Call it tort reform, tort deform or whatever you want to call it, but the Iowa Supreme Court’s decision in Feld vs Borkowski, demonstrates why lawyers are gun shy about spending the lawyer’s money to litigate certain personal injury cases. Yes, the Plaintiffs' lawyers won in the High Court, but the law they are being sent down with isn't helping the injured.

Earlier this week on The Verdict, Lombardi Law Firm website, I covered a case recently decided by the Iowa Supreme Court titled BENJAMIN FELD ETAL V LUKE BORKOWSKI, see below for the links. The Verdict provided a menu of where you can find the important information about the case, but provided very little commentary. Here today let me tell you why, what the Plaintiffs' Attorneys are doing is amazing to me and why most seasoned plaintiff attorneys would if given the chance, turn down the opportunity to pursue this case.

First the plaintiffs’ attorneys are Gregory J. Siemann of Green, Siemann & Greteman, P.L.C., Carroll, and Dan Connell of Dan Connell, P.C., Storm Lake, for appellants. What they’re doing for this family is a credit to the profession. Taking on this case in the face of the case law, conservative juries and the conservative Court we face today is nothing short of amazing. How you successfully argued to send this one back to the jury is like climbing Cerro Aconcagua in South America.

But while I congratulate the plaintiff attorneys I warn the public not to read too much into what this means for most of you with difficult cases. Proving either intentional or reckless behavior at trial will not be easy and the likelihood of persuading a jury will be nothing short of a miracle. Juries today are cold hearted sitting with their arms crossed showing that a preponderance of the evidence means to them, beyond a reasonable doubt. The typical juror isn’t listening to the jury instructions and probably left their hearts at home. They view the plaintiff with suspicion and in their minds think they will never be sitting at counsel’s table and in the plaintiff’s chair. No siree, they think of the plaintiff as someone from another planet. At times we have to endure Judges making faces in plain view of the jury; faces that signal a like or a dislike of what is being presented.

What special interests groups have succeeded in doing is convincing people the sky is falling because of litigation and especially by injured people. The proponents of tort reform have used statistics for domestic violence, corporate lawsuits over malfeasance, debt collection suits and all other civil litigation suits to argue it’s all the fault of the injured guy sitting at counsel’s table in the plaintiff’s chair.

So when Benjamin Feld’s parents told Attorney Dan Connell the story about how their head injured son was hurt, in the back of his mind he had to be think, “And how much is this going to cost? And what are the chances of every winning this case?” If it wasn’t him, then his older more senior partners had to be saying, “Oh Danny Boy, tell me you didn’t take this case!”

Look at where ODB has been to date. The baseball game took place on June 2, 2005. The Iowa Supreme Court decided the case on October 22, 2010. Folks, assuming you can count that’s over five years and the lawyers haven’t earned one dime on fees, but have surely spent over $10,000.00 in litigation costs. Right now the firm’s return on investment is a negative 10,000 without counting the 1,000 plus hours of lawyer time it has put into the case. How many farmers are willing to plant crops for five years without getting paid? Is anyone willing to shell out money to buy seed corn and for five years not get to harvest the crop?

Do you know why lawyers do it, aside from hopefully getting paid some day. We do it because we have a kid as a client, with a brain injury that doesn't work and whose life has been one out after the next. We do it because this kids life is one big long game that he never wins and never will.

But realistically with today’s juries and law that keeps us in the dugout, most lawyers would have turned these parents away refusing to take the case because there is for the most part no return on investment. If that’s the kind of world you want, then that’s the kind of world you’ll get. And if your number is pulled and it's you now sitting at counsel’s table in the plaintiff’s chair, just remember how you voted and what you voted for. That finger you pointed in the direction of tort reform is now pointing squarely in your direction.

If the Feld’s don’t already realize it they have one hell of a law firm backing them up. Great firm; but that aside it's still a tough case to win.

• The Parties: BENJAMIN FELD ETAL V LUKE BORKOWSKI
• The Iowa Supreme Court’s decision: Docket No. 07-1333, Filed October 22, 2010. Also carried on Lombardi Law Firm. This is a 40 page decision, so it’s not light reading.
• The Iowa District Court docket: 02141  LACV036540
• Lombardi Law Firm site: Schwartz, Bublick and Sugarman. Feld vs Borkowski decision reprinted.