TEN MILLION dollars for legal fees and expenses may not seem such a bad deal. But to many plaintiffs' lawyers involved in the settlement of Vietnam War Agent Orange exposure claims, the amount -- awarded last week by a federal judge in New York -- was a severe disappointment.
To his great credit, and to the possible benefit of future claimants in similar lawsuits, Judge Jack B. Weinstein dispersed legal fees with scrupulous attention to the validity and reasonableness of expense claims and the contribution of each lawyer to the outcome of the settlement. As a result, most of the $180 million in the trust fund -- set up by chemical companies that produced Agent Orange -- will be used to help needy Vietnam veterans and their families rather than to compensate their many lawyers.
This desirable outcome has not been the norm in big tort cases. Lawyers representing clients on a contingency basis routinely take 30 to 50 percent of an award. Two-thirds of the $1 billion spent on asbestos exposure lawsuits has gone to lawyers and other intermediaries. It is not unreasonable, of course, to pay lawyers higher than normal fees for taking cases on a contingency basis. After all, they are taking the risk of not being paid at all if they lose. But as Judge Weinstein's meticulous review of the Agent Orange claims reveals, when a massive class-action settlement is in the offing, many lawyers are ready to jump on the gravy train.
Some lawyers were seeking to be reimbursed at a rate several times their normal billing rate -- excessive, Judge Weinstein felt, even for those lawyers who had carried competently the burden of the litigation. Others, the judge determined, had made little or no contribution to the case, submitted claims for reimbursement of lavish living expenses, kept suspiciously poor record of their expenses or charged their clients for time spent on extraneous matters.
If the chemical companies had had their way, the lawyers would not have been reimbursed at all. As Judge Weinstein himself observed, there is no solid evidence to support veterans' claims that Agent Orange exposure is responsible for the ailments that they and their offspring -- along with many other people in the general population -- have suffered. In that sense, the lawyers, rather than winning just compensation for their clients, have simply blackmailed the companies into making a huge settlement rather than absorbing the legal costs and bad publicity of further litigation.
But, as Judge Weinstein noted, the tort system has an important role to play in bringing attention to people whose situation gives them a special claim on public concern. While it is hard not to feel uneasy about the source of the $180 million trust fund, attention should now turn to how it will be distributed among veterans and their families. Difficult as that will be, Judge Weinstein's actions thus far suggest that he will ensure as fair a resolution of the matter as possible.