As those of you who follow structured settlement issues, particularly the on going dog fight between plaintiff oriented and defense brokers, the name of Professor Erwin Chemerinsky should definitely ring a bell. Back in early 2006 there was a big stir when two professors issued opinion letters on the topic of plaintiff broker compensation and the duty of trial lawyers to know how their broker is paid, by whom they are being paid and then share this information with their client, the injured plaintiff.
While the larger of the two opinions, Professor Steven Saltzberg, which was presented as a letter to the Academy of Catastrophic Injury Attorneys, discussed at some length the issue of compensation disclosure and professional ethics, Professor Chemerinsky's opinion was more of a seal of good housekeeping approval on what Professor Saltzberg had presented. I will confess that while I appreciate the efforts and opinions of both of these fine professors, i've never understood the necessity of pushing their opinion out to trial lawyers as gospel. I would think it should be standard practice for virtually every plaintiff representative to make sure that their attorney is aware of whom they are working for, if they are splitting commissions with the defense and provide the option for the client to veto that arrangement if they deem it sufficiently conflicting with their goals and objectives. Basically it is commons sense, ask how your expert is being paid, by whom they are being paid and whether or not that arrangement presents a conflict of interest in how they are representing the client.
However, the reason i'm mentioning Professor Chemerinsky today is not to rehash his rather brief opinion letter, but instead to point out to my readers the rather obnoxious situation that is occurring at the University of California, Irvine, where Professor Chemerinsky was essentially prepared to be the Dean of the newest state Law School in California, but had the rugged pulled out from under him at the last moment as a result of the Professors public comments on the wisdom or lack there of the Bush Administrations Iraq policies. Then, after a mounting fire storm of critical commentary, the Chancellor Michael V. Drake, reversed his decision and proceeded to offer the law school position to Professor Chemerinsky.
Apparently the tactics of professional retribution for stepping out and expressing an opinion aren't limited solely to the property casualty markets that have worked for so long and so hard to prevent plaintiffs from having proper representation at the settlement table. Fortunately the pressure from bloggers and other commentators put sufficient pressure on the Regents at UC Irvine, so that now the State of California will be able to find out what kind of law school, faculty and lawyers Professor Chemerinsky can produce.He has already said he is hoping to recruit a broad base of legal experts to staff the faculty and won't have a litmus tests as to political learnings, which would be a refreshing thing to see in academia. The first lesson at the school should be that there is often a price to be paid for expressing your open and honest opinion instead of silently standing buy in order to further your professional goals by not rocking the boat. Thankfully the Professors supporters prevailed in this instance.
If I can extend the analogy back to the settlement world, we all know the price paid by those who chose the path of representing plaintiffs over the years, and the obstacles that we still face from time to time as we slowly overturn the archaic and counter productive practices that kept trial lawyers from engaging their own advisors, as well as the ethics of how those advisors are to be compensated. Hopefully, just as the Professor prevailed in his struggle to be the Dean at the UC Irvine law school, the settlement professionals engaged in opening our profession and having greater transparency in our compensation arrangements will prevail as well.