A recent opinion out of Philadelphia rejects a recent attempt to restrict access to the courts by injured people. In Keystone Freigh Corp. v. Stricker, the Pennsylvania Court of Common Pleas rejected a corporation's attempt to penalize an injury law firm for suing on behalf of an injured client.

A recent court decision out of Philadelphia rejected an attempt by a big corporation to restrict access to the courts by injured people. In Keystone Freight Corp. v. Stricker, the Pennsylvania Court of Common Pleas rejected a corporation's attempt to penalize an injury law firm for suing on behalf of an injured client.

In the Keystone Freight case, the defendant was a law firm who had represented a man killed in an accident involving a commercial truck owned by the plaintiff, Keystone Freight Corp. The lawyers for the dead man brought a wrongful death and survival lawsuit against the trucking company. The question in the wrongful death case was whether the dead man had died as a result of a heart attack immediately prior to the commercial truck accident or as a result of the trauma of the accident.

In the underlying case, the lawyer representing the dead man's family had obtained an independent forensic examiner (the chief medical examiner in Delaware) and that independent forensic expert concluded that the dead man had died as a result of blunt force trauma in the accident. The trucking company used another forensic examiner who concluded that the dead man had died of natural causes (a heart attack) just prior to the accident. The case went to trial and a jury found in favor of the trucking company.

After the trial, the trucking company sued the lawyer who had represented the dead man for their attorney fees. Now, the general rule in the United States is that every one pays their own lawyer fees, win or lose. The idea is that we don't want our court system to be available only to people who can afford the risk of someone else's fees. But there are exceptions to the general rule. One of those exceptions is sometimes known as a Dragonetti action, which allows a defendant who wins a case to recover damages if it can be proved that the other side lacked probable cause for having sued in the first place and that the other side sued for an improper purpose.

In the Keystone Freight case, the Court threw the trucking company's case out of court. The Court explained that the a defendant isn't entitled to damages just because they won. Because there was no evidence that the lawyers for the dead man's family lacked probable cause (on the contrary, they had an independent expert) and because there was absolutely no evidence of an improper purpose, the trucking company could not possibly prevail on their Dragonetti claim, the Court said.

This sort of attack by big corporations on lawyers who represent injured people is designed to chill the enthusiasm of lawyers for injury cases by doubling the risk for injury lawyers. As Erie lawyers who routinely represent injured people on a contingent basis, we already assume the risk that we will work for months or years and get no payment in return if the case is not successful. Now, big corporations are trying to make us assume the risk of their fees, too.

Frankly, we're not necessarily opposed to assuming the risk of fees if the risk were fairly allocated. After all, the Erie lawyers at Purchase, George & Murphey, P.C. have an excellent record of success. But it's got to be a two way street. In other words, if we are to bear the risk of paying attorney fees when we lose then defendants and/or their lawyers ought to bear the risk of paying our fees when we win.