice for all.”

If undermined, our system of justice will no longer be viewed as providing individuals with a forum where truth can be tried, a forum where disputes can be resolved without resorting to violence, and a forum where justice can be obtained. A civilized society requires redress of grievances in a civilized framework within a system perceived as fair.

Beyond a reasonable doubt, beyond all doubt, we must act to protect our right to full, prompt access to justice.

Contact trial lawyer Joseph Cammarata by email or call 202-659-8600.

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