So, the New York Times Sunday Magazine published a story about the first major lawsuit against the National Football League on behalf of former players who suffered various types of brain damage years before such afflictions might otherwise show up in the general populace, and it embodied almost everything that was noble, not so noble, and ultimately frustrating about the practice of law in the U.S. today.
There are 400,000 more lawyers in the United States than there are doctors, so it’s a relief that this Super Bowl of Lawsuits is finally happening. The story begins like something out of an old Hollywood movie: a young attorney working at a small firm who just wants to carve out a nice little uncontroversiall practice for himself so he can make a decent living and provide for his family basically has this case thrust upon him when he isn’t looking. Jason Luckasevic, the lawyer, had an older brother in the midst of a medical residency who was working under a Nigerian forensic pathologist who happened to perform autopsies on ex-pro football players and found a startling amount of goo-for-brains within, and when he reported his findings in public, was smeared and attacked by the NFL. Luckasevic got involved because he didn’t think the attacks on the pathologist were fair. On his own, Luckasevic convinced 75 retired football “Davids,” suffering from memory loss, depression, persistent and intense headaches, violent mood swings, and Lou Gehrig’s Disease to file a joint suit against “Goliath”: the NFL.
And so the “noble” portion of our tale, lone attorney fighting the good fight to see justice done, comes to a close.
Once Luckasevic filed his suit, many more aggressive and prestigious attorneys joined the class action, bringing along “thousands” of players, and, according to the Times, tried to muscle Luckasevic to the sidelines, where he mostly remained.
The Times notes that the proposed settlement is “almost universally perceived as a victory for the league.” The non-profit NFL earns $9 billion in revenue annually, but its payouts are expected to total $1 billion, paid out over decades. And even though the league finally admitted that some 28 percent of eligible players suffered damages that would be covered under the agreement, and that it had covered up these deleterious findings for years, the settlement sidesteps the issue.
The incentive for settling the case is that it gets the plaintiffs money soon rather than what might otherwise take years if the case went to trial and through the appeals process.
There’s also the matter of $112 million set aside for the lawyers, who otherwise (working on contingency) wouldn’t see a payday for quite some time, if ever. Contingency arrangements obviously have benefits, allowing aggrieved parties to file suits they otherwise couldn’t afford, and incentivize attorneys only to take cases that they believe are winnable, but when large sums of settlement money are dangled in front of attorneys, it raises questions about judicial processes that encourage legal professionals to settle for the short-term less-than-ideal resolution at the possible expense of the long-term interests of their clients.
Thus giant entities like the NFL, knowing that the other side knows it can draw the costly proceedings out for years, can admit culpability but still offer “bird in the hand”-sized settlements and “touch down” relatively unscathed.