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Lingel v. Olbin8/29/2000
try" in its analysis. These concepts may be simply summarized as follows:
The most common kinds of impermissible maintenance involve financial assistance. Champerty is simply a specialized form of maintenance in which the person assisting another's litigation becomes an interested investor because of a promise by the assisted person to repay the investor with a share of any recovery. Barratry is adjudicative cheerleading--urging others, frequently, to quarrels and suits. All were thought to lead to a corruption of justice because of their tendency to encourage unwanted and unmeritorious litigation, inflated damages, suppressed evidence, and suborned perjury. Those, of course, are the same arguments that have traditionally been made against other aids to impecunious litigants, such as free legal services and the contingent fee. Charles W. Wolfram, Modern Legal Ethics ยง 8.13, at 489-90 (1986) (footnotes omitted).
Wolfram continued:
"Ancient court procedures and criminal laws directed at perjury, official corruption, and obstructing justice were seriously defective[, b]ut modern penal codes, and modern procedure and evidence law, contain sufficiently articulated devices to pursue those goals." Id. at 490.
I am not so sanguine as he that better protection is now afforded by the complex tangle of current laws and advanced litigation techniques and, indeed, Karp acknowledged the same problems.
Accordingly, I have no quarrel with preventing trafficking in personal injury or wrongful death causes of action, as I am persuaded that such could reasonably lead to the evils Wolfram described and Karp and the majority acknowledged, even though the concepts in today's legal structure may be a bit archaic. Therefore, I do not presently argue for eliminating this prohibition. What troubles me is the second part of the equation, that which Harleysville articulated, and which Brockman, Allstate, Knapp, and Karp have perpetuated. That is the prohibition against prejudgment agreements to share, for any reason, proceeds resulting from the successful prosecution of personal injury and wrongful death actions. If this concept was ever valid, it appears to have little, if any, currency and should be revisited and abandoned by our supreme court.
A paternalistic undercurrent runs through many of the cases espousing and repeating the non-assignability rule, as their results protect people in difficult circumstances by restricting their ability to assign all or a portion of a contingent asset, an unliquidated claim for damages. I understand and agree with the policy reasons these courts have relied on to prevent trafficking in unliquidated claims by strangers to those claims. Additionally, it is doubtless true that people enduring extreme personal tragedy, as were the Olbins here, whether because of the death of a loved one or because of a calamity causing them injury, are perhaps less able to manage their property and affairs than those not encumbered by similar suffering. This inability would, however, seem to me to apply equally to that person's capacity to manage all or any part of his or her assets, not just the proceeds of litigation resulting from the injury or death. Is it any less difficult to handle commercial transactions concerning one's job, home, automobile, family heirloom, beloved pet, securities, stamp collection, or any other possession or asset than it is the proceeds of a personal injury or wrongful death claim so as to require governmental protection precluding alienation of any portion of the latter? I think not, and suggest we must recognize that competent people who are otherwise free to borrow against or give away everything they own or to sel
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