Winders v. Illinois Central Railroad Co. , 177 Minn. 1 ( 1929 )

I agree that the courts of Minnesota cannot refuse to entertain this case for absence of jurisdiction and therefore that there should be no dismissal. But the case presents another problem, somewhat ignored by the opinion, in respect to which I cannot remain silent.

That the case was solicited and procured at Paducah, Kentucky, by a lay employe of plaintiff's attorneys regularly engaged for that purpose, is demonstrated if the record be read in the light of common knowledge. The courts of Minnesota are trying every year a mysteriously large number of foreign personal injury cases. The condition has been noted by the Supreme Court of the United States. See marginal note, Davis v. Farmers Co-op. Equity Co. 262 U.S. 312, 43 S.Ct. 556,67 L. ed. 996. When it is considered that the cost to the county of one such trial frequently amounts to several thousand dollars, it is easily appreciated that our taxpayers are annually paying an enormous bill properly chargeable to other states for the conduct of their litigation. Thus far, most of such cases have been against railways, but there has been some evidence of late that foreign automobile personal injury cases are beginning to come. It would be surprising if they did not under present conditions.

The cost to Minnesota taxpayers, while interesting and relevant, is not for present purposes the important thing. Entirely aside from that, imported cases present features which put them in a class by themselves. It costs money to get them. Competition is keen. The cost of procuring the business has been going up while the fees have remained stationary or, if anything, have gone down. It is a common practice for the attorneys procuring a case to finance their client to a greater or less degree pending the litigation. In this case the inference is quite clear that an initial advance of $500 to plaintiff by his attorneys had a very persuasive effect in procuring the contract with him. Such practices result in a very substantial cash investment in the case by the attorneys. That element, necessarily present, possibly explains why many of these imported cases are "made" by perjury. See for example Jackson v. C. G. W. R. Co. 165 Minn. 58, 205 N.W. 689. Some of them are meritorious. Neither the vice nor the virtue of them is a monopoly of either side. The point is that the expense of getting the case and holding it results in an unusual temptation to repair its weak points by spurious evidence.

Furthermore, that these cases, whatever their merits, evidence the existence of open and habitual champerty on a large scale is of course self-evident. The cases are brought here by unprofessional conduct and practices which are fast making the legal profession and the courts the subject of widespread criticism. To investigate and adopt any proper methods for the purpose of preventing such practices is within the jurisdiction of the district courts and of this court. They may and in my judgment should now take measures to prevent the further obstruction of Minnesota litigation and the administration of justice in this state through the clogging of our calendars with "champertous cases brought under contracts procured by 'ambulance chasers.' " State ex rel. Reynolds v. Circuit Court, 193 Wis. 132, 142, 214 N.W. 396. "Courts possess the inherent power to do whatever may be necessary to purge their calendars of champertous cases and to discipline members of their bars." Rubin v. State, 194 Wis. 207, 214,216 N.W. 513.

In my opinion, slowly come to and reluctantly expressed (the delay in the decision of this case is chargeable solely to myself and my hesitancy in expressing the opinion which I now feel compelled to express) the courts of Minnesota should no longer delay in following the example set us by our brethren of Wisconsin and put on foot measures which will free our calendars of the intolerable burden of improperly imported litigation. Unless something is done to stop it, it is going to increase rather than decrease. One way of discouraging it would be for the judges before whom the cases are tried to feel freer to grant new trials as a matter of discretion wherever the verdict seems to them to follow testimony which is plainly false. Of course that rule, if applied, should work both ways, as much against as for the defense. It is the too frequent resort to perjury and the dulling effect upon moral sensibilities of familiarity with it which is more to be dreaded than anything else.

Nothing need be said to emphasize the vicious character and degrading tendency of the practice of organized and habitual solicitation of any kind of business by attorneys through paid employes. It is especially dangerous to the profession when the potency of the solicitation is enhanced by the promise of whatever financial aid may be needed by the client pending the litigation. There is so much evidence of that sort of thing in this record that the trial judge was outspoken in emphatic denunciation. In his views I agree and I think the case should be referred to the board of law examiners for investigation and disciplinary action if the facts are found to warrant it.

Personally, I see so much evil already resulting from the highly organized and persistent solicitation by attorneys of personal injury business (and I am not now confining myself to that which is imported — a vast amount of local litigation is being solicited away from counsel to whom it rightly belongs) and so much more of discredit to bench and bar yet to come if the practice is not stopped, that I take this opportunity of absolving myself, so far as I may, from responsibility for the continued refusal of the courts of this state to take effective notice of the situation. If those who indulge in the practices now questioned consider them legitimate, they should welcome an investigation, for it would give them the opportunity of demonstrating the validity of their views.

ON APPLICATION FOR REARGUMENT. On June 14, 1929, the following opinion was filed: