John Conyers

Mr. CONYERS

Mr. CONYERS. Mr. Chairman, I reserve a point of order on the amendment.

Mr. CONYERS. Mr. Chairman, I would hope we all support the American rule rather than one side, but let me point out to my colleagues that the whole notion that there is some superior method enforcing settlement of cases as opposed to having them tried is one that I find undermines the whole basis of loser pays. The fact of the matter is that of course everybody would love to settlement. But where the weight and the power is more on one side that on the other, settlement becomes a very unfair tool, and that is why we go to trial. The judges are trying to get the parties to settle, the parties themselves frequently want to settle, and now here comes the Congress, ``You will settle these cases or you will be penalized,'' and that is the underlying part of it that I cannot agree with.

Mr. CONYERS. Mr. Chairman, will the gentleman yield?

Mr. CONYERS. Mr. Chairman, will the gentleman yield?

Mr. CONYERS. I thank the gentleman once again. Mr. Chairman, I always like to hear the gentleman from Virginia [Mr. Goodlatte] tell us what he is trying to do because it is totally unvarnished and it is straight on the table. He is trying to end lawsuits for people who may not be able to afford them regardless of whether they have merit or not. Thankfully, he said it repeatedly during the course of this debate, and that is precisely my objection to this whole bill. A person can be injured and not have any money and have a totally meritorious lawsuit, and he should not be held accountable to pay for the attorneys' fees whether he wins or loses. The test is the preponderance of the evidence. That is 51 percent to 49 percent. The plaintiff is not a lawyer or a judge, he does not know what is happening. gentleman from Virginia [Mr. Goodlatte] keeps putting on the table that underscores more and more peoples' objections to this bill.

Mr. CONYERS. Mr. Chairman, will the gentleman yield?

Mr. CONYERS. Let me ask the gentleman one thing. When was the last time the gentleman heard a corporation look on television and see an ad for a plaintiff's law firm saying, ``No payment if we don't win''? Has the gentleman ever heard of a corporation going to a lawyer like that? I don't think so. Has the gentleman ever heard, before the time that we could use television--and he may have been a plaintiff's lawyer once-- did you not normally get people who could not afford a lawsuit?

Mr. CONYERS. Mr. Chairman, the gentleman from Ohio's amendment presents a number of important and potentially troubling issues. Most significant, it avoids even the semblance of evenhandedness by only limiting the fees plaintiff's attorneys could receive. What about the defendant counsel's fees? What about making this apply to plaintiff's attorneys as well as defense attorneys? The amendment creates a new set of controls on lawyers. It discards our Nation's long-cherished notion of freedom of contract, and instead imposes a set of Government-controlled fee schedules. I think this is 100 percent at odds with the free market beliefs of many of my friends on the other side of the aisle. The gentleman from Ohio's amendment would also create a potentially significant conflict of interest before the attorney and his client. It would also discourage settlements, because attorneys could not receive the fee that he or she had bargained for if the case settles. Perhaps the most serious problem is that the Hoke amendment would limit a plaintiff's right to pay his attorney while imposing no similar limitation on the defendant's right to pay his attorney. As a result, this perfecting amendment would specify that defense counsel are subject to the same limitations as are imposed on plaintiff's counsel. My perfecting amendment would specify that defense counsel are subject to the same limitations as are the plaintiff's counsel. Would the gentleman consider accepting the amendment?

Mr. CONYERS. Mr. Chairman, will the gentleman yield?

Mr. CONYERS. I yield to the gentleman from Ohio.

Mr. CONYERS. Exactly. That is the redeeming part of the whole thing, as far as I am concerned, but, you know, we are in a situation of relative improvement. What we are trying to do now is a lot different from cutting out some of your clients in earlier years who would not have been able to bring a suit unless you were going to have contingent fees or you took the case, or someone took the case, on the basis that it had merit. You could not look in the crystal ball and predict you would win or lose the suit. You could not tell what the jury was going to do. You did not know what the judge is going to do. You did not know if you were going to get shot into a different forum, all of which has a tremendous impact on the outcome of a case. And what we are doing now, what we are doing now is saying let us look at whether it is malicious, frivolous, or fraudulent, and with that, I can agree.

Mr. CONYERS. I yield to the gentleman from Pennsylvania.

Mr. CONYERS. Mr. Chairman, I move to strike the requisite number of words. the gentleman from California [Mr. Berman], and the reason that I join him now, even though I was not originally for McHale, is that it is what he is doing to the whole bill is what makes this important. We are finally debating what is, I think, at the center of the issue, what to do about frivolous, malicious, or fraudulent lawsuits, and this is the core of the issue, not whether the loser should pay through a wonderful gaming device that stacks it up against the leveraged defense. This is a much more salutary way for us to proceed, and if there is any problem, it is not the good faith of the plaintiffs bringing suit which, under the current bill, will be intimated through the gambling creed behind the current H.R. 988. What I want to see is a little person able to bring a suit in good faith that may not have the ability to pay, who may not have the ability to even pay his lawyer's fees at the end of the case, win or lose.

Mr. CONYERS. Well, there are contingent fees, but there are other ways that a defense counsel can be reimbursed as the gentleman knows. For example, when a case settles, there can be a bonus or some kind of contractual stipulation for increased remuneration.

Mr. CONYERS. For us to suggest we do not have a remedy for frivolity that is discovered within the first 90 days is to misread seriously the Federal Rules of Civil Procedure. We have such a rule. What I am saying to the gentleman is we do not need to worry about the first 90 days because most frivolously brought suits are discovered later than that. It is very hard to determine whether it would emerge.

Mr. CONYERS. Mr. Chairman, will the gentlewoman yield?

Mr. CONYERS. It just occurred to me as the gentleman asked what is the sweat if it is just redundant. We cannot make the rules for Federal court procedure in the United States redundant when we are now going outside of the Rules Enabling Act which has a process set up for making rules. The gentleman rushes to the floor with an idea that the DSG report got wrong, we are trying to help straighten it out, we point out to him that there is adequate coverage of this, but think of the problem with frivolous lawsuits. Frequently they are not discovered in the first weeks or months of the suit. It sometimes is determined in the course of the case as witnesses and evidence are produced that this is not a well-founded lawsuit. So having this motion intervene before summary judgment within 90 days is yet another reason for us to, as unexcitedly as we can, point out we do not need this amendment. (At the request of Mr. McHale and by unanimous consent, Mrs. Schroeder was allowed to proceed for 2 additional minutes.)

Mr. CONYERS. What the gentleman is doing is ignoring that we have a way for modifications to be worked out between the court and the Congress. It is called the Rules Enabling Act, and this is a very extraordinary provision that the gentleman is making. Very few Members get on the floor and move to directly amend the Federal Rules of Civil Procedure without so much as a hearing, discussion, witnesses or anything, explain to us DSG did not get it right, and we keep trying to point out to the gentleman that this problem that he is addressing is already covered.

Mr. CONYERS. I would just like to refer our friend from Pennsylvania to the Federal Rules of Civil Procedure, rule 11-1, by motion, a motion for sanctions under this rule can be made separately from other motions. The remedy that the gentleman seeks is already well ensconced in the rules.

Mr. CONYERS. Mr. Chairman, will the gentlewoman yield?

Mr. CONYERS. Mr. Chairman, I thank the gentleman for yielding. I just wanted to join in the correction of my friend, the gentleman from Pennsylvania, because a zero recovery from the plaintiff raises no question whatsoever about frivolity, because the test is of the evidence, which you could lose by a very small amount. It has nothing to do with frivolity.

Mr. CONYERS. Mr. Chairman, I want to commend the gentleman from California for bringing this point into even sharper focus than it has been brought before. However, just in case we think that there may be a bit of generosity in allowing the waiver of the requirement to pay fees and costs, in the report of the majority the Republicans say ``It is the intent of the committee that this standard,'' which is to pay costs, ``be interpreted to be an exceptionally high one, extending well beyond the relative wealth of the parties.'' In other words, do not give them an inch, boys. We are going to turn this rule on its head, and it does not matter if one is wealthy and one is poor; we were looking for a lot of other things to help you keep this standard exceptionally high. I think it is an indication of intent.

Mr. CONYERS. Mr. Chairman, will the gentleman yield?

Mr. CONYERS. Mr. Chairman, I demand a recorded vote.

Mr. CONYERS. I thank the gentleman for yielding. Mr. Chairman, I think we are finally getting to the bottom of this matter. really make it clear what he is after. First of all, he does not want any plaintiff to ever bring a lawsuit that he does not get charged for it, no matter what his economic circumstances. He said that. That is, the responsibility of going into court; namely, you got to afford to be able to go into court and if you cannot, you have no business bringing the lawsuit. How meritorious it might be? It does not matter. How important is it that the injury complained of in the lawsuit is the reason that the person is impecunious and not working? Irrelevant. How important is a case that has obvious redeeming merit to it? Beside the point. If the plaintiff cannot afford to pay his attorneys' fees, quote from the gentleman from Virginia, ``He should not be in court because he is not a responsible party.'' That is why I am against this whole bill. The argument of the gentleman from Virginia, his most recent remarks in attempting to repair the repair that he did to the original bill in committee, the Committee on the Judiciary, make it clear that this bill is an attack on the contingency fee, which you have a right to dislike or hate as you may feel. I happen to think that it happens to be an important way for people to get a case brought that may have merit. The contingency fee is a primary avenue for ordinary people, for poor people, to seek a remedy in court when they have been harmed and do not have any money, do not have a bank account, do not have stocks or bonds, do not have a house that they can put up as collateral to secure an attorney to prosecute their cause of action. This bill effectively destroys the contingency fee system because it says that the poor person or the middle class person will have to put their savings, their home, at risk to get to court, and if they do not get to court, they have got to involve themselves in this great new poker game in which their attorneys will now have to bid, negotiate, bid appropriately, as if they all know what the outcome of a case is going to be, which in my experience has been just the opposite has been true. So I think that even the attempts of the gentleman from Virginia at this late date to perfect the amendment lead me to oppose it, as I oppose the entire bill, and I hope that the Members of this House will reject this amendment.