Injury Attorney Takes a Loud Swipe at Prop. 51

Newspaper clippings dominate James Boccardo’s immense office.

Proudly mounted, they itemize the broken bodies that span Boccardo’s 52-year career as one of America’s foremost personal injury attorneys. He gloats in recounting them.

There is a $3-million judgment for a 19-year-old who dove into the San Lorenzo River--and was pulled from it a quadriplegic. There is a $3.1-million settlement for a high school student who, in a similar accident, dove into a Capitola lagoon and broke his neck.

There is an $8.6-million settlement for a 16-year-old who clambered onto a freight train and grazed a 12,000-volt electrical line, burning his legs and arm so severely that they had to be amputated.

It is unlucky people like these, Boccardo wants everyone to know, who stand to suffer if Proposition 51, the so-called “deep pockets” initiative on the June 3 ballot, succeeds in limiting victims’ ability to collect financial damages.

“It is taking away from the victim’s rights,” he shouts from behind his desk, his fist pounding its broad top, “to benefit those lousy, miserable insurance companies.

“You can’t have a bunch of corpses, uncompensated widows and orphans and cripples, as they want to accomplish. That’s what they want to do. What they really want to do is get the losses down and the premiums high, so they can make a helluva lot of money.”

For Boccardo--and his fellow plaintiffs’ lawyers--Proposition 51 lights an explosive outrage usually reserved for courthouse adversaries.

Ironically, he also perfectly mirrors the image that his electoral adversaries--Proposition 51’s backers--seek to etch in the public’s mind: A wealthy lawyer living the good life by winning lawsuits that drive insurance premiums into financial orbit, forcing devastating cuts in local services and bankrupting cities.

At 74, he is rich. Besides his English-style manor in Los Gatos, he owns vacation houses in Rancho Mirage and on the Monterey Peninsula, a home from which one can gaze at the 18th green of Pebble Beach’s famed golf course. He owns plots of commercial land in San Jose and an airplane with a full-time pilot. Eight cars are housed at his homes; others are squirreled away in assorted garages. One is the cherry-red Ferrari whose portrait decorates his office.

But Boccardo thinks little of the rich-lawyer symbolism.

“The courthouse is a beautiful edifice dedicated to the administration of justice,” he said, adopting for the moment a more docile tone. “On the front of that edifice is a door, and the door has a lock, and the lock needs a key, and the key to get through that door is. . . .

“Money! Without money you can’t enter that portal. Now the lawyer who takes this case supplies the money, so he’s gambling his own money.”

If it is a gamble, Boccardo has gambled and won. His foray into personal injury law began in 1934, when the then-recent Stanford University Law School graduate set up an office in the Lane Funeral Home in Morgan Hill.

Half a century later, his reputation is respected by attorneys nationwide, and his San Jose-based firm stands as one of the largest personal injury firms in the United States. Three dozen attorneys work for him; together they handle more than 4,000 cases a year.

The firm fills four floors of the 12-story building Boccardo built in 1962 to house the Community Bank, which he organized to supply loans to clients awaiting court judgments. Besides the lawyers, there are paralegals and investigators, a photographer and an engineer, even a staff economist. The Christmas parties, Boccardo admits, do get crowded.

Millions in Awards

Altogether, the Boccardo law firm has won more than $300 million for its clients, its founder says.

All that was done under existing liability law, which holds that any defendant in a suit can be forced to pay the full amount of damages, even if the blame was shared.

Proposition 51 still could hold a co-defendant who can afford it fully responsible for a victim’s actual medical damages and lost wages. But the amount of non-economic “pain and suffering” awards would be limited to the percentage of blame--$30,000, for example, if a defendant were found 30% responsible for an accident resulting in $100,000 in “pain and suffering” damages.

Backers of Proposition 51, among them insurance companies and municipal officials, argue that cities have borne more than their share of damages in court cases, because they often have more money or insurance than their co-defendants--in trade parlance, the deepest pockets.

Boccardo says the proposition is an immoral and “vicious” attack on victims, part of a plot by elitist insurance companies to make money on the backs of the commoners he has spent a lifetime representing. His opposition to it takes on the fervor of a moral crusade, energized by his longstanding loathing of insurance companies.

“It’s not a matter of justice and fairness that they want it. It’s a selfish motive,” he bellowed. “A selfish motive is also ours in wanting the victims to be compensated, but ours is a more moral, more righteous selfish interest, because the injured guy has nowhere to go.”

Protection for Injured

He dismisses with disdain the chief argument forwarded by Proposition 51’s backers: That no defendant should be forced to pay more than his financial share. By including a defendant among the liable, Boccardo says, the jury is saying that but for his actions, the accident would not have occurred. If one defendant has to pay more than what he considers to be his share, he should take that up with his fellow defendants.

“The philosophy of our whole system has been that the injured person is to be protected . . . . That’s why we have insurance, OK? To take that risk and turn it over to somebody else for a consideration, a premium.”

Attention focused on multimillion-dollar settlements and judgments makes them sound like easy money, routine rather than rare--and ignores the fact that most of the cash goes to medical bills, he argues.

“A quad(driplegic) case doesn’t walk in, or isn’t carried in, to your office every day,” he said. “If you get one in a decade, you’re doing well. . . .”

In a Santa Clara County trial resulting from the man jumping into the San Lorenzo River, Boccardo submitted evidence that lifetime medical costs for the victim, made a quadriplegic, would total $2.8 million. The jury awarded Boccardo’s 19-year-old client $3 million from the Southern Pacific Railroad.

“What did he get for being a quad? Two hundred lousy thousand dollars,” Boccardo thundered. “After he paid his attorneys’ fees, he didn’t even have that. . . .”

Though Proposition 51 would not have affected the award in this one-defendant case, Boccardo said he believes it illustrates that juries are anything but generous.

“I have never found juries to be overboard. To the contrary, in most of the cases, I call them cheap, miserably cheap.”

$750,000 Fee

What is not cheap in such cases are the attorney’s fees. In the case against Southern Pacific Railroad, Boccardo earned $750,000, or 25%. In most cases, a plaintiff’s attorney earns a contingency fee close to one-third of the total award, which largely comes from the non-economic damages portion of the judgment. Many of Proposition 51’s backers argue that the lawyer’s percentage is too high.

Boccardo defends contingency fees.

“I wonder what these people who squawk about contingent fees would want an injured person to do who has no assets?” he asked.

“It costs money to prosecute these cases. . . . I’ve had cases where I have invested in the case as much as $250,000 of my own money, plus several years of time and taking depositions and interrogating experts and putting the case together. The case is lost, it’s gone. So you have to make that up with some other case. Well, maybe you don’t spend quite that amount of money, the case is easier and you get a substantial fee.”

Instead of Proposition 51, Boccardo favors a system whereby a judge hearing a case would be able to set a lawyer’s fees, based on the lawyer’s effort. He also supports the establishment of a federal insurance corporation, like that which guarantees bank investments, to underwrite large settlements if insurance companies truly cannot afford to pay the money.

The passage of Proposition 51 would force plaintiff lawyers to more closely scrutinize the cases they accept, because the new limits placed on “pain and suffering” damages could mean lower fees, Boccardo said. Some otherwise worthy deep-pockets cases would simply be refused.

“We could spend a lot of money on experts and what not and the amount of the fee would not justify taking it,” he said.

He asserts, however, that the proposition would have little effect on his practice. For him, there are always new cases coming in the door. And it does not prompt him to think about retiring, to tend full time to his real estate holdings or to play more golf at the five country clubs to which he belongs.

“Nothing pleases me more than making an insurance company pay,” he said with a smile.