202
THE GREEN BAG
that abuses exist, and to be able to state clearly what they are. That compensation or pecuniary' assistance should be desired by and provided for workmen or those dependent upon them, where disability or death results from personal injury sustained whilst engaged in gaining a livelihood, is •natural and proper. That it should be pro vided for in such a way that the recipients may feel that they are legally entitled to it, and that it be not given in a way calcu lated to undermine the honesty or selfrespect of the injured, is certainly of primary importance. As the policy of our laws should be to build up self-respecting, honest, and prudent workmen, so the chief abuse must be found in the resort to methods which tend to rob the injured, and their sympathizing witnesses, generally fellowworkmen, of these virtues. Now what is it in our present methods which has this ten dency? A professional experience of over a quarter of a century, spent chiefly in the defense of personal injury cases, warrants me in saying that there is scarce a case of injury sustained by a workman out of which a skillful and unscrupulous lawyer cannot frame a theory and distort testimony, which will take his case to a jury; and second, that, on the other hand, in the very large majority of such cases, a perfectly candid, uncolored statement of all the pertinent facts would demonstrate to any fair-minded and competent lawyer absolute non-liabil ity on the part of the employer. Of course I refer to jurisdictions where the Remedial Acts above mentioned are not in force. I was asked recently for a report as to the results obtained in cases of this nature which I had tried for a certain Employers' Liability Insurance Company. I found, omitting the cases which I had settled as a matter of sound business policy, that out of ninety-two cases actually tried in the courts for this one company, eighty-five had been decided in favor of the employer and seven in favor of the injured workman (or
his dependents); and that of these, twentyfive had been taken to appellate courts before final adjudication was had, in which nineteen met reversals and six affirmances. These cases were of the most miscellaneous kind, injuries in mines, in factories, in the construction and demolition of buildings, in connection with passenger elevators, elec trical appliances, etc., and in jurisdictions where the abuses referred to are probably not less rife than in other jurisdictions. Such an experience warrants me in conclud ing that in the vast majority at least of the suits instituted to recover damages for per sonal injuries, there is no legal liability, and that the time of litigants, witnesses, courts, and juries is wasted, to say nothing of the costs and expense incident to such litiga tion, and of hope deferred that sickeneth the heart. I do not lose sight, in speaking of the non-liability for damages in this class of law cases, of the many meritorious claims for damages on account of injuries, which are settled without litigation. I am speak ing, as I have been asked to speak, of per sonal injury litigation. Is there then any method by which the unmeritorious cases can be weeded out with out the loss of time and expense of litiga tion, with the attendant corruption of claimants, witnesses, and others interested in the successful maintenance of such law suits? The vast majority of these cases are prosecuted by plaintiffs suing as paupers, by lawyers employed on a contingent fee basis. A worse combination to the end of securing justice can hardly be imaginedThe claimant has nothing to lose and every thing to gain. His self-respect is gone when he is forced to sign an affidavit repre senting himself as a friendless pauper. The lawyer's very livelihood is dependent on his making a case out of a class of cases notoriously barren of fruitful results. What should a court do upon an application in such a case for leave to sue as a poor person? I answer: If, upon examination, a prima facie case be disclosed, the application
