An article published in the Utah Law Journal last September recently came to our attention. “ERISA: License to Cheat Lie and Steal for the Disability Insurance Industry,” authored by Loren M. Lambert, is an expose of the state of disability insurance coverage under the Employee Retirement Income Security Act. Lambert introduces his article with these words:
There is an increasingly popular notion that modern litigation is an evil that must be stamped out at all costs. This belief has not only been propounded by the uninformed, but has been championed by some of our leading legal scholars, judges and legislators. They have sought to rarefy litigation by creating unnecessary legal complexity, stripping litigation of its essential components, gutting administrative agencies of staff and money, limiting attorneys fees, and completely eliminating adjudication of some claims.
This trend is reminiscent of individuals who desire optimum physical health without exercise or moderate consumption. All that is needed is a bit of surgery, some electrical stimulation, copious amounts of cellulite reducing creams, and the latest magic pharmacopoeia. This same approach is applied to litigation. The power brokers propose that optimum justice can be obtained through radical surgery, intellectual sophistry, copious amounts of judicial neglect, and a magic statutory bullet here or there. …
[M]odern litigation is neither inefficient nor evil. Litigation is the machine of justice, exquisitely crafted, well oiled and highly refined through centuries of evolution and fine tuning. … To the other extreme, the dismantling and disfigurement of our modern system of litigation into some effete, feeble but seemingly more efficient administrative or arbitrary process controlled by insurance corporations or governmental agencies, is, in the long run, as inefficient, brutal, and arbitrary as was trial by ordeal except that the deepest pocket, and not the more cunning combatant, usually wins.
Lambert then eloquently and persuasively lays out his argument about why ERISA “has created a brutal, arbitrary, and inefficient administrative process controlled by the insurance industry.”
In the 9th Circuit of the Federal District Court where most of our cases are filed, things are not quite as bad as Lambert laments. Even still, in many instances the struggle to get disability benefits paid can be much as he explains. We wondered how the article may have affected attorney Lambert’s legal practice and spoke with him last week. Lambert said the feedback has been mostly positive, from lawyers like us in the same war against the insurance industry. He received calls from as far away as New York (Lambert practices in Utah) and has been able to help people he otherwise would not have reached without the article.
And Lambert isn’t stopping there. He is finishing the final editing on a 25-minute documentary that follows one of his clients through the process of attempting to obtain her disability benefits, complete with all the denials, frustrations, double-talk and various players that make the ERISA process so “brutal, arbitrary and inefficient.” Lambert promised to send us a copy for review.
In the meantime, read Lambert’s article by following this link: http://webster.utahbar.org/barjournal/2008/09/erisa_license_to_cheat_lie_and.html. It’s for everyone who ever wondered why on earth they are forced to hire a lawyer to obtain their disability benefits.
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