Monday, October 25, 2004

Tort Reform and Why it Hurts You

Bush tries to pin all of the woes of the world on the legal system. I will explain to you why Bush style tort reform is no good.

1) The system does need reforming, I will agree to that, but it is not the trial lawyers who need to be reformed. It is the Jurors who need to be educated (I am speaking as a corporate defense attorney). The lawyers do not award the damages, the jurors do. That means you, your neighbor, your plumber, your local librarian, etc. If you, the juror did not award the massive damages, then they would not exist. If you have ever found a way to "skip" out of jury duty and you think these damages are too high, then you are partially to blame. If you blame the system, remember that you are the decision makers in the system.

2) Supply and demand - if you, the juror did not award large damages, then trial attorneys would not bring these suits. A trial attorney only gets paid if he wins. It is up to the jury to make this decision. If the jurors are consistently throwing bad cases out of court, trial attorneys won't bring them. Maybe these people who get these awards deserve them, maybe they don't, but it is the jury who awards them, not the trial lawyers.

3) Big Government in your affairs - If you like smaller government than why would you want the government making these decisions for you? That is what damage caps are, government control. Right now, you get to decide on a local and personal level the fate of the injured persons. You get to hear the story of both the injured and the person accused of injuring them. Why would you want this taken out of your hands and put it in the hands of a legislator? It is better left to the local and individual level.

4) Caps don't work - there have been several states to enact damage caps and none of them have seen overall damages go down. I will analogize it to the speed limit. if the speed limit is 55, you go 55 even though you could go slower. If the speed limit is 65 even though going 55 is safer. People feel an obligation to go the maximum. The same thing in jury awards. Without a cap, a jury may award an inured party $25,000 for a particular injury. But, if you cap it at $250,000, then the jury is more likely to award $250,000 even though the damages would normally only be $25,000. It is pure psychology.

5) More dangerous products - If a business have little incentive to protect themselves from suit, the less they protect you from injury. If they could maximize profits by making a less safe product without the fear of litigation, they will (e.g. the Ford Pinto). If you have ever traveled through a 3rd world country where litigation is rare, you take your life in your own hands. There is no incentive to protect the consumer.

6) Bad doctors - prior to law school I worked in the life/health insurance industry. I have read reports from thousands of doctors. 50% of doctors are really excellent, 25% are good, 20% won't kill you, and 5% are just plain bad doctors. Malpractice premiums are like car insurance premiums. If you get into a lot of accidents, your premium is higher. Enough accidents, and you get forced out of driving. Same thing happens in medicine. If you get sued a lot, your premium goes up. This is unfair to the majority of doctors who are very diligent, but why should a bad doctor be allowed to practice at my, the patients, expense. You would be appalled if you knew the number of people who are diagnosed with a life threatening disease that there doctor just plain missed. And they just didn't miss it once, but over and over. Diseases like diabetes and kidney failure. As the old saying goes... Question: what do you call a person who got all Cs in medical school.... Answer: Doctor. Sounds bad, but some people just should not be practicing medicine.

7) Insurance companies - 50% of an insurance companies profits comes from investments, not premiums. Due to poor management and the likes of Bush buddy, Ken Lay, the insurance companies had to raise premiums to cover their losses. Therefore, the major cause of the increase has nothing to with jury awards. In fact, only 1% of medical costs can be attributed to damage awards.

8) Your life - How much is it worth? How much is the ability to walk worth to you? $10,000? $50,000? $250,000? A million? most of us would not sell our legs for any price, but damage caps are just that, an arbitrary price. you are allowing a legislator to say an eye is worth $10,000, lower extremities are worth $150,000, your life is worth $250,000, etc. I think it is something that we as a society would want to decide for ourselves. Not legislators who are lobbied by the insurance industry.

1 comment:

Boomr said...

I agree that the system that most needs reforming (or outright banishment) is the jury system. It leads to a lack of uniformity across different areas of the country (and even the same state - travel from New Orleans to the next town over, and juries will be substantially different). And it often results in a complete slap in the face to black-letter law. Even in jurisdictions that already have damage caps, juries still regularly award vast sums BEYOND the cap, necessitating further litigation to reduce the award to comply with the cap set by law. The old adage rings true: a jury generally consists of 12 people too ignorant to get out of jury duty.

Personally, I think if the jury system is to be kept, there needs to be a better way to do it. I don't have any experience with criminal law, but I know a tiny bit about grand juries -- they're usually impanelled for a set amount of time, with the same set of jurors hearing a number of different cases. Basically, they're a limited form of professional juror. Why not bring this into the trial stage? If juries are so important, then give them more of an indoctrination into the process than the 5-minute spiel given to a room full of bored jurors at the beginning of jury service, and the limited instructions given by the judge after trial ends. Give them a salary and benefits, make them part of the institution. Or even make extended jury service (6 months to a year) a part of compulsory national or state service, like registering for the draft, but with a required training period prior to actually being seated on a jury. Send 'em to jury boot camp.

Do we really want our laws interpreted by people who, by the very nature of the jury selection process, have to PROVE that they know nothing about the law and the facts of the particular case they're hearing? I sure don't. I guarantee that if you remove the jury system, or alter it to remove its ability to ignore the law and rule by pure emotion, then the so-called "frivolous" lawsuits would decrease dramatically.

Basically, when politicians like Bush say they're fed up with the "frivolous lawsuits and the trial lawyers," they're basically saying that they're fed up with the juries who are swayed by the trial lawyers. Funny that the jurors who get swayed by lawyers are the same voters who get swayed by ultra-partisan campaign rhetoric, replete with the same lies and deceptions that fill a trial lawyer's closing arguments. In essence a campaign is nothing more than a trial in a bigger courtroom, with a bigger jury, and bigger deceptions. Bush and Kerry are both trial lawyers, they just paint themselves with the brush of a different career. By coming out aqainst frivolous lawsuits, they're really indicting their own participation in the big charade.

But that's the fundamental problem with a so-called "democratic" system, isn't it? All aspects of a democratic society are ruled by the people, the majority of whom are in the dead center of the bell curve for any statistical analysis (intelligence, income, religion, political leanings, etc.). The "democratic" system, whether manifesting in the jury system or in the Commeddia del'Arte play that is national politics, is ruled by the least common denominator. That's why trial lawyers and politicians pander to the "common man," don't want to appear to be as intellectual as they could possibly be (OK, maybe not in Bush's case), and do everything they can to make themselves as acceptable to as many people as possible, without making anyone angry. And that's why the country still has big problems.

Juries are bad, M'kay?