The Deadman Night Rider

A forum for evening students of the SMU Dedman School of Law and other outlaws..

Sunday, August 14, 2005

Adulthood in recession...

The People’s Tax Lawyer has a post up today alerting estate and trust lawyers to the danger they may face from malpractice suits brought by the beneficiaries of instruments they set up, based on the success of suits brought against trial attorneys for not proposing structured settlements as opposed to lump sum payments and failing to arrange for financial experts to advise their clients on awards they receive. The rationale behind these suits is that because the uninformed recipient is unable to manage the sudden influx of wealth wisely, the money is quickly wasted instead of being used for the purpose for which it was rewarded. The PTL points out that beneficiaries of wills and trusts are in a similar position, and may be able to bring suit for similar ‘negligence’.

My experience is a bit limited, but I think the profit motive is probably taking care of this – most estates large enough to generate transfers of wealth large enough to cause this kind of problem have financial advisors actively vying for their attention. Even more extreme, though, is the example the PTL uses of a beneficiary with a history of drug or alcohol abuse suing an attorney for not building safeguards such as sprinkling provisions into the trust essentially to protect the client from himself. That part of the post feeds into a nagging question I’m carrying with me into law school – it sometimes seems like the concept of adulthood is eroding, and that the law is contributing, or at least acceding, to the process.

I encounter the ‘reasonable person’ standard alot in reading about the law – what would a reasonable person do or think, what would a reasonable person expect to happen, etc. That seems like an eminently fair standard to me, except when I see cases like the ones the PTL is describing. Can’t a reasonable person be expected to judge between structured settlements and lump sums? Or be relied upon to use the funds they are awarded for their intended use? When does the attorney-client relationship morph into a parental relationship? Perhaps there is a different standard for these cases, but I can’t believe the law would systematically assume the lack of the most basic abilities – it’s insulting, really.

Following in the footsteps of the tobacco settlement, there’s a determined contingent out there that wants to run the food industry through the same legal wringer on the grounds that the general public can’t defend itself against bad diet choices due to the abundance of cheap, unhealthy food, targeted advertising, etc. In Roper v. Simmons, the Supreme Court based its decision to overturn capital sentences for minors partly on research that the brain doesn’t stop developing until age 25. Everyone has seen or read about hundreds of examples of lawsuits shifting responsibility in what seem like a ridiculous fashion. I’m anxious to find out more about this to determine if this is merely a problem of perception or if there’s really something to it. I’ve heard people say it’s time to take the law back from the lawyers – maybe that’s a good starting point.


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