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Ways in Which Trial Lawyers Make a Difference, Patsons Press, 2016

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Ways in Which Trial Lawyers Make a Difference
By Bill Trine
I was asked to write an article for this issue of the Warrior describing how I
became involved in the prison reform movement, and how other trial lawyers can
become involved in activities and programs that might make a difference. This
request caused me to again think about this animal called a ‘trial lawyer’.
Why would someone want to be a trial lawyer? Why do some trial lawyers
make a career of representing the people, and others representing corporate
America or the government? Why do some trial lawyers become public defenders
or private-practice criminal defense lawyers, rather than prosecutors? And what
type of trial lawyer could become a role model for those who want to someday
end their career with the satisfaction that they helped promote justice where it
was needed the most.
Let’s start with the premise that a trial lawyer must make money to
practice law and to make money, must be successful as a trial lawyer. How much
is enough? There are plaintiff’s trial lawyers who become rich because they are
very talented and successful in the courtroom and are very selective in the cases
they take. Some of these lawyers use their wealth for the benefit of the public
good. Some do not. I am not suggesting that trial lawyers who only focus on big
money-making cases do not obtain justice for their clients. But the result of
screening and selecting only those clients who have cases that will produce
enormous verdicts is that a large segment of the population must look elsewhere
for justice.
Fortunately, there are many trial lawyers who are not satisfied with just
filing lawsuits and making money, but also want their lawsuits to result in justice
for their clients and perhaps also advance the public good in many other ways.
Why are lawyers often dissatisfied with just making money? Perhaps it’s because
the practice of law for money alone, does not produce lasting satisfaction. But

helping those in need, can enrich the lives of trial lawyers and produce some
happiness throughout a long and difficult career
Most of the lawyers who attend the Trial Lawyers College fall into this
category. They are often trial lawyers who entered the College feeling “burned
out”, feeling that the practice of law was no longer worthwhile (or, for younger
lawyers, looking for direction and focus), and looking for ways to feel energized
and satisfied that the work that they do is important. Those Warriors then leave
the College anxious to return and do battle, not just to make money, but to make
a difference in the lives of many.

Merchandising People for Profit
These lawyers are to be distinguished from that segment of the legal
profession who are in the business of merchandising people for profit, regardless
of whether justice for the client is achieved in the process. We sometimes see this
when class actions are filed that financially benefit the lawyers, but not the
represented members of the class. We see this among those lawyers who file
claims or lawsuits, intending to do minimum work, with the primary goal of
obtaining a settlement, no matter how unfair or unreasonable the settlement
might be. These are so-called ‘litigators’ who never intend to proceed to trial, but
just maximize their profits.

Unprofitable Cases that Cry for Justice
My hat goes off to the many great trial lawyers who are financially
successful because they have the talent to obtain huge verdicts for deserving
clients, but who also take unprofitable cases that cry for justice: cases that could
advance the public good; and cases that could make a difference in the lives of
many people. Some of the lawyers who immediately come to mind include our
own Gerry Spence who obtained substantial verdicts and used the proceeds from
those verdicts to sometimes represent indigent deserving defendants in criminal
cases. He then started the nationally renowned Trial Lawyers College, which has
never turned away an applicant based on inability to afford tuition, which trains
lawyers to serve those who are poor, forgotten and damned.

Another great trial lawyer who falls into that category is Joe Cotchett in
California. Like Gerry, he was also selected to be a member of the prestigious
National Trial Lawyer Hall of Fame for his work nationwide in civil rights, and
litigation on behalf of the under-privileged in our society. He and his law firm have
successfully represented thousands of deserving clients in jury trials and class
actions that made a difference in the lives of those clients. His most recent book,
The People vs. Greed: Stealing America, 1 is an example of how a trial lawyer can
use the publication of a book to advocate for progressive political and judicial
change nationwide for the benefit of the public.
I could go on and name some of the trial lawyers who have had
phenomenal success in using lawsuits that have helped to regulate various
industries that harm or poison our citizens; e.g., the tobacco, asbestos, and
chemical industries; the automobile industry; the lead paint, drugs, and health
care industries; just to mention a few. Sometimes just the filing of a lawsuit will
produce damaging discovery that, when made public, forces an entire industry to
enact safety standards that will save the lives many people.
This occurred when Chuck Sedmak brought suit against Clark Equipment
Company in 1980 2, claiming that had a seat belt been installed on forklifts
manufactured by Clark, he would not have been paralyzed and brain damaged
when the forklift he was operating tipped over. His chest was crushed by the
falling object protection structure (FOPS), which forklift manufacturers began
installing on forklifts in the 1960’s. This overhead protection device also served to
prevent the forklift from rolling when it tipped over. Before the use of FOPS, the
operator sustained little or no injury when a forklift tipped over and the operator
fell out. However, with the use of FOPS, the industry quickly learned that
operators were being decapitated or crushed by the FOPS in a tip over, and tip
over’s were frequently occurring because the FOPS increased the instability of the
lift.
Clark Equipment Company was sufficiently alarmed to propose that the
members of the Industrial Truck Association (ITA) pass a resolution that all
members begin installing seat belts on forklifts. In the 1970’s, a majority vote of

the ITA defeated Clark’s resolution. Later, when Sedmak brought suit against Clark
in 1980, a retired, cooperative Clark engineer informally provided me with a box
of smoking gun documents consisting of ITA minutes of engineering committee
meetings and Clark internal documents. The documents established that the
industry, with knowledge of mounting injuries and deaths, conspired to delay the
installation of seatbelts and bucket seats on forklifts. This information was then
widely distributed prior to a substantial settlement with Clark. With public
knowledge of Clark’s complicity in this conspiracy, other lawsuits were soon filed,
and in 1983, Clark nationally advertized the free installation of seat belts on all of
its forklifts.3 The rest of the industry did likewise and seatbelts became standard
equipment, thus preventing additional catastrophic injuries and deaths.

Trial Lawyers Working in the Trenches
So, some lawsuits serve to regulate industry and make a difference by
preventing countless injuries and deaths. But what about the thousands of
nameless lawyers who are working in the trenches, day after day, year after
year, seeking justice for the homeless, the poor, the forgotten, the defenseless
and those harmed by the greed and inhumane conduct of others? These are
Lawyers who, because of the nature of the cases they handle and the clients they
represent, may never receive national recognition or be admired or envied for
obtaining multi-million dollar verdicts or settlements.
But these lawyers, by the thousands, constitute the foundation of our civil
and criminal justice systems because they represent the poor people who would
otherwise be shunted to Legal Aid Clinics which are not staffed by experienced
trial lawyers. They represent indigent criminal defendants who would not
otherwise receive an adequate defense. They represent incarcerated prisoners
who often desperately need good legal representation. In short, these are the
lawyers who constitute the foundation of justice for millions of people: for
refugees and immigrants, for families and children being held in detention
centers, for the poor who must sometimes fight to obtain low income housing
and food stamps; for the homeless charged with the crime of sleeping in a public
place; and for lives ruined by corporate greed.

Search for Opportunities to Make a Difference
For those who want to do more to make a difference, you will have many
opportunities to do so. Perhaps by taking a particular risky case that could change
the law and benefit thousands. You may fail now and then, but without assuming
the risk, you will never know. Instead of waiting for an opportunity to present
itself, you may want to create one by organizing a group of trial lawyers to help fill
a needed void in our justice system, or start a non-profit organization designed to
do so. There is certainly well-known precedent for such ambitious projects, both
large and small. Ralph Nader planted many such seeds, and some were cultivated
by lawyers who then gave birth to non-profits like Public Citizen and Trial Lawyers
for Public Justice. Morris Dees, who started the Southern Poverty Law Center, is
another good example.
But most of us will have an opportunity to contribute on a much smaller
scale and many TLC graduates are doing so. Those on the teaching staff at the
College and at TLC seminars are contributing to the success of hundreds of trial
lawyers who are working in the trenches seeking justice for the needy. Another
example is TLC graduate Pablo Sartorio, assisted by my daughter, TLC graduate
Cheryl Trine, who organized a group of trial lawyers to participate as pro-bono
volunteers in Obama’s prison Clemency Project. There are TLC graduates now
making a difference as Judges, Public Defenders, or as politicians. The
opportunities are endless.

Opportunities to Change the Law
It was early in my career when I discovered that a lawsuit for a deserving
client could not only result in obtaining some justice for that client, but could
open the door for justice for many other people. This would occur when a client
could only obtain justice if the law was advanced or changed at the appellate
level. So I had many opportunities to do that in the 1960’s and 1970’s in
representing clients who could not pursue claims that cried out for justice
because the existing law did not recognize a claim. Justice for that client could
only be achieved by changing the law through judicial intervention. My primary

purpose was to obtain justice for a particular client, but it also created an
opportunity to change the law for the benefit of the general public. Every trial
lawyer may have similar opportunities to make a difference during her or his
career.
For example, in 1968 I represented Shirley Rugg, an impoverished single
mother whose job was threatened by tactics commonly employed by collection
agencies at that time --- calling all hours of the night with sundry threats, calling
the debtors employer and threatening garnishment without filing suit and
constantly harassing the debtor. Shirley was a mental wreck and about to lose her
job when I filed suit alleging the torts of outrageous conduct and invasion of
privacy. The trial court dismissed the complaint, as anticipated, but the Colorado
Supreme Court unanimously reversed, recognizing the newly adopted torts of
Outrageous Conduct and a civil Invasion of Privacy. 4
In 1970 I brought suit on behalf of Patrick Wright, a five-year-old boy who
ran into a sliding glass door containing clear plate glass which shattered, cutting
the boy. Suit was brought against the home builder who installed the door,
alleging that the glass door was defective because it gave an “illusion of space.”
The complaint was dismissed for failure to state a claim recognized by Colorado
law, and because the boy was not in contractual privity with the homebuilder. In
reversing the trial court, Colorado adopted the “illusion of space” theory of
liability and extended it to persons injured as a result of the negligent
construction of a home, eliminating the requirement of privity. The court also
ruled that the buyer of a new home is protected by implied warranties. 5
My contributions to changing Colorado law was the direct result of taking
cases often rejected by other lawyers because existing law would not permit a
claim, and I took delight in the challenge and enjoyed appellate work. In 1976 the
telephone company servicing Colorado had immunity from lawsuits brought by
customers for errors and omissions in telephone directories pursuant to a
regulatory agency tariff. I represented Charlie Shoemaker, an elderly gray haired
real estate agent, whose name was omitted from the yellow pages for two
straight years, asking the court to rule that the company’s conduct was “willful

and wanton” and that such conduct should be an exception to the immunity
granted by the tariff. The Colorado Court of Appeals agreed, 6 and we then
proceeded to trial receiving a jury verdict for both compensatory and punitive
damages.
So, seeking justice for a particular client may sometimes provide an
opportunity to make a difference in the lives of many other people similarly
situated. We must seize upon those opportunities when they occur. Other
examples of this include a lawsuit I brought on behalf of Jim Roberts against
Nissan Motor Corporation for Nissan’s manufacture of a hard dashboard that
would not cushion the face when it struck the dashboard in a vehicular collision.
The trial court adopted my tendered instruction on strict liability and the jury
verdict for my client was affirmed on appeal and Colorado adopted “crashworthy
design” as a strict products liability theory. 7
In 1980, the law of strict liability was extended to the distribution of
propane gas when a lawsuit brought by Mr. VanHoose, who was severely burned,
alleged both negligence in the distribution and strict liability. On appeal, the
Colorado Supreme Court adopted the “highest duty” standard in the distribution
of propane gas, and also applied strict liability under section 402A of the
Restatement of Torts (2d) to the sale and distribution of propane gas. 8
Often a prospective client’s story cries for justice when the existing law
would not support a claim. This presents an opportunity to fight for a change in
the law that would not only benefit the client, but assist others similarly situated
in future years. Thus in 1980 I represented Mr. Bloskas in a medical negligence
lawsuit against a physician who failed to inform him that the physician had never
performed a total ankle replacement, which was being recommended, and which
failed. I tendered an instruction on “negligent misrepresentation”, as defined in
Sec 311 of the Restatement of Torts (2d), which the trial court rejected. The
Colorado Supreme Court reversed and adopted the tort of Negligent
Misrepresentation, and applied it to the physician-patient relationship, which
obviated the need for expert testimony to establish the negligence. This new
application became the subject of an ALR annotation. 9

I could give other examples of clients’ stories that provided an opportunity
to not only seek justice for the client, but advance or change the law for the
public’s benefit. 10 These illustrate the opportunities that each of us will have
during our career as trial lawyers to make a difference in that fashion, but it often
requires assuming the risk of financial loss and substantial time consumed when a
loss occurs. Look for the opportunities and assume the risk. I often failed, but I
tried.

Prison Reform
So, how and why did I become involved in the prison reform movement as I
approached the age of 70? And what can trial lawyers now do to help eliminate
the private prison system, and correct the evils existing in all of our prisons and in
our criminal justice systems? I have previously described the history and re-birth
of the private prison industry and the disastrous consequences of merchandizing
people for profit. 11 I have also previously described the lawsuits I began filing 16
years ago to seek justice for prisoners and try to promote needed changes in our
prison systems. 12
However, much to my dismay, little progress has been made and the evils
existing in our prison systems have not been suppressed, but continue to
victimize almost everyone involved in mass incarceration. The flagrant
constitutional and human rights violations continue unabated. There is even
greater need to eliminate private prisons, for-profit private detention centers,
and the privatization of prison related services by corporations that are getting
rich on the backs of poor people nation-wide. The necessary changes will require
the combined efforts of the executive, legislative and judicial branches of our
government, and the trial lawyers of this nation must become more actively
involved to insure that these changes occur. There are many areas in which
justifiable lawsuits can assist in promoting the needed changes. Those areas
include:
• The abuse and misuse of solitary confinement. 13
• Privatized prisoner transportation services. 14

• Prison created environmental contamination and ecology hazards.
15

• Privatized food services: unsafe and unsanitary conditions. 16
• Price gauging prisoners and their families on phone rates, visitation
charges, and computer Use.17
• Injuries and death from use of excessive force and brutality.
• Lack of proper medical care and treatment.
• Interference with family visitation and communications.
• Damages for wrongful convictions.
• Riots created by inhumane prison conditions.
The opportunities for trial Lawyers to assist in creating change are present
and easily accessed. Don’t just wait for a contact from a possible client with a
justifiable case that might make a difference. Search for the right case. For
example, you might contact national organizations that are often looking for trial
lawyers to assist in prisoner litigation and become a volunteer in your jurisdiction.
Some of the contacts in national non-profits that come to mind are: Paul Wright
(pwright@prisonlegalnews.org) and Alex Friedman (stein919@gmail.com) at the
Human Rights Defense Center (HRDC) , the Publisher of Prison Legal News; and
David Fathi , the director of the ACLU National Prison Project in Wash. D.C. (see,
https;//www.aclu.org/aclu-national-prison). You might contact your local ACLU
office. In short, you can easily actively seek to become involved if you are
motivated and inclined to do so.

Conclusion
Trial lawyers who represent the people and not corporations or the
government, have the unique opportunity to not only seek justice for their clients
in the courtroom and in jury trials, but the opportunity to advance the public
good in many other ways, and make a difference in the lives of many people.
There are thousands of trial lawyers who are involved politically, economically
and socially in promoting policies and changes that benefit the poor, the
forgotten, the defenseless, the homeless, and the many people who
unnecessarily suffer under existing societal conditions and laws. Trial lawyers,

who are only interested in merchandising people for a profit and not doing more
for the public good, are missing the opportunity to look back at careers end with
the satisfaction of having made the difference in the lives of far more people--- of
retiring feeling proud to have been a trial lawyer.
Bill Trine lives in Boulder, Colorado, with his wife Jeni and their two dogs. He
recently retired from his practice of law, where he was a proud and active trial
lawyer for 55 years. He is a past president of the Colorado Trial Lawyers
Association, a founder and past president of the Washington D.C. based Trial
Lawyers for Public Justice (now ‘Public Justice’), and on the Board of Directors of
the Florida based Human Rights Defense Center which publishes Prison Legal
News. He has been on the teaching staff of the Trial Lawyers College in Wyoming
since its inception in 1994. He was selected by his peers for listing in “Best Lawyers
in America” every year since it began publishing in 1978 until his retirement in
2015.

1

By Joesph W. Cotchett, (2016), Printed at Patsons Press, Santa Clara California

2

Sedmak v. Clark Equipment Co., Fremont County District Court, Colorado, Civ. Action No. 80-CV-135.

Clark’s announcement in the October 3, 1983 issue of Business Week states: “Clark engineers have designed a
seat attachment that ‘wraps around’ forklift operators and, combined with a seatbelt, keeps operators in place
when the truck accidentally overturns. This system is a result of recent breakthroughs in testing techniques and
has been proven in both simulated and live situations. It is being offered by Clark dealers for installation on your
Clark trucks at no charge to you …We urge you to call our toll free number …”
3

4

Rugg v. McCarty, 476 P.2d 723 (Colo. 1970).

5

Wright v.Creative Corp., 498 P.2d 1179 (Colo.App. 1972).

6

Shoemaker v. Mountain Bell Tel. & Tel., 559 P.2d 721 (Colo. App. 1976).

7

Roberts v.May and Nissan Motor Corp., 583 P.2d 305 (Colo. App. 1978).

8

VanHoose v. Blueflame Gas Inc., 642 P.2d 36 (Colo. App. 1982) aff’d 679 P.2d 579 (Colo.1981).

9

Bloskas v. Murray, 646 P.2d 907 (Colo. 1982).

See, Rimkus v. Northwest Colorado Ski Corp, 706 F.2d 1060 (10th Cir.1983) (permitting evidence of post-remedial
repairs to rebut a claim of contributory negligence, which the 10th Circuit adopted as a new exception to Federal
Rule 407). This case was then relied upon by the 10th Circuit in allowing evidence of post-accident design changes
in product liability cases based on strict liability. See, Herndon v. Seven Bar Flying Serv., 716 F.2d 1322 (10th Cir.
1983.
10

Also see, Sanchez v. Connection Gen. Life Insurance Co., 681 P.2d 974 (Colo. App. 1984) (After a life insurance
company refused to pay the insurance proceeds when death occurred before the policy was issued, the Colorado
appellate court adopted the “reasonable expectation” doctrine of life insurance coverage based on a conditional
receipt, and ordered payment.)
11

The Warrior, Winter 2005, p. 11.

12

See, Bill Trine, A Broken Criminal Justice System and Prisons for Profit, The Warrior, Fall 2012, p.7

.

See, Jean Casella and James Ridgeway, Audit of Solitary Confinement in Federal Prisons: An Inside Job Reaches
Foregone Conclusions , Vol. 25 Prison Legal News 11, page 22 (Nov.2015).; also see, Matt Clark, ACLU Report:
Woman Uniquely Harmed by Solitary Confinement, Vol. 27 Prison Legal News 5 (may 2016)
13

See, David Reutter, Privatized Prisoner Transportation Services Problems, Vol.26 Prison Legal News 12, page 60
(Dec. 2015).
14

See, Dashka Slater, Prison Ecology, Vol. 26 Prison Legal News 12, page 39 (Dec. 2015); also see, Laura Cepero,
Toxic Traps: Environmental Hazards Threaten Two Federal Supermax Prisons, Vol. 26 Prison Legal News 11, page
34, (Nov. 2015); Panagioti Tsolkas, Incarceration, Justice and the Planet: How the Fight Against Toxic Prisons May
Shape the Future of Environmentalism, Vol. 27 Prison Legal News 6 (June 2016).
15

See Zoukis & Bower, Aramark’s Correctional Food Services: Meals, Maggotsand Misconduct, Vol. 26 Prison Legl
News 12, (Dec. 2015)
16

See, Carrie Wilkinson, Breaking News! FCC Votes to Further Reform Prison Phone Industry, Vol. 26 Prison Legal
News 12, page 40 (Dec. 2015); and see, Carrie Wilkinson, A “Quantum Leap” Isn’t far Enough for the Prison Phone
Industry, Vol. 27 Prison Legal News 5, page 36 (May 2016).
17

 

 

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