President Obama, Mr. Feinberg: How Much of BP's Billions Are Going to the Lawyers?

06/28/2010 12:08 pm ET | Updated May 25, 2011

Question: How Many Lawyers Does it Take to Screw in a Light Bulb?
Answer: How Many Can You Afford?

The Obama administration recently announced that BP has agreed to set aside $20 billion to pay economic damage claims to people harmed by the Gulf oil spill. Former chief of staff for Senator Ted Kennedy, Kenneth Feinberg's appointment instructions give no hint as to how much money the lawyers -- or for that matter he and the three person appeal panel -- will be paid from the escrowed account. Will Mr. Feinberg receive a mandate from the President on attorney's fees similar to the one he received to rein in excessive executive compensation?

Another Obama appointee, Rahm Emanuel, is attributed with the quote, "never let a serious crisis go to waste." Unfortunately, this usually refers to a political party taking advantage of a situation for its own benefit rather than for the public good. We believe in the concept of using a crisis to precipitate change, but it should be change that benefits the public. The recent Gulf oil spill and the Toyota unintended acceleration litigations provide a golden opportunity to make positive changes in the class action system.

What these two litigation extravaganzas have put on display is hundreds if not thousands of lawyers jumping over themselves to cash in on corporate wrongdoing. In the Toyota litigation, the court approved leadership roles for committees of lawyers co-leading this and co-liaisoning that -- a liaison committee with two lead counsel and seven additional law firms, a lead counsel committee with two lead counsel and six additional law firms, a core discovery committee of two lead liaison counsel, two lead counsel, and up to three additional law firms, plus three liaison counsel to coordinate with the discovery committee. These committees will then be doling out lucrative work assignments to literally hundreds of law firms! Potential litigation featherbedding is guaranteed to ensure that lawyers get as large a piece of the pie as the judge will tolerate. The pie may be quite large as the court noted that Toyota's 2009 revenue was $200 billion and its annual profit was $2.2 billion. Requiring attorneys to maintain time records provides no protection against lawyers' manipulating this cash cow to their own advantage. How can it be efficient to have hundreds of law firms, all seeing green at the prospect of taking down a multi-billion dollar corporation, involved in this action? How many of the best $750 to $900 an hour lawyers are needed to resolve the Toyota legal claims? The litigation surrounding the worsening Gulf oil spill will not be any better, and could be much worse, as 160 lawsuits have already been filed against BP.

Unfortunately, these legal spectacles, complete with billboard advertisements and automated telephone calls to potential victims, have become a kind of Super Bowl for lawyers. These lawsuits are now lawyer feeding frenzies with legal piranhas jockeying for coveted committee positions from which to dole out patronage, as the saying goes, to the many attorneys' mouths that need to be fed. Indeed one of the problems with class actions is that typically people who are the least injured (i.e. the lawyers) get a disproportionate share of the money, while those who are the most injured get less than they deserve.

Now we have the Gulf oil spill catastrophe. There is no question about guilt and BP has already said it is going to pay all legitimate damages claimed. How many lawyers are necessary? The answer, unfortunately, is whatever the judge allows. And judging by Toyota, the approach seems to be "the more, the merrier." Isn't there a better way to get money from a guilty defendant to injured claimants without siphoning off hundreds of millions, if not billions, of dollars to lawyers when the defendant has already surrendered?

There has to be a better way. There needs to be fewer lawyers and law firms involved in chasing these cases. There needs to be reduced hourly rates and lower percentages awarded in cases there the defendant acknowledges at the outset that they are guilty and has put $20 billion in escrow to make everyone whole. These cases should be about people who are the most injured getting the most money, but, unfortunately, the current class action system does the very opposite. There has to be a better way.

What was it that Shakespeare said about the lawyers?